author: WARNER, J.

text:
    WALLISVILLE CORPORATION, INC., a Florida Corporation, Appellant, v. Chris McGUINNESS, Dodie’s Reef, Inc., a Texas Corporation, Appellees.
    No. 4D13-4112.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      David A. Yarema of David A. Yarema, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   WARNER, J.

The trial court dismissed appellant’s complaint for damages based on the appel-lee’s alleged failure to return a deposit made on a gambling website. It determined that section 849.26, Florida Statutes (2013), precluded such a suit. We reverse, because there are insufficient allegations in the complaint for the court to dismiss this claim based upon the statute.

Appellant filed a complaint against ap-pellees Chris McGuinness and Dodie’s Reef, Inc. for civil theft, conspiracy to commit civil theft, conversion, fraud, and unjust enrichment. The complaint alleged that in January 2013, appellant gambled on a website called hustler365.com, which was owned or operated by appellees and believed to be hosted on an off-shore website. “Prior to placing the wagers,” the complaint alleged, appellant “gave [appellees] a $10,000.00 deposit.” Appellant “won approximately $55,400.00 from the above-described wagers.” Appellees later paid appellant $32,000 via two wire transfers, but had not paid appellant its remaining winnings or returned the deposit.

The complaint attached banking records showing the two payments appellees did make to appellant. It also attached text messages wherein appellee McGuinness allegedly discussed paying appellant the money owed. It did not attach any other documents with respect to the $10,000 deposit.

Appellees moved to dismiss the complaint. They argued, among other grounds, that the complaint was barred by section 849.26, Florida Statutes (2013), as an attempt to collect on a gambling debt. Thereafter, with leave of court, appellant filed an amended complaint. The amended complaint dropped the conspiracy count, as well as the fraud count, leaving only claims for civil theft, conversion, and unjust enrichment. The amended complaint was based only on the $10,000 deposit, rather than the gambling winnings, and sought $30,000 in treble damages under the civil theft statute. It alleged the deposit was given to appellee McGuinness “[p]rior to any gambling activity and before placing any wagers.... ”

Appellees moved to dismiss the amended complaint, again arguing that the complaint sought to recover on a gambling debt, which was unenforceable under section 849.26, Florida Statutes (2018). After a full hearing, the trial court granted the motion and dismissed the complaint, refusing to change its ruling after an extensive motion for rehearing.

An order dismissing a complaint for failure to state a cause of action is reviewed de novo. Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So.2d 683, 684 (Fla. 4th DCA 2008). In considering a motion to dismiss, the trial court “may not properly go beyond the four corners of the complaint in testing the legal sufficiency of the allegations set forth therein.” Id. (quoting Hewett-Kier Constr., Inc. v. Lemuel Ramos & Assocs., Inc., 775 So.2d 373, 375 (Fla. 4th DCA 2000)). The party moving for dismissal must “admit[] all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.” Id. (quoting Palumbo v. Moore, 111 So.2d 1177, 1178 (Fla. 5th DCA 2001)). “Further, a motion to dismiss cannot be granted based on an affirmative defense unless the defense appears on the face of a pleading.” Pac. Ins. Co., Ltd. v. Botelho, 891 So.2d 587, 590 (Fla. 3d DCA 2004).

Section 849.26, Florida Statutes (2013), provides:

[1.] All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, [2.] when the whole or part of the consideration if [a.] for money or other valuable thing won or lost, laid, staked, betted or wagered in any gambling transaction whatsoever, regardless of its name or nature, whether heretofore prohibited or not, or [b.] for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered, [3.] are void and of no effect; [4.] provided, that this act shall not apply to wagering on parimutuels or any gambling transaction expressly authorized by law.

§ 849.26, Fla. Stat. (2013) (numbering added). This statute bars enforcement of gambling debts even if the debt was incurred in another state where the gambling was legal. See Carnival Leisure Indus., Ltd. v. Herman, 629 So.2d 882, 882 (Fla. 4th DCA 1993).

Appellant relies on Young v. Sands, Inc., 122 So.2d 618 (Fla. 3d DCA 1960), which was, according to the opinion, the first time section 849.26 had been construed by a Florida appellate court. There, a casino attempted to collect $1,600 it lent a patron. Id. at 619. The money was paid to the patron via a check made out to cash. Id. As an affirmative defense, the patron invoked section 849.26 and argued that “the check was given for money advanced for the purpose of gambling at a casino ... and that [the casino] had knowledge of that intent.” Id. Following a bench trial, the trial court entered judgment for the casino. Id.

The Third District held, “The clear language of [section 849.26] provides that a check given for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being wagered is void.” Id. However, the Third District noted that the casino’s manager testified “that on cashing the check he had no knowledge of the purpose for which the defendant intended to use it. The defendant’s testimony was to the contrary.... ” Id. The Third District concluded,

Thus there was a conflict in the testimony as to the nature of the payment which was made on the check and as to whether the party cashing the check had knowledge of a purpose to use or apply the proceeds in gambling. While it is hard to believe that such a transaction conducted in a gambling casino in a Las Vegas hotel could be disassociated from gambling so as to escape invalidity under the statute, it was for the trial judge, acting without a jury, to resolve the conflicts, weigh the evidence and draw the reasonable inferences therefrom, and the judgment for the plaintiff [casino] was not against the manifest weight of the evidence.

Id. at 619-20 (emphasis added). Cf. Hilton of San Juan, Inc. v. Lateano, 6 Conn. Cir.Ct. 680, 305 A.2d 588, 539-40 (1972) (on summary judgment, finding similar Connecticut statute barred casino’s attempt to collect loan paid to defendant in casino chips; rejecting casino’s argument that loan was not covered by statute because defendant could have used chips to pay for things in the casino’s hotel other than gambling).

Young stands for the proposition that for a transaction to be unenforceable under the statute, there must be some knowledge that the proceeds were intended to be used for gambling. In this case, however, the record is insufficient for us to determine, as a matter of law, that a claim seeking the return of the deposit is a transaction void under the statute. It seems likely that the purpose of the deposit was to cover losses appellant might subsequently incur while gambling on ap-pellees’ website. If so, recovery of the deposit would likely be barred as “for the repayment of money ... advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered.” § 849.26, Fla. Stat. (2013). However, on a motion to dismiss, all reasonable inferences must be drawn in favor of the plaintiff. See Stubbs, 988 So.2d at 684. As there are no allegations as to the terms on which the deposit was being held, we cannot conclude that part of the consideration was to repay an advance made by the website at the time of the gambling transaction.

Furthermore, appellees’ motion to dismiss based on section 849.26 raised an affirmative defense. See Young, 122 So.2d at 619. Affirmative defenses “cannot ordinarily be raised by motion to dismiss” unless “the face of the complaint is sufficient to demonstrate the existence of the defense.” Ramos v. Mast, 789 So.2d 1226, 1227 (Fla. 4th DCA 2001); see also Fla. R. Civ. P. 1.110(d) (“Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b)[.]”). Here, given the complaint’s minimal factual allegations regarding the deposit, the trial court did not have enough information to decide the merits of appellees’ affirmative defense. See Ramos, 789 So.2d at 1227 (“[A]ppellant’s complaint did not set forth sufficient allegations regarding the bar proceedings to enable the trial judge to address the merits of the collateral estop-pel defense asserted in appellees’ motion to dismiss.”); Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30, 34 (Fla. 4th DCA 2004) (finding affirmative defense did not appear on the face of the complaint, noting, “[t]he complaint is permissibly sketchy”); see also Grove Isle Ass’n v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014) (“Because affirmative defenses may be avoided by facts pled in a reply, the allegations of the complaint must also conclusively negate the plaintiffs ability to allege facts in avoidance of the defense by way of reply or dismissal is inappropriate.”). Thus, it was error for the trial court to dismiss the complaint based on appellees’ affirmative defense, because the complaint did not contain sufficient allegations regarding the purpose of the deposit to determine whether appellant’s claim was barred by the statute.

We therefore reverse the dismissal of the complaint and remand with directions to reinstate the complaint and for further proceedings thereon.

TAYLOR and KLINGENSMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose M. RAFAEL, Appellant, v. Michael D. CREWS, Secretary, Department of Corrections and Pamela Jo Bondi, Attorney General, Appellees.
    No. 4D14-2409.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Jose M. Rafael, South Bay, pro se.
    No appearance for appellee.
   PER CURIAM.

Jose Rafael appeals pro se the non-final Order Transferring Petition for Habeas Corpus to the Twentieth Judicial Circuit. Because appellant’s petition for habeas corpus relief is unauthorized as a means to relitigate issues which could have been or were raised on appeal or in a Rule 3.850 postconviction motion, the trial court should have dismissed the instant petition as unauthorized.

