author: EMAS, J.

text:
    Brett S. STETTNER, Appellant, v. Alan RICHARDSON, Appellee.
    Nos. 3D13-2925, 3D14-261.
    District Court of Appeal of Florida, Third District.
    July 16, 2014.

      Philip D. Parrish, Miami; The Tarich Law Firm and Manny M. Tarich, Fort Lauderdale, for appellant.
    Silverberg & Weiss, Paul Silverberg and Kraig Weiss, Weston, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   EMAS, J.

BACKGROUND

In this consolidated appeal, Brett J. Stettner (“Stettner”) appeals two trial court orders: (1) denying his motion to set aside clerk’s default, to vacate default final judgment and to quash a writ of garnishment; and (2) denying his motion to set aside sheriffs sale. For the reasons that follow, we reverse both orders.

On May 14, 2012, Stettner filed a Petition for Injunction for Protection against Repeat Violence against Alan Richardson (“Richardson”), alleging he had been physically threatened and harassed by Richardson. In his sworn petition, Stettner averred he resided at 1800 NE 114 Street #2005, Miami, Florida (hereinafter “the Miami condo”). Although a temporary injunction was entered, the petition was ultimately dismissed. Thereafter, on October 18, 2012, Richardson filed a lawsuit against Stettner, alleging malicious prosecution, abuse of process, defamation per se, and destruction of property. In his complaint, Richardson alleged that Stettner resided outside Florida and that the court had long-arm jurisdiction over him.

When Stettner failed to file a responsive pleading in the malicious prosecution case, Richardson moved for a clerk’s default, attaching a verified return of service which stated that on November 27, 2012, substitute service was effectuated on Stettner by delivering the summons and complaint to his sister, Tiffany Stettner, at the Miami condo. The clerk’s default was entered and thereafter, the trial court entered a default final judgment against Stettner in the amount of $100,840.35. Richardson then proceeded with efforts to collect on his final judgment by seeking a writ of garnishment. The garnishment notice was mailed to Stettner at the Miami condo.

On June 20, 2013, Stettner filed a motion to set aside the clerk’s default, to vacate the default final judgment and to quash the writ of garnishment. Stettner asserted that he is a Texas resident, that his business address is in New York, and that the Miami condo was an investment property. He also asserted that he was never served, and that his sister Tiffany resided in California at the time of the alleged substitute service and was only in Florida to visit their hospitalized grandfather. Attached to the motion were affidavits from Stettner and his sister. In his affidavit, Stettner averred that he first became aware of the Richardson lawsuit when his father checked the mail at Stettner’s Miami condo and found documents related to the case. Stettner’s sister, Dr. Tiffany Stettner, averred in her affidavit that at all relevant times she resided in California and was in Miami visiting her hospitalized grandfather on November 27, 2012, when an individual arrived at her brother’s apartment with papers for her brother. She averred that she put the papers in a drawer to run to the hospital and forgot to tell her brother about them.

In response, Richardson filed the affidavit of the process server, who averred that he spoke to Tiffany Stettner, that she confirmed she resided at the service address with her brother, that the process server instructed Tiffany to give the documents to Stettner, and that she confirmed the process server’s understanding that he had effectuated proper substituted service.

After a hearing, the trial court denied Stettner’s motion without prejudice, but indicated “additional evidence is needed to make a full and final determination of the ... motion,” and allowed Stettner twenty days to produce supplemental documents to demonstrate Stettner’s and his sister’s usual place of abode from November 27, 2011 to November 27, 2012, and to prove that Stettner’s grandfather was in the hospital on or about November 27, 2012.

In compliance with the court’s order, Stettner filed and served several additional documents. The court reviewed the documents and ordered the parties to conduct further limited discovery. The court also granted Stettner’s emergency motion to stay the sheriffs sale of his Miami condo in order to give Stettner an opportunity to conduct the limited discovery within thirty days. The order indicated that the sale would not be rescheduled for at least thirty days and in a later-filed companion order, the court ordered that if discovery had not begun by the thirtieth day, Stett-ner was required to file a responsive pleading.

Stettner’s sister filed an additional affidavit, in which she denied telling the process server she lived at the Miami condo or that she was authorized to accept documents on her brother’s behalf. She also reaffirmed that she lived in California and was only visiting Florida to see her hospitalized grandfather and that she put the papers in a drawer and forgot to tell Stett-ner. Stettner’s sister also filed additional documents in support of her contention that she resided in California, not Florida, on the date of service, including her California drivers’ license issued in May of 2011, monthly gas and electric bills (and payments thereon) reflecting utility service to her California address from February 2011 through December 2012; Los Ange-les County annual property tax bills for fiscal years 2011-2012 and 2012-2013; and federal income tax returns listing her Los Angeles address. Stettner’s sister also provided copies of hospital records from Aventura Hospital, indicating that her grandfather was admitted to the hospital on November 23, 2012 and discharged December 7, 2012.

Stettner also filed an additional affidavit, attaching copies of: his Texas driver’s license, issued in May of 2012; a letter from a Texas utility company confirming he received gas service at his Houston, Texas address from 2000 through July 2013; his voter’s registration card, valid from January 1, 2012 through December 31, 2013 and listing his Texas address; and several property appraisals of his claimed-Texas residence, containing tax assessments and providing homestead exemptions for that property from 2010-2013.

At a subsequent hearing, where no live testimony was taken, the court considered argument- by the parties and reviewed the documentation. The court also took judicial notice of Stettner’s petition for injunction (filed six and one-half months before the service date at issue in this case) wherein he stated that he lived at the Miami condo address.

The court denied Stettner’s motion to set aside and vacate, finding, in relevant part, that because Stettner filed a sworn pleading in an unrelated proceeding, more than six months earlier, he was judicially estopped from contending that his usual place of abode was not the Miami condo address. The order indicated that “execution shall be forthwith.”

Stettner appealed the order denying his motion on November 18, 2013. During the pendency of the appeal, Stettner’s condominium was sold at a sheriffs sale on January 15, 2014. Stettner filed an emergency motion to vacate the sheriffs sale, asserting he had not been given proper notice of the sheriffs sale as required by section 56.21, Florida Statutes (2009). Richardson had filed an affidavit pursuant to section 56.27, Florida Statutes, for issuance of the notice of sheriffs sale, but listed only the Miami condo as Stettner’s address. The sheriff was not provided the name of, or an address for, Stettner’s counsel, and Stettner’s counsel filed an affidavit that he and his law firm did not receive the notice of sheriffs sale. The trial court denied, without a hearing, Stett-ner’s emergency motion to vacate the sheriffs sale. Stettner appealed this order as well.

This court consolidated the two appeals. Stettner argues that the trial court erred in denying his motion to vacate the default judgment because service on him was not proper due to the fact that Miami condo was not Stettner’s usual place of abode and Stettner’s sister did not reside in the Miami condo. Further, Stettner argues that the trial court should have vacated the sheriffs sale because neither Stettner nor his attorney were given notice of the sale as required by law and notions of due process.

Finding the trial court erred in denying Stettner’s motion to vacate the final judgment and in denying his motion to vacate the sheriffs sale, we reverse.

ANALYSIS

The order denying Stettner’s motion to vacate the final judgment

In Castro v. Charter Club, Inc., 114 So.3d 1055, 1059 (Fla. 3d DCA 2013), this court noted, “[i]t is axiomatic, that a judgment entered without due service of process is void,” and “where a judgment is void due to defective service, the party seeking to vacate such a judgment need not show any other basis for vacating the judgment.” Statutes governing substitute service of process must be strictly complied with, and such provisions are to be strictly construed. Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177 (Fla. 3d DCA 2011). Under section 48.031(l)(a), Florida Statutes (2012), substitute service of process may be made on a defendant by leaving copies of the relevant documents “at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.” The term “usual place of abode” means “the place where the defendant is actually living at the time of service,” and a person can only have one “usual place of abode.” Kemmerer v. Klass Assoc., Inc., 108 So.3d 672, 673-74 (Fla. 2d DCA 2013).

Richardson had the initial burden of establishing the validity of service, which he met by relying on a return of service that was undisputedly regular on its face. Id. at 674. The burden then shifted to Stett-ner to “make a prima facie showing by clear and convincing evidence that the substitute service was, in fact, invalid.” Id. Richardson contends, and the trial court found, that Stettner failed to present clear and convincing evidence that the substitute service was invalid.

As the statute provides, substitute service is perfected when the process server leaves copies of the documents at the defendant’s usual place of abode with a person who resides therein. , Stettner contends not only that the Miami condo was not his usual place of abode on the date of service, but also that his sister, who accepted service on his behalf, did not reside at the Miami condo on that date. As evidence of these assertions, Stettner presented affidavits from himself and his sister, as well as other documentary evidence which showed that, on the relevant dates in question, he lived in Texas and his sister lived in California. A review of the hearing transcript reveals that the trial court initially concluded that the evidence presented by Stettner was sufficient (clear and convincing) to establish that Richardson did not effectuate proper substitute service on Stettner in Miami. However, upon being presented with a copy of Stett-ner’s previously-filed petition for injunction (filed six and one-half months before service of process in the instant case), wherein he stated that he resided at the Miami condo, the court found Stettner was judicially estopped from asserting the Miami condo was not his usual place of abode, and thus concluded that Stettner failed to carry his burden to rebut the facially valid return of service.

The doctrine of judicial estoppel “is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial ... proceedings.” Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001) {quoting Smith v. Avatar Properties, Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998)). Importantly, “an estoppel is not raised by conduct of one party to a suit, unless by reason thereof the other party has been so placed as to make it act in reliance upon it unjust to him to allow that first party to subsequently change his position.” Id. (citing 21 C.J. 1228). We hold the trial court erred in applying the judicial estoppel doctrine to find, as a matter of law, that Stettner was prohibited from contending that his usual place of abode, at the time of service, was some place other than the Miami condo.

First, the injunction petition was filed on May 14, 2012, more than six months prior to the date Stettner’s sister was served with the summons and complaint. Thus, Stettner did not necessarily take a “totally inconsistent position” by stating that his usual place of abode on November 28, 2012 was in Texas. Additionally, Stettner’s petition for injunction indicated only that he “resided” in Miami, and not that the Miami condo was his “usual place of abode.” Florida law is clear that the terms “residence” and “usual place of abode” are not necessarily the same thing. See e.g., Robles-Martinez, 88 So.3d at 182. Further, we note that Richardson, in his own complaint, alleged that Stettner resided outside Florida and was subject to Florida’s long-arm jurisdiction.

Clearly, there is a disputed issue of fact as to where Stettner’s “usual place of abode” was on the date of service of process in November of 2012. There is also a dispute as to whether Stettner’s sister resided in the Miami condo at that time, calling into question whether substitute service was properly effectuated upon her. Thus, because we find it was error for the trial court to apply the doctrine of judicial estoppel under these circumstances, we reverse the order denying the motion to vacate and remand for the trial court to conduct a full evidentiary hearing for the purpose of resolving these disputed issues of fact.

The order denying Stettner’s motion to vacate the sheriffs sale

Under section 56.21, Florida Statutes (2013), notice of all execution sales must be given by advertisement in a local newspaper each week for four consecutive weeks:

On or before the date of the first publication or posting of the notice of sale, a copy of the notice of sale shall be furnished by the sheriff by certified mail to the attorney of record of the judgment debtor, or to the judgment debtor at the judgment debtor’s last known address if the judgment debtor does not have an attorney of record.

It is uncontested that, in the proceedings below, Stettner did have an attorney of record, Mr. Tarich, and that Tarich filed an affidavit stating that he and his law firm never received the sheriffs notice of the pending sale. Richardson offered nothing to rebut this fact, and argues on appeal only that Stettner should have known because the order denying the motion to vacate stated “let execution issue” and that Stettner never proved he did not receive notice from the sheriff. The trial court denied Stettner’s motion to set aside the sheriffs sale without a hearing. This was error. See Beltran v. Kalb, 982 So.2d 24 (Fla. 3d DCA 2008). Therefore, we reverse the order denying the motion to set aside the sheriffs sale and remand for the trial court to conduct a hearing on the issue of whether Stettner (or his attorney) properly received notice of the sale.

Reversed and remanded with directions.

      . Stettner owns this unit; the return of service indicated that Stettner’s sister also resided there.

      . The statute also requires that the person residing therein be fifteen years or older, but there is no dispute that this requirement was met.

      . An exception to this general limitation on the application of judicial estoppel exists where "special fairness or policy considerations appear to compel it.” Blumberg, 790 So.2d at 1067 (quoting West v. Kawasaki Motors Mfg. Corp., 595 So.2d 92, 94 (Fla. 3d DCA 1992). We find, however, that this exception does not apply in this case. See Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So.2d 1218 (Fla. 2d DCA 2008) (holding where the facts regarding the ultimate issue were always in dispute, the exception is not warranted).

      .This is not to say that, upon the taking of testimony, the trial court cannot consider these circumstances in making the necessary assessments of witness credibility. Rather, we merely conclude that because the two positions may be reconcilable, they are not totally inconsistent positions subject to an application of judicial estoppel.

      . Richardson’s affidavit, filed pursuant to section 56.27, Florida Statutes (2013) was signed and sworn to on December 2, 2013. By that date, Stettner had already retained counsel, and had filed his motion and affidavit in which he averred he resided in Texas (and setting forth his Texas residence address) and had never resided at the Miami condo address. Nevertheless, Richardson's affidavit listed only the Miami condo as Stettner's address, and did not include the name of Stett-ner's counsel or counsel's address. As a result, it appears there are disputed facts as to whether Stettner or his counsel received the requisite notice pursuant to section 56.21.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Earl Travis CAMPBELL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-2616.
    District Court of Appeal of Florida, Third District.
    July 16, 2014.

      Earl Travis Campbell, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondent.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

The present habeas corpus petition is Earl Travis Campbell’s (“the defendant”) eleventh postconviction effort to overturn his December 2000 conviction and subsequent sentence for second degree murder with a firearm. In addition to the fact that this is the defendant’s eleventh effort, the claim the defendant raises in his current petition is wholly without merit. Although the defendant claims that manifest injustice has occurred due to the trial court’s failure to instruct the jury on justifiable and excusable homicide when instructing the jury on the lesser-included offense of manslaughter, the record, reflects that the trial court properly instructed the jury on justifiable and excusable homicide and then again expressly referenced the justifiable and excusable homicide instructions when instructing the jury on manslaughter. Specifically, the trial court instructed the jury, in relevant part, as follows:

JUSTIFIABLE HOMICIDE

F.S. 782.02

The killing of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing.

EXCUSABLE HOMICIDE

F.S. 782.03

The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:
1. When the killing is committed by accident or misfortune in doing any lawful act by lawful means with ordinary caution and without unlawful intent, or
2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

Then later, when instructing the jury on manslaughter, the trial court specifically referenced the justifiable and excusable homicide instructions it had previously read to the jury: “[T]he defendant cannot be guilty of Manslaughter if the killing was either justifiable or excusable homicide as I have previously defined those terms.” Thus, the jury was properly instructed, and the defendant’s claim in this petition is frivolous.

Based on the defendant’s numerous, successive, and meritless postconviction filings, on March 19, 2014, this Court ordered the defendant to show cause why he should not be prohibited from filing further pro se pleadings in this Court concerning his conviction and sentence in case number 00-26687. After carefully considering the defendant’s response to this Court’s show cause order, see State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (explaining that courts should give pro se litigants notice and an opportunity to respond before preventing them from making further filings), we have decided to give the defendant the benefit of the doubt, and thus, we discharge the show cause order. We do so, however, with a strong reminder to the defendant that there comes a point in postconviction proceedings where “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

Although we recognize the defendant’s right to challenge the lawfulness of his conviction(s) and sentence, see Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005), there is no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps punishment of ... sanctions.”).

Petition denied; order to show cause discharged.