Appellant was convicted of possession of heroin and sentenced by the circuit court in the Twentieth Judicial Circuit to a mandatory minimum of twenty-five years in prison. In 2007, he appealed the judgment to the Second District Court of Appeal, and the court affirmed the judgment.

In 2012, appellant filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 8.850. In the motion, appellant alleged that the Twentieth Circuit Court lacked jurisdiction over his case. The motion was dismissed as untimely because it was filed beyond the two-year time limit under Rule 3.850. Appellant appealed the dismissal, which was affirmed by the Second District.

Appellant filed a Petition for a Writ of Habeas Corpus in the Twentieth Judicial Circuit Court alleging that the court lacked jurisdiction to convict and sentence him. The circuit court dismissed the petition on the grounds that it lacked jurisdiction to issue the writ because appellant was not detained within the jurisdiction of the court. At the time, appellant was incarcerated at South Bay Correctional Facility, which is within the jurisdiction of the Fifteenth Judicial Circuit. The Twentieth Judicial Circuit Court also determined that appellant was attempting to collaterally attack his prior conviction. The Second District affirmed the dismissal.

Appellant subsequently filed a Petition for a Writ of Habeas Corpus in the Fifteenth Judicial Circuit. In the petition, appellant alleged that the Twentieth Judicial Circuit lacked jurisdiction and imprisoned him for a crime for which he was not charged. He claimed that the court lacked jurisdiction to convict and sentence him because his name was listed on the caption of the information but not within the body of the information. The Fifteenth Judicial Circuit transferred the petition to the Twentieth Judicial Circuit. Appellant filed a Motion to Rescind the Order Transferring the Petition for Writ of Habeas Corpus.

The trial court treated the Motion to Rescind the Order as a Motion for Reconsideration and denied it. It ruled that appellant’s third challenge to his conviction must be raised in a petition for post-conviction relief and filed with the trial court that imposed the judgment and sentence. Appellant timely appealed.

“Habeas corpus proceedings are intended to test the legality of the petitioner’s detention and to secure his or her release if it is determined that the detention is illegal.” Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003) (citations omitted); see also North v. State, 217 So.2d 608, 609 (Fla. 1st DCA 1969) (“[A] habeas corpus action will not lie unless it affirmatively appears that the petitioner is in custody and is entitled to be released from such custody.”). However, “habeas corpus is not to be used for additional appeals of issues that could have been or were raised on appeal or in other postcon-viction motions.” Green v. State, 975 So.2d 1090, 1115 (Fla.2008) (citations omitted); accord Kuehl v. Bradshaw, 954 So.2d 653, 655 (Fla. 4th DCA 2007).

“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.” Baker v. State, 878 So.2d 1236, 1245 (Fla.2004). If appellant is entitled to any relief under rule 3.850 of the Florida Rules of Criminal Procedure, the motion for relief must be filed in the court of the county where appellant was sentenced. Leichtman v. Singletary, 674 So.2d 889, 891-92 (Fla. 4th DCA 1996).

Appellant’s claim that the circuit court in the Twentieth Judicial Circuit lacked jurisdiction to enter the judgment of conviction and sentence is cognizable under Rule 3.850(a).

Because the remedy of habeas corpus is not available to appellant to obtain the kind of collateral postconviction relief he has sought and continues to pursue, the trial court was not required to transfer appellant’s petition to the Twentieth Circuit for consideration in collateral postcon-viction relief proceedings. Instead, the trial court should have dismissed the petition as unauthorized. See Baker, 878 So.2d at 1245-46.

Accordingly, we remand this case to the trial court with instructions to dismiss the petition as unauthorized.

Remanded with instructions.

WARNER, TAYLOR and KLINGENSMITH, JJ., concur.


author: GROSS, J.

text:
    Dena J. ULISANO, Appellant, v. Frederick ULISANO, III a/k/a Rick Ulisano and Moredirect, Inc., Appellees.
    No. 4D14-2786.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Rehearing Denied Jan. 23, 2015.
    Bryce Gilbert of Gilbert & Caddy, P.A., Hollywood, for appellant.

      Allison L. Friedman of Allison L. Friedman, P.A., Aventura, for appellee.
   GROSS, J.

We write to address appellant’s claim that the head of family exemption from a continuing writ of garnishment is not available to debtors residing out of state. After a 1993 amendment to the applicable statute, the statutory exemption applies to Florida residents and non-residents alike.

Dena Ulisano (“Creditor”) obtained a final judgment against Frederick Ulisano III (“Debtor”). To collect on the judgment, Creditor secured the issuance of a continuing writ of garnishment pursuant to section 77.0305, Florida Statutes (2013). The writ ordered Debtor’s employer, Mor-edirect, Inc., to withhold no more than 25% of the Debtor’s “disposable earnings.”

Debtor timely filed a claim of exemption and request for hearing pursuant to section 77.041(1), Florida Statutes (2013). Debtor claimed an exemption as a head of household, since he provided more than one half support for three dependents: a seven year old child, an eighteen year old child, and an unemployed spouse. He further stated that his net earnings exceeded $750 per week, but he had not agreed in writing to have his wages garnished.

At the hearing on the exemption, Creditor argued that Florida’s head of household exemption did not apply because Debtor was no longer a Florida resident. Debtor testified that he had lived in South Carolina for seven years and that he supported two children and his wife, a stay at home mother. He said that he was the family’s sole source of income.

The judge dissolved the continuing writ of garnishment, finding that Debtor qualified for the head of household exemption.

On appeal, Creditor argues that the claim of exemption should not have been granted because the head of household garnishment exemption does not apply to non-residents. We reject this contention because Creditor relies on an outdated version of the statute.

Section 222.11, Florida Statutes (2013), provides a garnishment exemption for the head of a family. This section exempts the head of family’s disposable earnings of $750 a week or less from garnishment and likewise exempts disposable earnings greater than $750 per week, unless the debtor agrees to waive the protection from garnishment in writing. § 222.11(2)(a)-(b), Fla. Stat. (2013). Since the exemption’s purpose “is to prevent the families of debtors from becoming public charges,” it should be liberally construed in favor of the debtor. Killian v. Lawson, 362 So.2d 1007, 1007 (Fla. 4th DCA 1978). A debtor claiming the head of family exemption has the burden of proving entitlement to this statutory exemption. See Brock v. Westport Recovery Co., 832 So.2d 209, 211 (Fla. 4th DCA 2002). The court looks at the totality of the circumstances to determine whether the exemption is applicable. Id.

In this case, Debtor claimed a “head of family” exemption as a “natural person who is providing more than one-half of the support for a child or other dependent.” § 222.11(l)(c), Fla. Stat. (2013). Debtor does not dispute that he has lived in South Carolina for the past seven years; he correctly points out that the current version of section 222.11 applies the exemption to non-residents of Florida.

Prior to 1993, section 222.11 included the following language:

No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.

§ 222.11, Fla. Stat. (1991) (emphasis added). In 1993, the statute was amended and the requirement that the head of family “resid[e] in this state” was removed. See Ch. 93-256, § 2, Laws of Fla. The current version of section 222.11 refers to the “head of a family” without geographical limitation. In construing section 222.11, “our first obligation is to give the words used by the legislature their plain meaning.” Mazzella v. Boinis, 617 So.2d 1156, 1157 (Fla. 4th DCA 1993). By removing the phrase “residing in this state,” the plain language of the statute applies the exemption to both non-resident and resident heads of family.

The cases relied upon by Creditor predate the 1993 amendment to the statute. See Reichenbach v. Chem. Bank of New Jersey, 623 So.2d 577, 579 (Fla. 3d DCA 1993); In re Szuets, 22 B.R. 805, 806 (M.D.Fla.1982).

We have considered the remaining issue and find no abuse of discretion in the trial court’s refusal to enter a default against the Garnishee, Moredirect, Inc.

Affirmed.

DAMOORGIAN, C.J., and MAY, J., concur.


text:
    PHILADELPHIA INDEMNITY INSURANCE COMPANY, Appellant, v. Donald CARLTON, Appellee.
    No. 4D14-3040.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      John H. Richards and William E. Peters, Jr. of Boyd Richards Parker & Co-lonnelli, P.L., Fort Lauderdale, for petitioner.
    Dean T. Xenick and J. Chris Bristow of Critton, Luttier & Coleman LLP, West Palm Beach, for respondent.
   PER CURIAM.

Philadelphia Indemnity Insurance Company (“Philadelphia”) seeks certiorari review of a non-final order which denied its motion for a protective order and required an individual who resides and works in Pennsylvania to be deposed in Broward County. We grant the petition.

In 2008, Donald Carlton applied for insurance on a collectible vehicle with Grundy Worldwide Collector Vehicle Program (“Grundy Worldwide”), a division of Philadelphia Insurance Companies. Philadelphia issued the policy. The vehicle allegedly was stolen in 2018, while a policy between Carlton and Philadelphia continued to be in effect. Carlton filed a claim for the loss, but Philadelphia rescinded the policy ab initio and filed a petition for a declaratory judgment in the circuit court in Broward County that it had no duty to provide coverage. Within the petition, it described Grundy Worldwide as its subsidiary.