      . (1) Direct appeal filed on 2/16/01 and per curiam affirmed on 2/27/02. Campbell v. State, 807 So.2d 801 (Fla. 3d DCA 2002). (2) Rule 3.850 motion for postconviction relief filed in the trial court on 8/29/02, and denied on 8/22/06. (3) Petition for writ of mandamus denied by this Court in 2003. Campbell v. State, 857 So.2d 886 (Fla. 3d DCA 2003). (4) Petition for a belated appeal filed on 8/23/07 regarding the denial of his rule 3.850 motion for postconviction relief on 8/22/06, which was granted by this Court. On 7/15/09, this Court affirmed the denial of the defendant’s rule 3.850 motion for postconviction relief. Campbell v. State, 72 So.3d 758 (Fla. 3d DCA 2009) (table). (5) Federal habeas petition filed on 3/19/10, and denied on 11/30/2010. Campbell v. McNeil, 2010 WL 4942977 (S.D.Fla.2010) (unpublished). (6) Appeal of the denial of the defendant’s federal habeas corpus petition filed on 12/20/10, and subsequendy denied. (7) Motion for a certificate of appealability filed with the Eleventh Circuit Court of Appeals on 2/9/11 and denied on 6/16/11. (8) Motion to correct sentence filed in the trial court on 4/15/13, and denied on 5/10/13. (9) Motion to correct sentence filed in the trial court on 7/12/13, and denied on 7/26/13. (10) Appeal of the 7/26/13 denial of his motion to correct sentence, which was filed in this Court on 8/29/13, and affirmed on 3/19/14. (11) The instant petition filed on 10/11/13.


text:
    Benjamin SCHUMACHER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1532.
    District Court of Appeal of Florida, Third District.
    July 16, 2014.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Mary-Grace L. Mendoza, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SCALES, JJ.
   ROTHENBERG, J.

Benjamin Schumacher (“the defendant”) pled guilty to grand theft and dealing in stolen property in exchange for a sentence of probation and the payment of restitution to the victim. Following a restitution hearing, the trial court ordered restitution for six of the items stolen for a total restitution amount of $28,400. Based on our review of the evidence and the State’s partial confession of error regarding the restitution ordered for two of the items — a sleigh bed ($1,200) and a Spode china set ($1,200) — we affirm the restitution ordered for the silver tray, two table tops, and Edwardian bedroom set and reverse the restitution ordered for the sleigh bed and Spode china set, as there was insufficient evidence to support the amounts ordered on those two items. See Thompson v. State, 68 So.3d 425, 426 (Fla. 4th DCA 2011) (providing that “[fjair market value is calculated by reference to four factors: (1)the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation”).

Affirmed in part; reversed in part.


author: PER CURIAM.

text:
    Jason Wayne QUICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4702.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Rehearing Denied Aug. 15, 2014.
    Nancy A. Daniels, Public Defender, Megan L. Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: MAY, J.

text:
    Dominique WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1124.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for attempted first-degree murder with a firearm and aggravated battery with a firearm. He argues the trial court erred in admitting victim one’s testimony from the suppression hearing and two rap videos. He also argues the court erred in excluding certain portions of victim one’s deposition testimony. The State cross-appeals and argues the trial court erred in imposing his sentences as concurrent, rather than consecutive.

We find no merit in the defendant’s issues on appeal and affirm his conviction. We reverse the sentences however on the State’s cross-appeal, and remand the case to the trial court for imposition of consecutive sentences based on section 775.087(2)(d), Florida Statutes (2011).

The defendant and co-defendant shot at two people in a car while they were parked in a driveway. They wounded victim one in the face and the arm. Victim two was injured by flying glass from the vehicle caused by the gunshots. The State charged the defendant and co-defendant with attempted first-degree murder of victim one and aggravated battery of victim two, both with a firearm.

Prior to trial, the defense moved to suppress victim one’s photo-lineup identification of the defendant, arguing it was tainted and unreliable. Victim one testified at the suppression hearing and gave a detailed account of the shooting. The court denied the motion to suppress.

Victim one was murdered four days after the hearing. The State asked the court to find victim one unavailable for trial and allow the admission of his suppression hearing testimony. Defense counsel objected and argued he had an insufficient opportunity to cross-examine victim one at the hearing. The trial court ruled the testimony admissible.

The jury found the defendant guilty as charged, specifically finding he actually possessed and discharged a firearm, causing great bodily harm. The trial court sentenced the defendant to thirty years’ imprisonment with a twenty-five-year mandatory minimum for the attempted murder of victim one. The court sentenced the defendant to twenty years’ imprisonment with a twenty-year mandatory minimum for the aggravated battery of victim two. Over the State’s objection, the court ordered the sentences to run concurrently. Both the State and the defendant filed timely notices of appeal to this Court.

We find no error in the trial court’s ruling that the defense had sufficient opportunity to cross-examine the victim at the hearing on the motion to suppress. See Thompson v. State, 995 So.2d 532 (Fla. 2d DCA 2008) (finding murdered witness’s prior testimony admissible where defendant was present, motivated to probe witness’s recollection and credibility, and had an opportunity to cross-examine witness at first hearing). We also find no error in the trial court’s ruling not to allow the use of certain portions of victim one’s deposition as inconsistent statements. See § 90.614(2), Fla. Stat. (2011) (“Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement .... ”); see also Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (finding the court properly excluded alleged inconsistent statement as the defendant could not lay a proper foundation).

And last, we find no error in the trial court’s admission of the rap videos created by the defendant as they were relevant to the commission of the crime. See Faust v. State, 95 So.3d 421 (Fla. 4th DCA 2012) (finding audio recordings suggesting the defendant was using code words to direct others to get rid of a weapon were relevant). We therefore affirm the defendant’s conviction.

The State however raises a valid argument on cross-appeal. It argues that the trial court’s imposition of concurrent mandatory minimum sentences for possession and discharge of a firearm on two separate felonies constitutes an illegal sentence. We agree. We have de novo review. Jackson v. State, 925 So.2d 1168, 1169 n. 1 (Fla. 4th DCA 2006).

Section 775.087(2)(d) states:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (2011) (emphasis added). The State argues that “shall” means the trial court lacks discretion to impose anything but a consecutive sentence.

We addressed this issue in Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013). There, the defendant was sentenced to “four consecutive minimum mandatory twenty-year sentences on four counts of aggravated assault with a firearm resulting from one criminal episode.” Id. at 880. On appeal, the defendant argued the trial court erred in finding that it had no discretion but to impose consecutive sentences. We held that the statute requires the trial court to impose consecutive sentences; there is no discretion. Id.

Based on our decision in Williams, the defendant agrees that the imposed sentence is illegal. We therefore reverse and remand this case to the trial court to vacate the concurrent sentences and to impose them consecutively. Because Williams is currently before the Florida Supreme Court, as requested by the defense, we again certify the following question as one of great public importance:

Does section 775.087(2)(d)’s statement that “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense” require consecutive sentences when the sentences arise from one criminal episode?

Affirmed on Direct Appeal; Reversed and Remanded on the State’s Cross-Appeal.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . We certified the following question to the supreme court as one of great public importance:
      Does section 775.087(2)(d)’s statement that "The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense” require consecutive sentences when the sentences arise from one criminal episode? Id. at 884. The Florida Supreme Court accepted jurisdiction and held oral argument on June 4, 2014.


text:
    Marcus Kennard LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4587.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Carey Haughwout, Public Defender, and Louis G. Carres, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The parameters of the Fourth Amendment are on review in this appeal from a criminal conviction and sentence for robbery and aggravated assault, both with a firearm and while wearing a mask. The defendant argues the trial court erred in denying his motion to suppress because law enforcement exceeded a consensual encounter with the defendant without reasonable suspicion. He also argues the trial court erred in admitting evidence of collateral crimes. We agree that the court erred in denying his motion to suppress and therefore reverse in part. We see no error in the admission of the collateral crime evidence and affirm on that issue.

On December 22, 2010, the defendant entered a food mart wearing a bright-yellow knit face mask and carrying a black handgun. He placed a bag, resembling a lady’s purse, on the counter and demanded money. The clerk thought the defendant was familiar with the store because he pointed the gun precisely where money was held for the next shift. The clerk gave the money to the defendant, who exited the store and went east.

A witness, pulling out of a gas station across the street, saw the defendant approach the food mart, pull the yellow mask over his face, and enter the store. The witness called 911. He watched the defendant leave the store and go east.

The witness followed the suspect. At one point, the defendant stopped, turned around, and yelled for the witness not to call the police. This allowed the witness to get a good view of the defendant’s face. The police responded to the scene, but did not find the defendant.

Six days later, the defendant entered the same food mart, where two other clerks were working. The defendant wore a black shirt, black trousers, a face mask, and gloves. He brandished a firearm and ordered one of the two clerks to give him the money. The defendant placed a bag on the counter and, after receiving the money, pointed his weapon at the same location where money was held for the next shift. After the clerk filled the bag with money, the defendant again left in an easterly direction.

The first deputy on scene met with the two clerks. One of them showed the deputy the direction in which the suspect left. The deputy issued a BOLO and began searching for the suspect. The deputy saw a male fitting the suspect’s physical description, but wearing different clothing. The deputy shined his searchlight on him. Because he did not seem startled and did not take flight, the deputy continued on his way.

A second deputy in a marked police vehicle with his lights engaged was participating in a perimeter sweep. He saw the defendant, who looked over his shoulder at least twice in the direction of the food mart. No one else was walking in the area at the time.

The second deputy blocked the defendant’s path with his vehicle, stepped out of the car, and approached him.- He announced his presence and said: “Hey, come over here; I’d like to talk with you.” The defendant complied.

Upon making contact, the deputy placed his hands on the defendant’s chest and back, admittedly to see if the defendant’s heartbeat was elevated or if his shirt was hot or cold. The defendant told the deputy that his cousin drove him home to get money, and he was walking back to Mc-Donalds to meet his cousin. At this point, the deputy felt his suspicion had been raised enough to detain the defendant. He placed the defendant in the back of his patrol car to await a show-up.

The first deputy returned to where the defendant was being detained. He recognized him as the person he saw earlier. He questioned him without giving him Miranda warnings. The deputy returned to where he originally saw the defendant and started searching the bushes. He recovered a brown glove, a navy-blue hooded sweatshirt, a checkered purse, a firearm, a yellow mask, and shoes.

Several weeks later, a detective conducted a photo lineup with the witness from the first robbery, who positively identified the defendant. Based on that identification, the State charged the defendant with the first robbery. The yellow mask and firearm were tested and found to contain the defendant’s DNA. The State then charged the defendant with the second robbery.

Prior to trial on the second robbery, the defendant moved to suppress all evidence obtained as a result of the stop. He argued that the encounter with the second deputy was not consensual because a reasonable person would not have felt free to leave. He argued that the encounter was an illegal stop because the second deputy did not have reasonable suspicion that he was engaged in criminal activity. Because the stop was illegal, the defendant argued that all evidence found as a result, including the DNA evidence, was the fruit of an illegal stop and should be suppressed. He also argued that his statements must be suppressed because he was never read Miranda warnings.

The State responded that the stop was legal and within the scope of a consensual encounter. Alternatively, if the stop was illegal, the evidence would have been inevitably found by officers.

The trial court denied the motion to suppress, finding that the defendant was not detained and his statements to the second deputy were part of a consensual encounter. The court also found that the first deputy’s identification of the defendant in the back of the police car need not be suppressed because the initial stop was legal. The court, however, suppressed the defendant’s statements to the first deputy because he was not read Miranda warnings.

The case proceeded to trial. The jury found the defendant guilty of robbery with a firearm while wearing a mask, and aggravated assault with a firearm while wearing a mask. The court sentenced the defendant to fifteen years’ imprisonment for the robbery, with a ten-year mandatory minimum for possession of a firearm, and five consecutive years on the aggravated assault charge, with a three-year mandatory minimum for possession of a firearm. From his conviction and sentence, the defendant now appeals.

On appeal, the defendant maintains the trial court erred in denying his motion to suppress because the deputy’s touching of him exceeded a consensual encounter. The State responds that the interaction between the deputy and the defendant was a consensual encounter, and the defendant was free to ignore the deputy’s questions and continue on his way. The State argues that reasonable suspicion was unnecessary because it was a consensual encounter.

We have a mixed standard of review. We defer to the trial court’s factual findings, but independently determine whether those facts amount to reasonable suspicion as a matter of law. Miranda v. State, 816 So.2d 132,134 (Fla. 4th DCA 2002).

We agree with the defendant that what started as a consensual encounter transformed into a stop without the requisite reasonable suspicion when the deputy placed his hands on the defendant. As such, the trial court erred in denying the motion to suppress. This case is similar to Copeland v. State, 717 So.2d 83 (Fla. 1st DCA 1998).

There, deputies were patrolling a high-crime area when they recognized two individuals, one of whom was Copeland. Id. at 84. The deputies spoke with them until one of the deputies noticed a bulge in Copeland’s pocket and squeezed it. Id. After discovering that it was not hard or metallic, the deputy asked what the object was. Id. Copeland responded that it was “reefer,” and was subsequently arrested for possession of marijuana. Id.

Copeland moved to suppress the drugs, arguing that the officer’s touching transformed the consensual encounter into a stop without reasonable suspicion. Id. The trial court denied the motion, and Copeland appealed. Id. The First District reversed, holding that the motion to suppress should have been granted because the touching turned the consensual encounter into a stop. Id. at 85.

Here, as in Copeland, the initial encounter with the defendant was consensual. The second deputy testified that his interaction with the defendant was nonchalant and consensual. He asked the defendant to approach for questioning. The defendant complied. But the consensual nature of the encounter ceased when the deputy-touched the defendant’s chest and back, admittedly to gain information about his heart rate and temperature. While these determinations would, and did, raise the level of the deputy’s suspicion, they also converted the consensual encounter into a stop.

“Although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries ....” Golphin v. State, 945 So.2d 1174, 1182 (Fla.2006) (quoting Popple v. State, 626 So.2d 185, 187-88 (Fla.1993)). When viewed objectively, a reasonable person would not feel free to leave under the circumstances presented here. The trial court erred in denying the motion to suppress.

This error also intruded on the court’s ruling concerning the evidence discovered as a result of the stop. The State relies on the inevitable discovery doctrine to avoid the consequences of the illegal stop, but that doctrine is inapplicable here.

“For the inevitable discovery doctrine to apply, the state must establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct ....” McDonnell v. State, 981 So.2d 585, 591 (Fla. 1st DCA 2008) (emphasis added). The State had the burden of proving that the evidence would have been found regardless of seeing or speaking to the defendant. Id. at 591-92.

The first deputy testified that once he saw the defendant in the back of the police car, he recognized him as the man he had seen earlier. The defendant’s answers to his questions gave him the idea to go back and search the bushes. It is therefore unlikely that the deputy would have returned to the defendant’s prior location to search without the benefit of the unlawful stop and his questioning of the defendant. For this reason, the trial court should have suppressed the evidence found by the bushes.

We find no merit in the Williams rule issue raised. The trial court correctly found that the robberies were sufficiently similar to warrant the introduction of the evidence of the first robbery. See Johnson v. State, 110 So.3d 954 (Fla. 4th DCA 2013) (affirming the admission of Williams rule evidence where each robbery was committed at a similar location in a similar way, and within close temporal proximity). Here, the two robberies were committed in the same location, six days apart, by a single suspect. The suspect held a gun in his right hand, wore a bright-yellow mask, carried a checkered bag that he placed on the counter, pointed the gun at a location where money was kept, scanned the room during the robbery, and held the mask in place with his left hand. Store security cameras recorded the similarity of both robberies.

For these reasons, we reverse the denial of the motion to suppress, but affirm the admission of Williams rule evidence.

Affirmed in part; Reversed in part; and Remanded for further proceedings consistent with this opinion.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . At the suppression hearing, the second deputy testified that the defendant was not under arrest at that time. The show-up was nega-five, but the second deputy learned that the defendant was violating curfew, so he placed him under arrest.