In the course of discovery, Carlton noticed the deposition of an individual, Doug Hostvedt, to be taken in Broward County, Florida. Philadelphia moved for a protective order based on Florida Rule of Civil Procedure 1.410(e)(2), which provides, “A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.” It explained that Hostvedt was not Philadelphia’s employee, but was Vice President of “Grundy Insurance,” and that he resides and is employed in Pennsylvania.

Carlton responded that in 2009, Host-vedt attended a show in Boca Raton, Florida, in which Carlton’s vehicle was displayed. At the show, Hostvedt identified himself as a vice president of Grundy Worldwide, gave Carlton a business card to that effect (a copy of which Carlton attached), solicited Carlton to continue his insurance coverage with Grundy Worldwide, and discussed with Carlton and his son how they might obtain an increase in the coverage limit. They followed his instructions, and Grundy Worldwide increased the coverage.

Carlton explained he sought to depose Philadélphia’s corporate officer in the forum in which Philadelphia chose to litigate, citing Ormond Beach First National Bank v. J.M. Montgomery Roofing Co., 189 So.2d 239, 243 (Fla. 1st DCA 1966). In that case, the court held that, pursuant to the general rule that plaintiffs are required to give their depositions in the forum where the action is pending, a corporate plaintiffs officers or managing agents generally may be deposed in the county where the corporation instituted its action, though they reside and transact business in another. Id. For purposes of the instant action, he argued, Philadelphia and Grundy Worldwide were the same.

At the hearing on the motion, Philadelphia represented that Hostvedt was not its employee; instead, he was the employee of a closely related but wholly separate corporation, James A. Grundy Agency, which does not deal with specialty automobiles'. The trial court denied Philadelphia’s motion for protective order, and the instant petition followed.

Wé grant the petition. Neither Hostvedt, James A. Grundy Agency, nor Grundy Worldwide is a party to the underlying lawsuit, which was filed against Carlton by Philadelphia. “The party seeking to take the deposition bears the burden of establishing the capacity of the employée sought to be examined.” Physicians Healthsource, Inc. v. Ando, Inc., No. 12-60798-CIV, 2012 WL 6205044, at *1 (S.D.Fla. Dec. 12, 2012) (citing Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ. 1514, 2008 WL 2224288, at *8 (S.D.N.Y. May 29, 2008)). Here, Carlton failed to demonstrate that Hostvedt was an officer, director, or managing agent of the petitioning corporation — Philadelphia—so as to fall within Ormond Beach First National Bank. Accordingly, Rule 1.410(e)(2) applies and Hostvedt cannot be required to attend a deposition in Broward County, Florida, but is entitled to be subpoenaed for deposition where he resides, is employed, or transacts business. The trial court departed from the essential requirements of law when it denied Philadelphia’s motion for protective order. We therefore quash the trial court’s order.

Petition Granted.

WARNER, TAYLOR and KLINGENSMITH, JJ„ concur.

      . "JAMES A. GRUNDY AGENCY, INC.” appears as the name of the submitting brokerage on Carlton’s application for his policy from Grundy Worldwide.


text:
    Gwendolyn HANKERSON, Petitioner, v. Nicole WILEY, Respondent.
    No. 4D14-4207.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, and Thomas A. Berger of Boyd & Jenerette, P.A., Coconut Creek, for petitioner.
    Joseph Abdallah of Kanner & Pintaluga, P.A., Delray Beach, for respondent.
   GROSS, J.

Gwendolyn Hankerson, the defendant in an auto negligence case below, seeks certiorari review of a trial court order which permits the plaintiff to view a post-accident surveillance video before a deposition. Because the benefit of the surveillance video may be irreparably lost if the plaintiff is permitted to view the ■video before Hankerson has an opportunity to question her, irreparable hárm for certiorari jurisdiction has been shown, so we grant the writ and quash the order of the circuit court.

The trial court’s order departs from the essential requirements of law. Under Dodson v. Persell, 390 So.2d 704 (Fla. 1980), fairness requires that a defendant be permitted to depose the plaintiff before turning over a surveillance video. The relevant portion of Dodson provides:

Fifth, we recognize that there is some merit in respondent’s contention that surveillance can prevent fraudulent and overstated claims. In this regard, fairness requires that we allow the use of surveillance materials to establish any inconsistency in a claim by allowing the surveilling party to depose the party surveilled after the movies have been taken or evidence acquired but before their contents are presented for the adversary’s pretrial examination. We note that under present procedural time constraints, the surveilling party in a personal injury action ordinarily has the opportunity to take discovery in this manner without any court order. In our view, the trial couH’s discretion to allow the discovery deposition before disclosure is an appropriate middle road to ensure that all relevant evidence reaches the trier of fact in a fair and accurate fashion. See Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976).

Id. at 708 (emphasis added).

We agree with the third district’s application of Dodson, which has the effect of establishing a bright line rule regarding work product, post-accident surveillance videos in personal injury cases. Based upon Dodson, the third district has granted second-tier certiorari review of a county court order which required production of a surveillance video before a deposition. State Farm Fire & Cas. Co. v. H Rehab, Inc., 56 So.3d 55, 56 (Fla. 3d DCA 2011) (granting second-tier certiorari of a circuit court order affirming trial court’s order requiring production of surveillance before deposition); State Farm Mut. Auto. Ins. Co. v. H Rehab, Inc., 77 So.3d 724, 725 (Fla. 3d DCA 2011) (granting second-tier certiorari for the second time between these parties and remanding “with instructions that State Farm is not required to produce the surveillance video/DVD prior to taking the deposition”). The essence of the holding in the H Rehab cases is that a trial court abuses its discretion where it permits a plaintiff to view a post-accident surveillance video before allowing a defendant to depose the plaintiff. A bright line rule is preferable in this area because it will impose uniformity and avoid disparate rulings based primarily on the identity of the trial judge.

WARNER and TAYLOR, JJ., concur.


text:
    C.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-712.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2015.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

C.B. appeals an order withholding adjudication of delinquency and placing him on probation for the offense of petit theft. He argues that the trial court erred in denying his motion for judgment of dismissal based upon insufficient evidence. We agree and reverse.

This was a circumstantial evidence case involving the theft of an iPod. The only evidence linking C.B. to the offense was one witness’s testimony that while she was in the classroom where the iPod went missing, she observed, “out of the corner of [her] eye,” C.B. pass an object to the person ultimately found to possess the stolen iPod. However, the witness admitted that she could not identify the object. Even viewed in the light most favorable to the State, this evidence is insufficient to sustain a conviction. The trial court should have granted the dismissal motion. See generally J.B. v. State, — So.3d -, 2014 WL 837006, 39 Fla. L. Weekly D487, D488 (Fla. 4th DCA Mar. 5, 2014) (holding that fact that juvenile was seen outside store with bracelet then on sale within store did not constitute circumstantial evidence of theft); Haugabrook v. State, 827 So.2d 1065, 1069 (Fla. 2d DCA 2002) (reversing petit theft conviction, after finding, inter alia, there was no evidence tying missing clothes to defendant).

We reverse the trial court’s order withholding adjudication of guilt and placing C.B. on probation. See A.P.R. v. State, 894 So.2d 282, 286 (Fla. 5th DCA 2005).

REVERSED.

ORFINGER, WALLIS and LAMBERT, JJ., concur.


text:
    Tanner J. COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5854.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2015.
    Tanner J. Collins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, WETHERELL, and SWANSON, JJ„ concur.


text:
    Stoney GLENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5855.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2015.
    Stoney Glenn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, WETHERELL, and SWANSON, JJ„ concur.


text:
    Andrea G. CASTRO and Jorge E. Castro, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 5D14-2738.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2015.
    Andrea G. Castro and Jorge E. Castro, St. Cloud, pro se.
    Morgan L. Weinstein, of the Van Ness Law Firm, PLC, Deerfield Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

ORFINGER, BERGER, and LAMBERT, J.J., concur.


text:
    JOMAR PROPERTIES, L.L.C., and Accredited Surety and Casualty Company, Inc., Appellants, v. BAYVIEW CONSTRUCTION CORPORATION, Appellee.
    No. 4D13-2159.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2015.
    Certification to S.Ct. Denied Feb. 3, 2015.

      Raymond M. Masciarella, II of Raymond M. Masciarella, P.A., North Palm Beach, for appellants.
    Jon D. Derrevere and Shirley Jean McEachern of Derrevere, Hawkes, Black & Cozad, West Palm Beach, for appellee.
   WARNER, J.