      . While the trial court suppressed that conversation, the fact remains that the deputy returned to search the location because of the answers given to him by the defendant, who had not been read his Miranda warnings.

      . Williams v. State, 621 So.2d 413 (Fla.1993).


text:
    Jermaine FACEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-618.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Luis Alberto Guerra, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying appellant’s rule 8.850 motion for postconviction relief. We conclude that the record refutes appellant’s allegations of ineffective assistance of counsel and that appellant’s remedy from the harsh consequence of deportation lies, if anywhere, with immigration officials.

Background

On January 15, 2013, Facey, a citizen of Jamaica and lawful permanent resident of the United States, entered a negotiated plea to grand theft. According to the factual basis announced during the plea hearing, Facey used a clearance code to obtain a discount for his friends at a clothing store, causing the company to lose $459.37. Adjudication was withheld, and he was placed on probation for 18 months. Immigration officials subsequently initiated removal proceedings in August 2013 based on the conviction in this case.

In November 2013, Facey’s retained counsel filed a motion for postconviction relief, arguing that trial counsel was ineffective in “failing to tell [Facey] anything about the possible adverse immigration consequences” of the plea and failing to even advise Facey to consult with an immigration attorney. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The motion claimed that if counsel had advised Facey to consult with an immigration attorney he would not have pleaded.

The trial court denied the motion based on the State’s response which explains that Facey signed a written plea form that advised him that this plea “will” result in his deportation. In the plea form, Facey acknowledged that he had read and understood the plea form which he signed and initialed.

The State further noted that during the plea colloquy the court confirmed that Fa-cey had spoken about the immigration consequences with counsel and that Facey did not want to confer with an immigration attorney. The following transpired during the plea colloquy:

COURT: Are you a United States Citizen?

DEFENDANT: No, Judge.

COURT: Do you understand by entering into this plea, with a withhold or an adjudication, that that could subject you to being deported?

Where are you from?

DEFENDANT: Jamaica.

COURT: You could be asked by the United States Immigration to leave the country permanently as a result of this plea, or held by immigration, picked up by immigration and held by immigration; do you understand that?

DEFENDANT: Yes, Judge.

COURT: And you talked thoroughly about the consequences with Mr. Rubin-chik [defense counsel]?

DEFENDANT: Yes, yes.

COURT: And do you want to talk to anyone else about the immigration consequences?

DEFENDANT: No, Judge.

The judge later inquired of defense counsel:

COURT: You did go over the immigration consequences, Mr. Rubinchik?
COUNSEL: I did. And I explained because he’s a non-citizen he’ll not be eligible for PTI [a pretrial intervention program].

COURT: Right.

COUNSEL: I tried to get the State this morning to acknowledge the nature of the case, if he would pay restitution in full, if they would dismiss the case so Mr. Facey wouldn’t have to face those consequences. That request was denied, as well.
Mr. Facey has the immigration consequences, and I’ll ask the Court to allow him to verify probation through pay stubs. I don’t want to jeopardize his job.

This appeal follows.

Discussion

The record conclusively refutes Fa-cey’s allegation that counsel failed to “tell him anything” about the immigration consequences or that Facey was prejudiced by counsel failing to advise him to consult an immigration attorney. To the contrary, the record shows that Facey entered the plea aware of the possibility of deportation and that counsel sought other avenues in an attempt to avoid the immigration consequences.

The Florida Supreme Court has held that, where the deportation consequences are “truly clear” and virtually automatic, as they were for Mr. Padilla, who pleaded to an aggravated felony, an “equivocal” “may” or “could” deportation warning as required by rule 8.172(c)(8) does not categorically bar a Padilla claim. Hernandez v. State, 124 So.3d 757, 762-68 (Fla.2012). Mr. Hernandez, like Mr. Padilla, was convicted of an aggravated felony, which precludes discretionary relief from removal. Id. at 762; 8 U.S.C. § 1101(a)(43)(B) (defining an “aggravated felony” which includes any “drug trafficking crime (as defined in section 924(c) of Title 18”). Here, Facey’s grand theft conviction has not been shown to be an aggravated felony, and automatic deportation has not been shown to be clear from the face of the immigration statute. See Cano v. State, 112 So.3d 646, 648 (Fla. 4th DCA 2013) (setting forth what a defendant is required to prove in order to be entitled to relief under Padilla where the standard may or could warning has been delivered).

Third-degree grand theft does not appear to be an aggravated felony but may be a crime of moral turpitude which can result in removal if committed within five years of admission. See 8 U.S.C. § 1227(a)(2)(A)®. The Notice to Appear for removal proceedings indicates that Fa-cey was admitted to the United States on September 11, 2007. The offense was committed in November 2010. Unlike the defendants in Hernandez and Padilla, Fa-cey was not convicted of an aggravated felony and may qualify for discretionary cancellation of removal. See 8 U.S.C. § 1229b.

Padilla does not require defense attorneys to provide perfect advice about immigration consequences. The Sixth Amendment does not guarantee perfect, error-free counsel even as to criminal charges which implicate liberty. Coleman v. State, 718 So.2d 827, 829 (Fla. 4th DCA 1998) (“The standard is reasonably effective counsel, not perfect or error-free counsel”). Padilla by its express terms is limited to those situations where deportation is automatic and clear from the face of the statute. Padilla, 559 U.S. at 369, 130 S.Ct. 1473 (“When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”). Facey has not shown that the grand theft conviction at issue subjects him to automatic deportation that is clear from the face of the statute.

Counsel’s initial brief in this appeal argues a new, different claim. Counsel contends that the warning given by the court, advising that the plea “could subject” Fa-cey to being deported, was insufficient. Florida Rule of Criminal Procedure 3.172(c)(8) requires that a court accepting a plea assure itself that defendant understands that the plea “may subject him or her to deportation[.]” It is improper for counsel to argue a different, unpreserved claim in this appeal, and the trial court’s plea colloquy satisfies the rule.

Conclusion

The trial court properly denied the post-conviction motion at issue because the claim of ineffective assistance of counsel is conclusively refuted by the record. We decline to extend Padilla to create an impractical requirement that criminal defense attorneys provide clients with perfect immigration advice. Here, appellant entered his plea with eyes wide open and aware of the risk of deportation. He now faces the very consequence that he fully acknowledged understanding when he accepted the plea.

We understand the concerns regarding the “harsh consequences of deportation.” Padilla, 559 U.S. at 360-64,130 S.Ct. 1473. However, by entering into the plea deal, the defendant avoided the possibility of a prison term. Serving a prison sentence (for up to five years in this case), only to face removal upon release from incarceration, is a harsh consequence as well. While we often see much more serious offenses that are far more deserving of deportation, Congress has eliminated the procedures permitting a judicial recommendation against deportation. Id. at 361-62, 130 S.Ct. 1473. Facey’s remedy from the harsh consequence of deportation in this case lies, if anywhere, with the discretion of immigration officials.

Affirmed.

WARNER, MAY and CIKLIN, JJ, concur.


text:
    STATE of Florida, Appellant, v. Roland HATTON, Appellee.
    No. 2D13-952.
    District Court of Appeal of Florida, Second District.
    July 23, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The State appeals from the postconviction court’s order granting relief on one of the claims raised in Roland Hatton’s motion for postconviction relief. We affirm in part, and we reverse in part.

For offenses occurring in 2003, Mr. Hat-ton was tried and found guilty by a jury of sexual activity by a person in familial authority and lewd and lascivious exhibition. The trial court sentenced him to thirty years in prison on the sexual activity charge and fifteen years in prison on the lewd and lascivious exhibition charge. Notably, the trial court designated the sentences to run concurrently. Mr. Hatton moved for a new trial, which the trial court granted. Mr. Hatton was again found guilty of both offenses at his second trial. He was resentenced by a different circuit judge. The successor judge sentenced him to thirty years on the sexual activity charge and fifteen years on the lewd and lascivious charge. However, the successor judge designated the sentences to run consecutively instead of concurrently. Thus Mr. Hatton’s successful new trial motion ultimately resulted in a forty-five-year prison term instead of the thirty-year term that he had previously received. This court affirmed Mr. Hatton’s judgment and sentences resulting from the second trial. Hatton v. State, 970 So.2d 831 (Fla. 2d DCA 2007) (table decision).