Appellants challenge a final judgment based upon an arbitration award. They claim that the arbitrator showed evident partiality based upon comments by the arbitrator at the hearing. Further, they maintain that because the appellee sought confirmation of the award prior to the determination of pre-award interest, the arbitrator lost jurisdiction to make a further award of interest. Both parties challenge the trial court’s award of attorney’s fees, the appellant claiming that the award was not supported by evidence of the reasonableness of the fees and the appellee claiming that the court improperly reduced the award. Finally, the appellee claims that the calculation of the award of prejudgment interest was in error. We affirm on all issues.

Appellant, Jomar, hired appellee, Bay-view, to manage the construction of a gym on Jomar’s property. After a dispute arose, Bayview sued Jomar for breach of contract and to foreclose a construction lien of over one million dollars. Jomar filed various counterclaims, including for breach of contract and fraudulent lien. By-contract, the parties had agreed to arbitrate disputes. After a lengthy evidentia-ry hearing, the arbitrator made an award of damages to Bayview, reserving jurisdiction to award interest, as well as attorney’s fees, to Bayview.

Before the arbitrator heard the claims regarding interest and attorney’s fees, Jo-mar filed a motion in the circuit court to vacate the award, based upon its claim that the arbitrator showed evident partiality in comments made at the evidentiary hearing. Although Bayview maintained that the motion was premature, it still moved to confirm the award as a precaution.

While these motions were pending in the circuit court, the arbitrator held a hearing on Bayview’s motion for pre-award interest. Two days later, the circuit court held a hearing on Jomar’s motion to vacate. The circuit court ruled first, denying Jo-mar’s motion to vacate and granting Bay-view’s motion to confirm. After the court had confirmed the arbitration award, the arbitrator entered a further order awarding interest to Bayview. Jomar challenged this order in the circuit court, claiming that the arbitrator had lost jurisdiction to add interest after the circuit court had confirmed the original award. The circuit court disagreed and included the pre-award interest in the final judgment.

As to attorney’s fees, the arbitrator ruled that Bayview was entitled to fees as the prevailing party, but the parties agreed to dispense with arbitration as to the amount of fees. The trial court conducted a hearing to determine the amount of fees to be awarded to Bayview. Prior to the hearing, the parties entered into a stipulation providing, in relevant part: “Although Jomar disputes the reasonableness of Bayview’s attorney’s fees, Jomar waives the requirement that Bayview be required to call an expert witness to testify with regards to the reasonableness of Bay-view’s attorney’s fees.” The trial court held an extensive hearing on the issue, and the attorneys for Bayview testified as to their hourly rates as well as the number of hours spent litigating this contentious case. One testified that the firm’s hourly rates were generally within the standard rates charged for construction litigation in South Florida.

Another dispute involved the award of interest between the time of the arbitration award and the entry of the final judgment. Bayview submitted several methods of calculating the interest, none of which it now advocates on appeal. In its final judgment, the court included post-award interest but not of the amount Bay-view now seeks on appeal. From this final judgment, Jomar appeals the initial arbitration award, Bayview appeals the post-award interest, and both parties cross-appeal the attorney’s fee award.

Jomar’s claim that the arbitrator’s comments at the hearing on arbitration showed evident partiality under section 682.13(1)(b), Florida Statutes (2008), is without merit. Under RDC Golf of Florida I, Inc. v. Apostólicas, 925 So.2d 1082 (Fla. 5th DCA 2006), the standard for determining “evident partiality” is whether there was a “reasonable impression of partiality.” Id. at 1095. We have reviewed the arbitrator’s comments and conclude that they do not show any partiality. During the proceedings the arbitrator was trying to understand the parties’ positions and asked several questions in that regard. The arbitrator’s remarks were an allowable comment on the evidence and/or sought clarification of a party’s position. See Boyhan v. Maguire, 693 So.2d 659, 662-63 (Fla. 4th DCA 1997). We do not understand the comments of the arbitrator as giving “tips” to one side.

In its second claim, Jomar argues the arbitrator exceeded his powers by awarding interest to Bayview after the trial court had confirmed the arbitrator’s previous award under section 682.12, Florida Statutes (2010). Section 682.13(l)(c), Florida Statutes (2010), provides an arbitration award shall be vacated when “[t]he arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.” Because the arbitrator lost jurisdiction, according to Jomar, the award could not be amended to include pre-award interest. We reject Jomar’s position.

In Air Conditioning Equipment, Inc. v. Rogers, 551 So.2d 554 (Fla. 4th DCA 1989), a trial court confirmed an arbitration award even though an arbitrator’s award contemplated further determination on the issues presented in arbitration. On appeal, we held that the trial court’s confirmation of that award was invalid. “An arbitration ‘award’, although not defined in the code, should resolve and determine all matters that have been submitted. A confirmation of an ‘award’ that is not final is generally considered to be invalid.” Id. at 556. See also City of Tallahassee v. Big Bend PBA, 703 So.2d 1066, 1067 n. 2 (Fla. 1st DCA 1997). Here,-as in Rogers, the arbitrator’s award was not complete, because the arbitrator had reserved on the question of interest. The trial court’s confirmation of that award was invalid, and the court clearly recognized that the arbitrator had not completely resolved the issues presented to him. Thus, the court’s premature order confirming the award did not deprive the arbitrator of jurisdiction to determine the interest issue.

Jomar next attacks the award of attorney’s fees, on the ground that Bay-view had not established the market rate relative to the hourly rate charged by associates and paralegals in one of the law firms representing Bayview. Jomar cites to Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988), for the proposition that in proving attorney’s fees the proponent must offer evidence of the prevailing market rate in the community for the legal services. According to Jomar, Norman stands for the proposition that a lawyer’s own testimony as to the reasonableness of his or her own fees is insufficient. We have explained, however, “Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence.” Smith v. Sch. Bd. of Palm Beach Cnty., 981 So.2d 6, 9 (Fla. 4th DCA 2007) (quoting Norman, 836 F.2d at 1299) (emphasis added). “Perhaps the strongest and best evidence of an attorney’s market rate is the hourly rate he/she charges clients.” Id.

In any event, Jomar stipulated that Bay-view was not required to provide expert evidence as to the reasonableness of its attorney’s fees. We think anyone would conclude that meant that Bayview did not have to provide independent evidence of the prevailing market rates for the lawyers, associates, and paralegals working on the case. Moreover, when Bayview sought to introduce testimony of its lawyers as to the rates they charged other clients, Jo-mar objected that such evidence was irrelevant, contrary to its position in this appeal. Nevertheless, the main partner in charge of Bayview’s representation was allowed to testify as to the firm’s rates charged to other clients. Finally, he also testified that his firm’s rates were typical of the rates charged in South Florida for construction litigation. Jomar did not provide any counter evidence. The evidence presented was adequate to conclude the reasonableness of the rates charged by the associates and paralegals. The trial court did not err in using the hourly rates charged by the law firms in calculating a reasonable fee.

On cross-appeal, Bayview challenges the trial court’s reduction of the lodestar amount in determining a reasonable attorney’s fee. An award of attorney’s fees should not be reversed absent a clear abuse of discretion. DiStefano Const., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992).

While Bayview prevailed on the liability issues on all of its claims, it recovered substantially less damages than it had sought. The trial court took these results into consideration in its thirteen-page order determining the amount of the reasonable fee.

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), the Florida Supreme Court held that, once the trial court determines the “lodestar” amount for attorney’s fees, the court “may add or subtract from the fee based upon ... the ‘results obtained.’ ” 472 So.2d at 1151. The court explained:

The “results obtained” may provide an independent basis for reducing the fee when the party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims. When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success.

Id. at 1151. Bayview argues that “limited success” in Rowe means obtaining an award or relief on some claims but losing other claims, not obtaining a smaller monetary award than requested at trial (or arbitration). Because Bayview prevailed on all claims, but did not recover all of the damages it sought, Bayview argues it was improper for the trial court to reduce its fees under this factor.

We conclude, however, that the “results obtained” pursuant to Rowe allows the court to consider an analysis of the limited amount of the recovery. See, e.g., Shipwatch Dev. Corp. v. Salmon, 646 So.2d 888, 889 (Fla. 1st DCA 1994) (“As the prevailing party, [the contractor] is entitled to attorney’s fees under section 713.29, Florida Statutes (1991). The court erred, however, by not adjusting the lodestar fee based on the extent of success achieved by counsel for [the contractor].”); Fashion Tile & Marble, Inc. v. Alpha One Constr. & Assocs., Inc., 532 So.2d. 1306, 1309 (Fla. 2d DCA 1988) (although “[a] prevailing party' should not be punished merely for failing to recover the entire amount which was claimed in good faith to be due[,] ... the trial court may consider the result obtained by the verdict in terms of the potential damages available,” and may “consider the amount recovered with the amount claimed”). See also James v. Wash Depot Holdings, Inc., 489 F.Supp.2d 1341, 1353-54 (S.D.Fla.2007) (discussing cases where lodestar amount was reduced due to limited results obtained). .Here, the trial court did not take a rigid approach in reducing the lodestar but undertook the type of flexible, equitable analysis envisioned by the supreme court in Rowe. The reduction in the lodestar based on the limited recovery by Bayview was not an abuse of discretion.