Mr. Hatton filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, raising seven claims for relief. The posteonvietion court summarily denied all seven of the claims raised. Mr. Hatton appealed, and this court affirmed the postconviction court’s denial of all of the claims except claim two. This court reversed the postconviction court’s order with regard to that claim and remanded for reconsideration. Hatton v. State, 90 So.3d 839, 840 (Fla. 2d DCA 2012). In claim two, Mr. Hatton “asserted that counsel was ineffective for failing to advise him that he could receive a harsher sentence on retrial” and “contended that he would not have agreed to the filing of a motion for new trial if counsel had informed him of his potential sentence.” Id.

On remand, the postconviction court conducted an evidentiary hearing on claim two. At the conclusion of the hearing, the postconviction court entered an order that granted the motion as to claim two, vacated Mr. Hatton’s judgment and sentences totaling forty-five years, and ordered another new trial. The State now appeals.

On appeal, the State argues that Mr. Hatton failed to establish either deficient performance of counsel or prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We disagree. After a thorough review of the record, we conclude that there is substantial competent evidence in the record supporting the postconviction court’s findings of deficient performance and resultant prejudice to Mr. Hatton. Nevertheless, the only relief to which Mr. Hatton was entitled is the reinstatement of his original judgment and the sentences totaling thirty years, not a third trial. Accordingly, we affirm the postconviction court’s order to the extent that it finds that Mr. Hatton is entitled to relief on claim two and vacates the judgment and sentences resulting from the retrial. We reverse the portion of the order granting Mr. Hatton a second new trial.

On remand, the postconviction court shall reinstate the original judgment, the sentence of thirty years in prison on the charge of sexual activity by a person in familial authority, and the sentence of fifteen years in prison on the charge of lewd and lascivious exhibition. The sentences shall be designated to run concurrently.

Affirmed in part; reversed in part; remanded with directions.

ALTENBERND, WALLACE, and SLEET, JJ., Concur.


author: SCALES, J.

text:
    Walter PINEDA and Eider Pineda, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D13-2968.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Michael Farrar, Miami, for appellants.
    Lawrence J. Shapiro & Associates, P.A., and Lawrence J. Shapiro, Miami, and Phillip W. Yates, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   SCALES, J.

Appellants, Walter and Eider Pineda (the Pinedas), Cross-defendants below, appeal from the trial court’s November 19, 2013, order, which: (1) granted third-party purchaser Nocari Investment, LLC.’s (No-cari) motion to disburse surplus funds to Nocari, and (2) denied the Pinedas’ motion to disburse those funds to themselves. In this cautionary tale to bidders at foreclosure sales, we reverse and remand with directions that the improperly disbursed surplus funds be re-deposited into the court registry.

I. Background

Wells Fargo Bank, N.A. (Wells Fargo) filed a foreclosure action against the Pine-das to foreclose its senior mortgage on the Pinedas’ home. In addition to the Wells Fargo mortgage, the Pinedas’ home was encumbered by a subordinate mortgage in which Florida Bankers Realty, LLC (FBRL) was the mortgagee.

Along with the Pinedas, FBRL was named as a defendant in the Wells Fargo foreclosure action, and FBRL filed a cross-claim against the Pinedas, seeking to foreclose FBRL’s subordinate mortgage.

Prior to Wells Fargo completing their foreclosure action on their senior mortgage, FBRL sought a final judgment of foreclosure on their subordinate mortgage; the trial court entered judgment for FBRL in the amount of $76,611.28 and set a foreclosure sale date.

In the February 11, 2013, amended summary judgment of foreclosure, Paragraph nine called for distribution of foreclosure sale proceeds as follows:

[T]he Clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: First of all the CROSS PLAINTIFF’S costs; second, documentary stamps affixed to the Certificate; third, CROSS PLAINTIFF’S attorney fees; fourth, the total sum due to the CROSS PLAINTIFF, less the items paid, plus interest .... During the sixty (60) days after the Clerk issues the Certificate of disbursements, the Clerk shall hold the surplus pending further Order of this Court.

On March 27, 2013, the property was sold, obviously subject to Wells Fargo’s superior mortgage, to Nocari for a purchase price in excess of $184,000. After satisfying FBRL’s judgment, a surplus of approximately $99,500 remained in the court registry. Nocari thereafter filed a motion with the trial court, seeking an order for disbursement of the surplus funds.

In its motion, Nocari sought to have the clerk release the surplus funds to Wells Fargo on the condition that Wells Fargo apply the released funds to Wells Fargo’s mortgage loan balance. Alternatively, No-cari sought an order allowing it to receive the surplus funds to use toward satisfaction of Wells Fargo’s mortgage. Nocari argued the Pinedas should not be unjustly enriched by recouping the surplus funds and then not paying Wells Fargo, especially in light of the fact the Pinedas had filed for bankruptcy and received a discharge of their debt owed to Wells Fargo.

The Pinedas opposed Nocari’s motion, arguing third-party purchasers such as Nocari are not entitled to control or direct surplus funds; the Pinedas also moved for an order disbursing the funds to themselves. The Pinedas contended they had priority in the distribution of the surplus funds pursuant to section 45.032(2), Florida Statutes (2013). Section 45.032(2) reads, in relevant part, “There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.”

Wells Fargo responded to Nocari’s motion to disburse surplus funds, contending Nocari is a non-interested third party with whom Wells Fargo has no privity and against whom Wells Fargo should not be forced to mitigate its damages.

On November 5, 2013, the trial court held a hearing on Nocari’s and the Pine-da’s motions to disburse the surplus funds. The trial court queried whether “Nocari knew when they purchased [the property] that they were just buying the interest of [FBRL], not the entire house or property[.]” Nocari’s counsel responded:

Well, they recognized they were bidding on the foreclosure judgment or property encumbered by these liens and one of them is in favor of [Wells Fargo]. Candidly[,] what Nocari was expecting was that all liens that would be proper[l]y attached to the property to the extent they were subject of surplus proceeds would be satisfied.... So Nocari approached this expecting that 99-odd thousand or whatever the surplus would be would then in turn be applied to the first mortgage they know they gotta make up the difference, they don’t get a discount.

Nocari also argued that, if awarded the surplus, the Pinedas would receive a “windfall” because any debt they owed Wells Fargo had been discharged by the Pinedas’ bankruptcy. Although Nocari conceded there was “no law” to support its position that the Pinedas should not receive the surplus, it nonetheless contended the Pinedas should not receive the surplus since they “clearly never paid and will not now pay because they are legally discharged and are divested of ownership of the property.”

The Pinedas argued they would not incur a windfall because Nocari knew it was purchasing the property subject to Wells Fargo’s mortgage. They further contended there was no statutory or case law supporting Nocari’s position.

The trial court initially agreed with the Pinedas, stating, “It sounds ... to me [like] you [Nocari] don’t have any law on your side,” but then found,

It just seems to me that the only equitable resolution would be for the surplus to be released to Nocari for use to satisfy the mortgage. Otherwise it would be a windfall to the Pinedas who have done nothing to defend and they’ve been defaulted. So as an equitable resolution and finding that’s what I’ll do.

The trial court entered the Order on appeal granting Nocari’s motion to disburse surplus funds and denying the Pine-das’ motion to disburse funds. The Order directed the clerk to release the funds directly to Nocari, adding that the “surplus proceeds shall be applied to and used towards pay-off of the existing first mortgage held by [Wells Fargo].” This appeal followed.

II. Analysis

The issue in this case is whether the trial court erred in entering an order disbursing the surplus proceeds from a foreclosure sale to the buyer so that the buyer would use the proceeds to reduce the amount due on a superior lien. Because the issue before this court is purely a question of law, our review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000).