Finally, we do not consider Bay-view's claim that the trial court erroneously calculated the post-award interest, as it failed to properly preserve this claim.

For the foregoing reasons, we affirm the trial court’s judgment.

TAYLOR and KLINGENSMITH, JJ„ concur.

      . We would note that the fees charged by the paralegals and the lawyers in the firm ranged from $90 for the paralegals to $300 for the partner, rates which the trial court (and we) characterize as low.


text:
    Teddy (Theodore) LASERINKO, Appellant, v. Ann Marie GERHARDT, etc., et al., Appellees.
    No. 5D14-2181.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    William R. Ponall, of Snure & Ponall, P.A., Winter Park, for Appellant.
    No Appearance for Appellees.
   PER CURIAM.

Teddy (Theodore) Laserinko appeals the final judgment of injunction for protection against stalking entered in favor of Ann Marie Gerhardt and her minor child. Because we find that the evidence was legally insufficient to support issuing the injunction, we reverse.

Laserinko and Gerhardt were the only witnesses who testified at trial. They first met more than 20 years ago, lost contact, and then later reacquainted through social media. Gerhardt was divorced with a young, minor son. Gerhardt, her son, and Laserinko began spending time together, visiting amusement parks and engaging in other activities. In early January 2014, Laserinko e-mailed Gerhardt, expressing a desire that their relationship become more than just a friendship. Gerhardt e-mailed back, indicating that he was a great friend, but that she did not consider Laserinko in a romantic way. Laserinko then sent two e-mails, one apologizing for making things awkward and the second to explain why he thought, based upon their interactions, that the relationship had been developing into more than just a friendship. Ger-hardt responded the following day by email, stating that this was a “lot to digest,” she needed “some space,” to stop “putting this all on her,” and that she would be back in touch with him.

On February 1, 2014, Gerhardt attended a concert at Sea World with a friend and his daughters. Laserinko separately attended the same concert with his mother and others. Laserinko saw Gerhardt but did not approach her. She did not see him. There was no competent evidence at trial that Laserinko knew Gerhardt would be at the concert. On February 3, 2014, and then on February 10, 2014, Laserinko sent two innocuous e-mails, wishing Ger-hardt and her son a “good morning.” Two days before Valentine’s Day, Laserinko sent Gerhardt and her son Valentine’s Day cards and also sent her a box that contained a small stuffed teddy bear, chocolates, and a compact disc (“CD”). Ger-hardt did not respond. Thereafter, on March 11, 2014, Laserinko e-mailed Ger-hardt, asking that she contact him, reminding her that in her January e-mail to him, she had indicated that she would call him. Five days later, Laserinko again emailed, apologizing for his efforts to make their relationship more than just friends and expressing hope that they could go back to the way they were.

On April 20, 2014, Laserinko e-mailed Gerhardt wishing her and her son a happy Easter. Two days later, on April 22, 2014, Laserinko e-mailed Gerhardt a two-and-one-half page letter, which, due to its tone, prompted Gerhardt to e-mail Laserinko the next day, directing him to stop having any further contact with her and advising that if he failed to do so, she would contact law enforcement. Gerhardt’s petition for injunction for protection against stalking followed, and the nonjury trial was held on May 14, 2014.

A person commits the act of stalking by “willfully, maliciously, and repeatedly follow[ing] harassing], or cyber-stalkfing] another person.... ” See § 784.048(2), Fla. Stat. (2013). “ ‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Id. § 784.048(1)(a). ‘“Course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” Id. § 784.048(1)(b); see also Lukacs v. Luton, 982 So.2d 1217, 1219 (Fla. 1st DCA 2008) (“Thus, by its statutory definition, stalking requires proof of repeated acts.”).

“Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking.” Touhey v. Seda, 183 So.3d 1203, 1204 (Fla. 2d DCA 2014) (citing Goudy v. Duquette, 112 So.3d 716, 717 (Fla. 2d DCA 2013)). “When evaluating whether competent, substantial evidence supports a trial court’s ruling, ‘[l]egal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate .tribunal.’ ” Brilhart v. Brilhart ex rel. S.L.B., 116 So.3d 617, 619 (Fla. 2d DCA 2013) (alterations in original) (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981)). In determining whether each incident of harassment causing “substantial emotional distress” has been established to support a finding of stalking, “courts use a reasonable person standard, not a subjective standard.” Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007) (citing Ravitch v. Whelan, 851 So.2d 271, 273 (Fla. 5th DCA 2003)).

We have no trouble concluding that the April 22, 2014 e-mail from Laserinko to Gerhardt would cause a reasonable person to suffer the “substantial, emotional distress” required by section 784.048. However, based upon our careful review of the record, we conclude that none of the other contacts from Laserinko during this approximate four-month period were such that a reasonable person would have suffered “substantial emotional distress.” Accordingly, due to the lack of competent, substantial evidence to establish the requisite second incident to support the issuance of a final judgment of injunction for protection against stalking, we reverse and remand with instructions to dismiss Ger-hardt’s petition.

REVERSED and REMANDED.

PALMER, EVANDER and LAMBERT, JJ., concur.

      . Gerhardt also testified to other text and phone messages received from Laserinko that she was unable to retrieve for trial, which she described as Laserinko "basically trying to get in touch with me.”


text:
    Quoc VAN, Petitioner, v. UNIFUND CCR, LLC., Respondent.
    No. 5D14-4232.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Quoc Van, Sanford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Petitioner challenges the denial of his verified motion to disqualify the trial judge. We conclude that the motion was legally sufficient and, accordingly, grant the writ of prohibition. See Barnett v. Barnett, 727 So.2d 311, 312 (Fla. 2d DCA 1999) (“While it is well-settled that a judge may form mental impressions and opinions during the course of hearing evidence, he or she may not prejudge the case.”).

WRIT GRANTED.

SAWAYA, EVANDER and COHEN, JJ., concur.

      . In determining the legal sufficiency of the motion, we must presume the facts alleged to be true. Fla. R. Jud. Admin. 2.330(f).


text:
    Sylvester SIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4965.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    Bruce A. Miller, Public Defender, and Marshawn Griffin, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence dated August 11, 2014, in Escambia County Circuit Court case number 2014-CF-000543-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Michael Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4394.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant broke into a trailer brandishing a BB gun and demanded money from the three individuals inside: Robert Dodd, Rebecca Dodd, and Courtney Barnes. The victims did not have any money and Appellant left without further incident. Appellant was charged with “armed burglary with assault or battery” (count I), three counts of attempted armed robbery (counts II-IV), and possession of a firearm by a convicted felon (count V). The jury found Appellant guilty on count I, with specific findings that Appellant was armed with explosives or a dangerous weapon (but not a firearm) and that he committed an assault during the burglary; guilty on count II (Mr. Dodd); and guilty of the lesser included offense of aggravated assault on counts III and IV (Ms. Dodd and Ms. Barnes). Appellant was sentenced to concurrent prison terms of 20 years on count I, 15 years on count II, and 5 years on counts III and IV.

Appellant argues in this direct appeal that his aggravated assault convictions (counts III and IV) violate the prohibition against double jeopardy because those offenses are subsumed within his conviction for armed burglary with an assault (count I). We agree. See Green v. State, 120 So.3d 1276, 1278 (Fla. 1st DCA 2013) (“[B]ecause all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with an.assault while armed with a firearm,- convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy.”); White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000) (same). Accordingly, we reverse and remand for the trial court to vacate Appellant’s convictions for counts III and IV. See Farrier v. State, 145 So.3d 199, 200 (Fla. 5th DCA 2014) (in case involving two victims, vacating both convictions for aggravated assault with a firearm on double jeopardy grounds because those offenses were subsumed within the defendant’s conviction of burglary with an assault or battery with a firearm); but see Estremera v. State, 107 So.3d 511, 512 (Fla. 5th DCA 2013) (in case involving three victims, vacating only one of the aggravated assault convictions as being subsumed within the defendant’s conviction of burglary with an assault while armed). We affirm Appellant’s convictions and sentences in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

WOLF, THOMAS, and WETHERELL, JJ., concur.

      . This charge is an amalgamation of sections 810.02(2)(a) and (2)(b), Florida Statutes (2011), which provide that burglary is a first-degree felony if, in the course of committing the burglary, the defendant "[m]akes an assault or battery upon any person” or "[i]s or becomes armed ... with explosives or a dangerous weapon.”

      . Count V was severed for purposes of trial and was subsequently dismissed based upon the jury’s finding that Appellant did not possess a firearm.

      . We find no merit in the other issue raised by Appellant.


text:
    Maurice Avery STILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5310.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.

      Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Maurice Avery Stills, appeals his judgment and sentence for armed robbery and raises four issues on appeal, only one of which warrants discussion. For the reasons that follow, we agree with Appellant that the trial court erred by denying his amended motion for new trial based on a newly discovered evidence claim and, therefore, reverse and remand with instructions. We affirm as to the remaining issues without further comment.

At Appellant’s trial for armed robbery, the State’s theory of the case was that Appellant, Anton Watson, Jamiel Rivers, and Nelson Williamson made plans to rob the gas station where Mr. Watson worked; that while Mr. Watson was working, Appellant and Mr. Williamson robbed the gas station at gunpoint; and that Mr. Rivers drove the getaway car. Mr. Watson and Mr. Rivers both testified that Appellant and Mr. Williamson were the gunmen and Mr. Rivers drove Appellant’s car, but their testimonies conflicted in several respects and minimized their own involvement. At the time of trial, Mr. Watson and Mr. Rivers had pled guilty to the armed robbery, as well as to tampering with evidence pursuant to their unsuccessful attempt at destroying the gas station’s surveillance video, and were awaiting sentencing. When Appellant’s vehicle was apprehended shortly after the crime, Appellant was the driver and Mr. Williamson was the passenger. The State presented evidence that the two guns found in Appellant’s glove compartment were the firearms involved in the robbery, but did not contain his DNA. The State also produced evidence that Appellant was the major contributor to the DNA mixture found on one of the gloves that was used during the robbery, but Appellant testified that those were his work gloves. Appellant further testified that Mr. Rivers and Mr. Williamson robbed the ¿as station and he drove his vehicle to and from the scene of the robbery without advance knowledge of the crime. The trial court instructed the jury on the crime of armed robbery, as well as on the law of principals and the lesser-included offense of theft. The jury returned a verdict finding Appellant guilty of robbery, and made specific findings that Appellant carried, but did not actually possess a firearm during the commission of the offense.

Prior to sentencing, Appellant filed an amended motion for new trial based on a newly discovered evidence claim, wherein he argued that following his trial, he received a letter from Mr. Williamson stating that Appellant did not participate in the robbery and had no advance knowledge of it. Appellant represented in his motion that the evidence could not have been obtained at the time of his trial because Mr. Williamson’s case was still pending and thus he had the right to remain silent. Appellant argued that the evidence likely would have changed the jury’s verdict because it pertained to the elements of armed robbery as a principal.

At the evidentiary hearing on the newly discovered evidence claim, Mr. Williamson testified in part that prior to Appellant’s trial, he wrote three letters to Appellant, which he gave to fellow inmates for immediate delivery to Appellant. Mr. Williamson does not know whether the letters were actually delivered to Appellant, and he believes the letter in the defense’s possession is his second letter. Mr. Williamson further testified that he, Mr. Watson, and Mr. Rivers planned the robbery; he and Mr. Rivers robbed the gas station; and Appellant drove his car to and from the gas station, but did not participate in the robbery and did not know about it in advance. Appellant testified in part that he received Mr. Williamson’s letter after his trial, and had he received it earlier, he would have provided it to his attorney. The trial court denied the amended motion for new trial, and subsequently adjudicated Appellant guilty of armed robbery and sentenced him to five years’ imprisonment, with credit for time served. This appeal followed.

A trial court’s decision on a motion for new trial based on newly discovered evidence is reviewed for an abuse of discretion. Aguirre-Jarquin v. State, 9 So.3d 593, 603 (Fla.2009). When a trial court rules on a newly discovered evidence claim after an evidentiary hearing, its findings on questions of fact, the credibility of witnesses, and the weight of the evidence are reviewed for competent, substantial evidence, whereas its application of the law to the facts is reviewed de novo. Pittman v. State, 90 So.3d 794, 814 (Fla.2011). To prevail on a newly discovered evidence claim, the’ defendant must establish: (1) “the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence,” and (2) “ ‘the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.’” Johnston v. State, 27 So.3d 11, 18 (Fla. 2010) (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)).

With regard to the first prong, “Florida courts have held that evidence can be treated as newly discovered where it is ‘based on newly available testimony of defendants who were previously unwilling to testify.’ ” Brantley v. State, 912 So.2d 342, 342-43 (Fla. 3d DCA 2005) (rejecting the State’s argument that the co-defendant’s affidavit did not qualify as newly discovered evidence because the co-defendant was known to the defense at the time of trial and reasoning that “[according to the Rule 3.850 motion, defense counsel tried to obtain the cooperation of co-defendant [ ], but co-defendant [ ] refused. Based on the limited record before us, it appears that defense counsel could not have procured co-defendant[’s][ ] testimony on account of the Fifth Amendment privilege against self incrimination”) (quoting Totta v. State, 740 So.2d 57, 58 (Fla. 4th DCA 1999)); see also Lowe v. State, 2 So.3d 21, 39 (Fla.2008) (finding that the witness’s testimony at the evidentiary hearing on a motion to suppress met the first prong of the Jones standard “because her testimony about what happened ... did not change until postconviction proceedings”); Kormondy v. State, 983 So.2d 418, 438-39 (Fla.2007) (affirming the denial of a new trial based on the second prong of the Jones standard and agreeing with the trial court that the first prong was met where the co-defendant did not testify at the appellant’s trial, subsequently testified to the contrary at his own trial, and “only recently made the statement that is at issue here”).

The second prong of the standard is satisfied if the newly discovered evidence “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Johnston, 27 So.3d at 18-19. Specifically,

“in determining whether the [newly discovered] evidence compels a new trial under [Jones v. State, 591 So.2d 911 (Fla.1991) ], the trial court must ‘consider all newly discovered evidence which would be admissible,’ and must ‘evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.’ ” This determination includes “whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.”

Nordelo v. State, 93 So.3d 178, 186 (Fla. 2012) (internal citations omitted).

In the present case, the trial court did not make a factual finding as to whether Mr. Williamson’s letter constituted newly discovered evidence. Instead, the court determined that “[e]ven assuming that it may have been newly discovered evidence, the Court does not find that the proper evidence would have likely changed the result of the jury trial in light of all of the circumstances.... ” We disagree.

Importantly, while the jury’s verdict demonstrates that it rejected Mr. Watson’s and Mr. Rivers’s testimony as to Appellant’s role as a gunman, it also demonstrates its rejection of Appellant’s claim that he had no advance knowledge of the robbery. The contents of Mr. Williamson’s letter and testimony pertain to the merits of the case. Although Mr. Williamson’s testimony is inconsistent with the trial testimony of Mr. Watson and Mr. Rivers, it is consistent with Appellant’s testimony that he did not participate in and had no advance knowledge of the robbery. We conclude that the evidence at issue weakens the case against Appellant so as to give rise to a reasonable doubt about his culpability, and the trial court erred by finding to the contrary. Because, however, the trial court did not make a factual finding as to. whether the evidence was newly discovered, we reverse and remand with instruction that the trial court make a factual finding as to whether the evidence is newly discovered. See Hunter v. State, 87 So.3d 1273, 1275 (Fla. 1st DCA 2012) (“[A] fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”); see also Featured Props., LLC v. BLKY, LLC, 65 So.3d 135, 137 (Fla. 1st DCA 2011) (“ ‘Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance.’ ”). If the trial court determines that the evidence was newly discovered, Appellant will be entitled to a new trial.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.

      . The trial court instructed the jury in part that Appellant "cannot be found to have actually possessed a firearm if you believe that he was a principal to the crime charged, who did not personally possess a firearm.” In light of the jury's verdict, the parties agree that Appellant was convicted as a principal. See Hall v. State, 100 So.3d 288, 289 (Fla. 4th DCA 2012) ("To convict under a principals theory, the State is required to prove that 'the defendant had a conscious intent that the criminal act be done and ... the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime.’ ‘[T]he getaway driver who has prior knowledge of the criminal plan and is waiting to help the robbers escape' is clearly guilty of the robbery under a principals theory. But, '[n]either mere knowledge that an offense is being committed nor presence at the scene of the crime and flight therefrom are sufficient to establish participation with the requisite criminal intent.’ ") (Internal citations omitted).


text:
    MORRIS PUBLISHING GROUP, LLC, d/b/a, The Florida Times-Union Multimedia Holdings Corporation and Gannett River States Publishing Corporation, d/b/a, WTLV/WJXX First Coast News, and Post-Newsweek Stations Florida, Inc., d/b/a, WJXT-TV4, Petitioners, v. STATE of Florida and Michael D. Dunn, Respondents.
    No. 1D13-5721.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.

      George D. Gabel, Jr., Timothy J. Conner, Jennifer A. Mansfield, and Paul R. Regensdorf of Holland & Knight, LLP, Jacksonville; Meagan L. Logan and Edward L. Birk of Marks Gray, P.A., Jacksonville, for Petitioners.
    Pamela Jo Bondi, Attorney General; Samuel B. Steinberg, Jay Kubica, and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee; Cory C. Strolla, West Palm Beach; Angela B. Corey, State Attorney, and Meredith Charbula, Assistant State Attorney, Jacksonville, for Respondents.
   PER CURIAM.

Criminal discovery and Florida public records laws are at issue in this case. Morris Publishing Group, LLC, Multimedia Holdings Corporation, and Gannett River States Publishing Corporation (collectively the “Media”), seek review of the trial court’s order, which concluded that the State Attorney’s Office, Fourth Judicial Circuit (SAO), did not act unlawfully in delaying or withholding recorded phone conversations of a criminal defendant, Michael Dunn, without first securing a deposit from the Media to cover the costs of reviewing the recordings to- redact information that is exempt/confidential under Chapter 119, Florida Statutes. Due to the unusual facts of this case and the novel legal issue presented, we deny the petition but certify a question of great public importance as detailed below.

I.

A.

This overly contentious public records litigation is back for a fourth round of appellate review, this time limited solely to the Media’s access to recorded phone conversations in which Mr. Dunn engaged while incarcerated and awaiting his first criminal trial held in Jacksonville, Florida. The case garnered much attention in the local, state, and national media. In September 2013, the Media made its initial public records request for criminal discovery records, which makes such items subject to inspection and copying. See § 119.011(3)(c)(5), Fla. Stat. (addressing documents in criminal discovery that are part of public records).

Interest in the criminal discovery spiked around October 16, 2013, when the SAO released various records including letters written by Mr. Dunn, a police interrogation video, witness statements, 9-1-1 audio recordings, and crime scene photos. Many of Mr. Dunn’s letters were immediately aired, some of which included potentially inflammatory racial references to fellow inmates where Mr. Dunn was jailed. Heightened interest thereby arose among the Media and the public over the hundreds of recorded phone conversations to which Mr. Dunn was a party while incarcerated and awaiting trial.

Access to all criminal discovery, however, came to a halt soon thereafter. On October 24, 2013, after reading media accounts of the jailhouse letters, the trial judge entered an order on his own initiative without notice to the Media that barred public dissemination of any criminal discovery in the case without his approval. The “sole purpose” of the order was to provide the trial judge an opportunity for “in-camera inspection to ensure that no exempted materials become inadvertently disclosed to the public, and to ensure that Defendant’s constitutional right to a fair trial is not jeopardized.”

After a series of emergency petitions and orders of this Court, over a span of three months, the trial court’s restrictive orders were lifted. We summarized that the effect of our orders “was to require immediate release of all such public records” absent an immediate evidentiary hearing and “written order for possible appellate review.” We deemed it necessary to compel “disclosure of all criminal discovery produced in this case, including but not limited to the defendant’s recorded conversations, provided pursuant to Florida Rule of Criminal Procedure 3.220.” (Emphasis added). We noted, however, that our order did “not modify [the Media’s] requirement to comply with necessary payment and other administrative requirements provided in Chapter 119.” The trial court promptly held a hearing at which Mr. Dunn’s counsel made a generalized, but unsupported objection to disclosure of the public records. Because no showing was made that the release of the criminal discovery posed any meaningful risk to Mr. Dunn in the prosecution of the ongoing criminal proceedings, the trial court denied Mr. Dunn’s request to keep the discovery confidential, thereby compelling the immediate release of all public records at issue, including the recorded conversations, subject to whatever “necessary payment” requirements Chapter 119 imposed.

As to the phone recordings, the SAO required advance payment from the Media for its anticipated efforts to complete its public records review process. It estimated that the cost of reviewing and redacting the recorded jail calls for confidential and exempt information would be over $6,000, and approximately half that amount was required as a deposit to begin the review process. The Media refused to pay the deposit, contending that the SAO’s policy of requiring full payment to review every phone recording including those the SAO had already reviewed for trial purposes, violated Florida’s public records laws. The Media sought an emergency hearing to determine whether the SAO was violating Chapter 119, and obtained an order of this Court to expedite the.matter. Because the first day of trial — set for February 3, 2014 — was just a few days away, we permitted the circuit’s chief judge to consider the appointment of a special master or magistrate to hold a hearing and make recommendations to the trial court. As jury selection began, the chief judge did just that, appointing a magistrate to determine whether the SAO’s response to the Media’s requests for the recorded jail calls was reasonable or amounted to an unlawful refusal of access.

B.

The testimony before the magistrate established that there are two ways the SAO reviews recordings of jail calls. For its trial review process, a non-attorney support specialist listens to jail calls while performing other tasks, essentially keeping an ear out for any potentially relevant or helpful information to the prosecution’s case. The specialist maintains a summary of the calls for purposes of this review. In contrast to this type of review, public records review is handled differently. The SAO maintains a two-person public records unit, comprised of one attorney and one administrative assistant. Upon receipt of a public records request for criminal discovery involving audio recordings, the administrative assistant first listens to the recordings in their entirety, stopping to redact exempt material. The redaction process consists of stopping and rewinding the recording, creating a marker showing where the exempt material is contained, and removing the audio from that portion of the recording. Once that process is completed, the attorney conducts an abbreviated review of the recordings, checking the redactions and listening to the recordings at double their normal speed for items the assistant may have missed.

To estimate the cost of its review, the SAO multiplied the hours of calls by 1.5 for the administrative assistant’s initial, lengthier review, and then by the administrative assistant’s hourly rate of pay, which in this case is $10.94. The SAO then multiplied the hours of calls by 0.5 for the attorney’s double-speed review, and then multiplied that number by the attorney’s hourly rate of pay, which in this case is $35.61. For the 186 hours of calls at issue, the SAO estimated that the public records review would cost $6,357.14, and it required a $3,000 deposit before it would begin its review. If the actual cost of producing the redacted records is lower than the estimate, a refund would be issued; the Media was notified of this refund policy. The SAO would also split payment among multiple requesters. Though the Media could choose calls from a list the SAO prepared, only the time and date of each call was listed.

Following the evidentiary hearing, the magistrate entered a report and recommendation, concluding that the SAO’s failure to produce the calls without the requested financial deposit was not an unlawful refusal of access. The magistrate, however, recommended that the SAO immediately release eight hours of jail calls by 5:00 p.m. on each business day, and that the Media pay a rolling deposit of $273.60 at the end of each business day or $1,374.50 for each 40-hour workweek of labor. With 186 hours of calls to be reviewed, and an estimated 360 hours to review them, the entire process would require nine weeks to be completed.

On March 12, 2014, the trial judge adopted the magistrate’s report and recommendations, except that he ordered only six (rather than eight) hours of calls to be produced each work day. Three days later, a jury verdict was rendered.

II.

A.

With this background in mind, we turn to the central issue in this case: whether the SAO’s actions in withholding the phone recordings and requiring advance payment before starting its review of the requested phone recordings constitutes an unlawful delay or denial of access to these public records. No one disputes that the phone recordings are public records or that they must be made available in as immediate a manner as is practicable. And, as a general matter, the Media does not disagree that advance payment of some amount may be required. Instead, the crux of the legal issue is to what extent, if any, was the SAO as a records custodian legally required to coordinate its review of phone recordings for discovery purposes and for use at trial, with its public records request review under Chapter 119. We find no clear answer.

“In Florida, access to public records is a matter of such importance that it is constitutionally guaranteed.” Bd. of Cnty. Comm’rs of Highlands Cnty. v. Colby, 976 So.2d 31, 35 (Fla. 2d DCA 2008) (citing art. I, § 24(a), Fla. Const.). Chapter 119 obligates a state agency to provide public records to any person requesting them. See § 119.01(1), Fla. Stat. (2013) (“It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.”). As a policy, this chapter acknowledges that public records have become “automated” in the modern era, but that the “[ajutomation of public records must not erode the right of access to those records.” See § 119.01(2)(a). “As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.” Id. Based on these dual policies, the SAO’s burden to provide reasonable access to the public records at issue is tempered by its obligation to ensure that no exempt or confidential information is disclosed.

Custodians of public records are required to make them available for inspection and copying at reasonable times under reasonable conditions. § 119.07(l)(a). Requests must be acknowledged promptly and responded to in good faith. § 119.07(l)(c). A custodian has a duty to redact portions of public records that are exempt, stating the basis “in writing and with particularity the reasons for the conclusion that the record is exempt or confidential.” § 119.07(l)(d)-(f). A custodian may impose a statutorily-regulated fee for the cost of copies. § 119.07(4). If no set fee is prescribed by law, custodians are allowed to impose other statutorily-defined fees. For instance, a “special service charge” is available in certain circumstances:

(d) If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.

§ 119.07(4)(d); see, e.g., Colby, 976 So.2d at 37 (upholding special service charges for work that required more than approximately fifteen minutes to locate, review, and refile requested records).