Section 45.032(2) of the Florida Statutes creates a rebuttable presumption that the owner of record receives all “surplus funds after payment of subordinate lienholders who have timely filed a claim.” Section 45.032(l)(a), Florida Statutes (2013), defines the “owner of record” as the person who appears to be the owner of the property “that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens.” While the statutory presumption is “rebuttable,” section 45.032(2) expressly delineates the circumstances under which the presumption may be rebutted, i.e., where the owner has assigned such surplus funds rights to an assignee pursuant to section 45.033(2)(a), Florida Statutes (2013), a situation which does not appear to exist in this case.

Nocari has cited no case supporting its position that it is entitled to the surplus, stating instead that the case law upon which it relies “is silent with respect to the release to a third[-]party purchaser simply acting as a channel to ultimately deliver the funds to a valid lienholder.”

Nocari contends that when it purchased the subject property, it assumed the liability for Wells Fargo’s senior mortgage, and therefore is entitled to disbursement of the surplus to pay off the senior mortgage, at least in part. Nocari urges us to conclude that, because its intention was to pass the surplus to Wells Fargo, Nocari itself would not be “participating” in the surplus.

While we are sympathetic to No-cari’s equitable argument, the fact remains that distribution of surplus foreclosure proceeds is governed by a plain and unambiguous statutory procedure which clearly provides that the owner of record is entitled to the surplus proceeds. Where the legislature has provided such a process, courts are not free to deviate from that process absent express authority. See State v. DiGuilio, 491 So.2d 1129, 1133 (Fla.1986) (“Our responsibility as an appellate court is to apply the law as the Legislature has so clearly announced it. We are not endowed with the privilege of doing otherwise regardless of the view which we might have as individuals.”) (citation omitted); DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So.3d 785, 787 (Fla. 3d DCA 2011) (“The law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.”) (citation omitted).

Neither the statutes nor the case law governing distribution of surplus foreclosure sale proceeds provides a mechanism authorizing a third-party purchaser to obtain the surplus. The statute is clear: the owner of record at the time of the recording of the lis pendens is entitled to any surplus proceeds. See § 45.032(l)(a), Fla. Stat. The Notice of Lis Pendens, recorded September 9, 2009, reflects the Pinedas owned the subject property. Nocari was neither an “owner of record,” an assignee of an owner, nor “subordinate lienholder,” see §§ 45.032(l)(a), (b); § 45.033(2), Fla. Stat., and thus was not entitled to any surplus funds. See Rosen v. Dorn-Kothe, Inc., 126 Fla. 717, 171 So. 646, 648 (1936) (“It appears to be settled beyond all question that one claiming a surplus or the right to share in a surplus resulting from a sale under foreclosure must either own the equity of redemption at the time of the sale or must be one then holding a lien or vested right in the property.”); Jelic v. Sears Mortgage Corp., 614 So.2d 1149, 1150 (Fla. 4th DCA 1993); see also Garcia v. Stewart, 906 So.2d 1117, 1120-21 (Fla. 4th DCA 2005).

Again, while we sympathize that Nocari was an unsuspecting bidder at a foreclosure sale, “[cjourts of equity have no power to overrule established law.” Orr v. Trask, 464 So.2d 131, 135 (Fla.1985) (citing Flagler v. Flagler, 94 So.2d 592, 594 (Fla.1957)). On this record, there simply is no mechanism by which Nocari could recoup the surplus, and thus the trial court erred in finding otherwise.

III. Conclusion

We reverse and remand with directions that Nocari deposit the surplus funds back into the court registry, and for proceedings consistent herewith.

      . Obviously, however, on remand, Nocari is not foreclosed from attempting to establish a statutory entitlement to the surplus if it can meet the applicable requirements of section 45.032.

      . A subsequent Notice of Lis Pendens was recorded August 16, 2011, which likewise re-fleets the Pinedas as the owners of record.


author: SUAREZ, J.

text:
    Vera MENDER, an individual, Appellant, v. Mallory KAUDERER, etc., et al., Appellees.
    No. 3D13-2969.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.

      Lehtinen Schultz Riedi Catalano & de la Fuente and Claudio Riedi, Miami, for appellant.
    Arnaldo Velez, for appellees and J. Alfredo Armas, Coral Gables, and Peter C. Bianchi, Jr., Palmetto Bay, for appellees Nominal Companies.

      Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   SUAREZ, J.

Vera Mender (“Mender”) appeals from an order dismissing her Third Amended Complaint with prejudice. We reverse.

Mender was the minority shareholder in three limited liability companies, and the shareholder in two additional corporations. Messrs. Gothard and Kauderer (“defendants”) were the two other majority shareholders. In 2008, Mender filed her Initial Complaint against the defendants and the corporate entities in her individual capacity, alleging various claims occurring in 2005, including breach of fiduciary duty, failure to distribute proceeds and profits to her from the sale of the LLCs, failure to account for transactions, failure to maximize revenues, among other claims. Mender sought personal damages and trial by jury.

Mender filed her First Amended Complaint in April 2011, still in her individual capacity but eliminating the corporate defendants, asking for declaratory relief and alleging additional claims of improper accounting against the defendants. In June 2011, Mender filed her Second Amended Complaint, bringing the same or similar claims but now in a strictly derivative capacity as minority shareholder on behalf of the LLCs, with the two corporations as nominal defendants. The defendants sought to dismiss the Second Amended Complaint, asserting that Mender’s individual claims were improperly brought in a representative capacity.

Before the trial court ruled, Mender moved to file a Third Amended Complaint, making non-substantive revisions and requesting relief on behalf of the LLCs and herself as a minority shareholder. In May 2012, each defendant moved to dismiss parts of the Third Amended Complaint based on Mender’s improper mixing of personal and derivative claims and damages. The trial court denied the motions and the defendants answered, presented affirmative defenses, and requested a jury trial. Mender moved to strike, asserting that by altering the nature of her complaint from an individual capacity to a strictly derivative action, jury trial was now inappropriate. The trial court struck the jury trial request.

The defendants moved for summary judgment arguing that Mender’s derivative causes of action should be considered new, did not relate back to the original Complaint filed in 2008, or allege a continuing tort. Furthermore, defendants argued, the acts complained of in the Third Amended Complaint occurred in 2005, and thus the Third Amended Complaint filed in March 2012 was time-barred by the applicable statute of limitation. After hearing argument from both parties, the trial court granted the defendants’ motion for summary judgment and entered an order dismissing the Third Amended Complaint with prejudice.

The issue is whether Mender’s Third Amended Complaint “relates back” to the Initial Complaint such that the cause of action is still viable, despite the statute of limitation having expired. Our standard for reviewing the trial court’s grant of a motion for summary judgment, as well as an order dismissing a complaint with prejudice, is de novo. See Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400 (Fla. 3d DCA 2009); GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635, 636 (Fla. 3d DCA 2009).

Florida Rule of Civil Procedure 1.190(a) provides, in pertinent part, that “[ljeave of court [to amend pleadings] shall be given freely when justice so requires.” Florida courts follow a liberal policy with regard to the amendment of pleadings so that claims may be determined on their merits. See Burr v. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996) (finding that the trial court’s denial of the plaintiffs motion to amend “was an abuse of discretion in light of Florida’s liberal policy of allowing amendments to pleadings.”); see also Dausman v. Hillsborough Area Reg’l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005) (holding that leave to amend should be freely given when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought).

Rule 1.190(c) addresses when an amended pleading will relate back to an earlier pleading: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Under this rule, as long as the claims alleged in an amended pleading arise from the same “conduct, transaction, or occurrence” alleged in an earlier pleading that was timely filed, the expiration of the statute of limitation in the interim will not bar the claims asserted in the amended pleading.

As the Second District Court of Appeal explained,

[T]he proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original (for in the strict sense almost any amendment may be said to be a change of the original cause of action), but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim. If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back-even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought.

Keel v. Brown, 162 So.2d 321, 323 (Fla. 2d DCA 1964); see also Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 870 (Fla. 2d DCA 2010). In Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010), this Court explained, “We have articulated the test to be whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises,’ ” and that “[t]he [relation back] doctrine is to be applied liberally to achieve its salutary ends.” See also Caduceus Props., LLC v. Graney, 137 So.3d 987 (Fla.2014) (same), and cases cited therein.