An unlawful denial of access can occur in many different ways, including delay. See, e.g., Tribune Co. v. Cannella, 458 So.2d 1075, 1079 (Fla.1984) (“The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.”); see also Barfield v. Town of Eatonville, 675 So.2d 223 (Fla. 5th DCA 1996) (“An unjustified delay in complying with a public record request amounts to an unlawful refusal under section 119.12(1), Florida Statutes.”). It may also occur by excessive special services charges. See, e.g., Carden v. Chief of Police, City of Clewiston Police Dep’t, 696 So.2d 772, 773 (Fla. 2d DCA 1996) (“An excessive charge could well serve to inhibit the pursuit of rights conferred by the Public Records Act.”).

B.

The narrow focus of the challenge before us is whether the application of the SAO’s public records review policy to the facts of this case amounts to an unlawful delay and denial of access. This Court recognized this theory in Johnson v. Jarvis, 74 So.3d 168, 171 (Fla. 1st DCA 2011), where we said that the “reasonableness of the appel-lee’s policy itself is not the subject of the inquiry. Rather, the inquiry centers on whether the application of the policy resulted in an unjustified delay that amounted to an unlawful refusal to comply with chapter 119.” The focal point in Jarvis was whether a facially reasonable policy might nonetheless result in an unreasonable delay of access based on the policy’s application to a particular set of facts. Id. at 170-71 (remanding to “determine whether there was a delay to produce the requested records and, if so, whether the delay was reasonable under the facts of this case.”).

Here, the Media’s primary point is that the SAO’s public records review policy is combative, inefficient, unduly expensive, and prolonged, which made it virtually impossible to get access to Mr. Dunn’s phone recordings prior to trial. They further contend that the SAO overstated its estimated special service charges and increased delays by failing to disclose summaries of the phone calls and failing to take any steps to coordinate or combine its ongoing review of Mr. Dunn’s phone recordings. The Media points out the antipathy between it and the SAO, which the magistrate observed was “palpable,” along with the SAO’s public statements criticizing the public records laws. All of this, according to the Media, reflected an intent to make the process of getting the requested public records as onerous as possible for them.

The SAO counters that it has two independent review processes, both facially reasonable, and that the Media requests for the phone recordings vacillated, making it unclear whether they desired the calls and would pay the deposit. Further, due to the extensive review needed to complete the calls — 360 hours — requiring a deposit was not unlawful. The SAO also notes that the Media does not claim the magistrate’s findings lack competent substantial evidence as to the SAO’s estimated costs and methodology and the estimated time for review and production.

We first note that the SAO’s policy of requiring the payment of a deposit prior to redaction and delivery of public records is facially, reasonable. Colby, 976 So.2d at 87 (“[T]he County’s policy of requiring an advance deposit seems prudent given the legislature’s determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records.”). Noting that “the facts in this case do not suggest an abuse” by the custodian, the Second District emphasized that the County reviewed the records faster than estimated and at a cost lower than it could have charged. Id. Thus, the reasonableness of a policy and its application — based on the facts in a particular case — guides whether an abuse of discretion is shown. As a counter-point, the Media cites to Office of the State Attorney for the Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So.2d 759, 765 (Fla. 2d DCA 2007), which upheld the trial court’s conclusion that “requiring payment before an invoice cannot excuse the delay in providing [public] records.” Though Gonzalez is distinguishable because it involved only photocopying costs, rather than “special service charges” as is the case here, we agree with the larger point, which is that the factual context of how much advance deposit must be paid for special service charges can be abused.

We next turn to the claim that the SAO should have attempted to consolidate its evidentiary review for trial with its public records review process. The magistrate, and by implication the trial judge, rejected the position that it could compare the SAO’s two policies with the hybrid one proposed by the Media, concluding that the only inquiry permitted by law was whether the SAO’s policies were themselves reasonable. Nonetheless, the magistrate-agreed that the type of cooperative policy suggested by the Media was something that the SAO should consider, saying:

• I agree with you, it is something that should be looked • at and perhaps the policy may be changed. But unfortunately that’s not my power, and not the ability that I have to do anything about ... so probably it might have been a brighter idea at that time to contemporaneously, while they searched it for evidence to also search it for exemptions, so that they would have it available to produce. But that’s not the case, and that’s not the law. Just because they could have, doesn’t mean that they were required to.

Thus, the legal focus of the magistrate’s analysis was solely on whether the SAO’s policies independently were facially reasonable, not whether their application to the Media’s requests — in the factual context of a palpably hostile relationship between the SAO and the Media — was unreasonable. Given this limited focus, the evidence taken at the hearing established that the evidentiary review and the public records review by the SAO are two different tasks, both facially reasonable.

While we agree as to the facial validity of the SAO’s individual policies, we recognize that otherwise facially valid policies can be implemented in such a way as to result in unjustified delays or costs that lack good faith. See Jarvis, 74 So.3d at 170-71. But to reverse the trial court’s adoption of the magistrate’s order, we would have to conclude that the SAO had a legal duty while conducting its review of criminal discovery for use at trial to adapt or modify that process to combine it with its public records review process. To our knowledge, no case has addressed this legal question.

Valid arguments exist either way. In some situations, a state attorney’s office may be able to combine its criminal discovery efforts to facilitate its public records review process, and thereby reduce costs and lessen delay to the requesting parties. Indeed, in response to the Media’s assertion that the SAO’s public records policy was duplicative and unreasonable, the magistrate agreed to some extent, saying “[t]hat point is well taken, that part of it seems to be unreasonable.” Contrarily, the imposition of a legal duty, versus a hortatory one, could have unintended and costly consequences by imposing administrative burdens on agencies that do not have the resources or personnel to conduct the two review functions simultaneously. Here, the SAO apparently conducted both processes as to the criminal discovery it initially disclosed, but disclosure of that batch of public records did not include review of phone recordings, which are the focus of this case. Other policy arguments from both perspectives undoubtedly exist.

All that said, the ultimate question here is whether the application of the SAO’s public records policy is unreasonable because it failed to take steps to avoid repetition and duplication with its review of the recordings for use at trial. Coordinating trial review efforts with pending public records requests (and perhaps even anticipated requests in the highest profile cases) makes sense, but in the absence of clear legislative intent requiring it, we are unable to conclude that the SAO is legally required to do so.

In conclusion, because we find no legal duty exists to require a custodian of criminal discovery to combine its ongoing discovery review for trial with public records requests, we deny the Media’s request for relief, but certify the following question of great public importance:

DOES A CUSTODIAN OF CRIMINAL DISCOVERY HAVE A LEGAL OBLIGATION TO, WHERE POSSIBLE, COMBINE ITS REVIEW OF DISCOVERY FOR TRIAL PURPOSES WITH A PUBLIC RECORDS REQUEST IF DOING SO WILL BE ECONOMICALLY EFFICIENT AND RESULT IN LESS DELAY?
PETITION DENIED.

THOMAS, RAY, and MAKAR, JJ., concur.

      . This vacillation appears to have occurred during the time when the trial court's restrictive orders were in place, making it confusing what (and when) criminal discovery would be made available to the public and Media.

      . The Media also argues that the SAO should have used the prosecution support specialist’s call summaries to shorten the redaction process or to enable them to identify which calls the Media might request. The availability of those summaries, possibly redacted of any notations that might reveal trial strategy, would be of immense assistance to persons who might be put in the position of trying to determine which of 186 phone recordings they might want.


text:
    PRH 4300 BISCAYNE BOULEVARD, LLC, Statvel One, LLC., and Unika Master Association, Inc., Appellants, v. 4300 BISCAYNE BOULEVARD CONDOMINIUM ASSOCIATION, INC’S, Appellee.
    No. 3D14-2425.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Coffey Burlington, Susan E. Raffanello and Daniel F. Blonsky, for appellants.
    Becker & Poliakoff, Lilliana M. Farinas-Sabogal, Michael C. Gongora and Adam Cervera, for appellee.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   ON CONFESSION OF ERROR

On Appellee’s confession of error, the order dated September 30, 2014 granting Appellee, 4300 Biscayne Boulevard Condominium Association, Ine.’s motion for temporary injunction is reversed.


author: PER CURIAM. KNOLL, J.

text:
    Mark B. BECKER, Sr. and Kim Becker v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 2 d/b/a East Jefferson General Hospital.
    No. 2014-C-1849.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   ON APPLICATION FOR SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

PER CURIAM.

| Writ Granted. Because we find the plaintiffs have sufficiently demonstrated there remain genuine issues of material fact, the defendant was not entitled to summary judgment as a matter of law pursuant to La. C.C.P. art. 966. Accordingly, the judgment of the district court is reversed, and the matter is remanded to that court for further proceedings.

KNOLL, J., dissents and would deny the.writ.

KNOLL, J.

|J dissent and would deny the writ.