With that in mind, a review of the Initial Complaint shows that Mender, as an individual, asserted a number of claims against Kauderer, Gothard, and the LLCs and corporations, and requested damages and trial by jury. The claims she asserted are more in the nature of claims of breaches of duty by a fiduciary to a shareholder. The Second and Third Amended Complaints allege the same or similar causes of action against the identical parties, but clarified Mender’s status as a shareholder and characterized the claims in derivative terms. The legal theories have not changed; the underlying facts and circumstances have not altered; no “new” parties have been added. In fact, the pleadings as amended are based upon the very same specific conduct, transactions, or occurrences, and between the same parties upon which Mender tried to enforce her original claims.

Although the limitation period may have run, the Third Amended Complaint clearly relates back to the timely-filed Initial Complaint, and should not have been dismissed with prejudice. Mender has stated viable causes of action and the characterization of the complaint as individual or derivative did not alter the underlying facts, circumstances, or parties, and gave fair notice to all parties of the general fact situation out of which the claims arose. See Kiehl v. Brown, 546 So.2d 18 (Fla. 3d DCA 1989); Keel, 162 So.2d at 323. We therefore reverse the order dismissing the Third Amended Complaint with prejudice and remand with instructions to deny the defendants’ motion for summary judgment.

Reversed and remanded.


text:
    TRULY NOLEN OF AMERICA, INC., Appellant, v. KING COLE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D14-477.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.

      Marlow, Adler, Abrams, Newman & Lewis, and Rosemary Wilder, Coral Gables, for appellant.
    Cardillo Law Firm, and Peter M. Cardil-lo, Tampa, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

Truly Nolen of America, Inc. (“Truly Nolen”) appeals a trial court order finding that it waived its right to compel arbitration by filing a motion to transfer venue based on forum non conveniens while simultaneously filing a motion to compel arbitration. Because the actions taken by Truly Nolen were not inconsistent with its right to enforce the mandatory arbitration clause in the parties’ contract, we reverse and remand for further proceedings.

Truly Nolen entered into a contract with King Cole Condominium Association, Inc. (“King Cole”) to provide pest control services for King Cole. King Cole became dissatisfied with Truly Nolen’s performance of services and filed a lawsuit against Truly Nolen in Hillsborough County alleging breach of contract and violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”). As its first action in the litigation, Truly Nolen filed a Motion to Dismiss and/or Stay Second Amended Complaint, which argued that: (1) the case should be transferred to Miami-Dade County under the doctrine of forum non conveniens and Florida Rule of Civil Procedure 1.060(b); and/or (2) the case should be stayed and sent to arbitration based on a mandatory arbitration clause in the parties’ contract.

The Hillsborough trial court held a hearing on Truly Nolen’s motion, at which Truly Nolen appeared and affirmatively argued both portions of its motion. The Hillsborough trial court entered an order transferring the case to Miami-Dade County, and the Second District Court of Appeal affirmed that ruling without opinion. King Cole Condo. Ass’n v. Truly Nolen of Am., Inc., 43 So.3d 51 (Fla. 2d DCA 2010) (table).

After the case was transferred to the Miami-Dade Circuit Court, Truly Nolen again moved to compel arbitration based on a clause in the parties’ contract. King Cole opposed the motion to compel arbitration by filing a memorandum in opposition to the motion, arguing that: (1) the arbitration clause relied on by Truly Nolen was not included in the agreement King Cole signed and was therefore invalid; (2) Truly Nolen waived its right to compel arbitration by affirmatively and successfully arguing for a transfer of venue in the Hillsborough trial court; and (3) enforcing the arbitration clause would deprive King Cole of certain statutory remedies under FDUTPA based on the Florida Supreme Court’s decision in Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2012).

The Miami-Dade trial court conducted a hearing on the motion to compel arbitration and found that Truly Nolen had waived its right to compel arbitration by taking a position inconsistent with that right in the Hillsborough trial court. The Miami-Dade trial court accordingly denied Truly Nolen’s motion to compel arbitration based on its waiver of that right, but specifically and expressly did not reach the other two issues raised in King Cole’s memorandum in opposition to the motion. This non-final appeal followed.

“ ‘A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived.’ ” Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002) (quoting Gale Grp. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (B) whether the right to arbitration was waived.”). The only issue before us on appeal is whether Truly No-len waived its right to compel arbitration— a determination we make de novo because the underlying facts are undisputed. Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 33-34 (Fla. 2d DCA 2005) (holding that a trial court’s ruling on a motion to compel arbitration when the facts are undisputed is reviewed de novo); see also 13 Parcels LLC v. Laquer, 104 So.3d 377, 379 (Fla. 3d DCA 2012).

The waiver of a contractual right requires the “voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). In the context of a party’s right to compel arbitration, “[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Id. (quoting Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)).

Florida courts have routinely held that a party’s active participation in a lawsuit (including filing a lawsuit, filing an answer that does not assert the right to arbitrate, moving for summary judgment, or conducting discovery) is inconsistent with the right to compel arbitration. See Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687-88 (Fla. 2d DCA 2009), and cases cited therein. However, Florida courts have also routinely held that the filing of pre-answer motions, particularly when filed simultaneously with the motion to compel arbitration, does not waive the right to compel arbitration. See, e.g., 13 Parcels, 104 So.3d at 380 (finding that a party who filed a motion to transfer venue after demanding arbitration had not waived the right to compel arbitration); Houchins v. King Motor Co. of Fort Lauderdale, Inc., 906 So.2d 325, 328 (Fla. 4th DCA 2005) (finding no waiver when the defendant filed a motion to dismiss for failure to state a cause of action and then filed its motion to compel arbitration); Hirschfeld v. Crescent Heights, X, Inc., 707 So.2d 955, 956 (Fla. 3d DCA 1998) (filing of motion to dismiss and then motion to compel arbitration did not waive right to arbitration); Graham Contracting Inc. v. Flagler Cnty., 444 So.2d 971 (Fla. 5th DCA 1984) (same).

Here, Truly Nolen asserted its right to compel arbitration simultaneously with its motion to transfer venue and as its first action in the lawsuit. Such action can hardly be considered inconsistent with the right to compel arbitration. Indeed, Truly Nolen took the only action it could to protect both its right to compel arbitration and its right to seek a convenient transfer because the motion to transfer could have been waived if not filed in its first motion or pleading. See Fla. R. Civ. P. 1.140(b) (requiring a motion to transfer venue to be filed prior to any pleadings); Jerolaman v. Van Buren, 512 So.2d 1138, 1140-41 (Fla. 1st DCA 1987) (finding that a defendant who filed an answer waived any right to seek transfer of venue).

In finding that Truly Nolen waived the right to arbitrate, the trial court below relied heavily on R.W. Roberts Construction Co. v. Masters & Co., a 1981 case from the Fifth District Court of Appeal finding that a defendant who unsuccessfully moved to dismiss the complaint for failure to state a cause of action and also to transfer venue could not later move to compel arbitration. 403 So.2d 1114, 1115 (Fla. 5th DCA 1981). The trial court’s reliance on R.W. Roberts was, however, misplaced, as it is easily distinguishable based on the timing of the filings. Additionally, as explained above, cases from this Court establish that a party’s simultaneous filing of a pre-answer motion with a motion to compel arbitration does not constitute a waiver. Furthermore, the Fifth District itself expressly distinguished R.W. Roberts on facts similar to the facts in the instant case by finding that the simultaneous filing of a motion to dismiss with a motion to compel arbitration is not inconsistent with the right to compel arbitration. Duckworth v. Plant, 697 So.2d 1257, 1259 (Fla. 5th DCA 1997).

Truly Nolen has not taken a position inconsistent with its right to compel arbitration at any point in the underlying litigation, and therefore, the trial court erred by finding that it had waived that right. We express no opinion on the validity of the arbitration agreement, which still remains to be resolved by the trial court.

Reversed and remanded.


author: GROSS, J.

text:
    Keith LINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-931.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Keith Lines appeals his convictions for first degree murder and attempted first degree murder. We affirm and write briefly to address one issue, the denial of Lines’s motion for severance.

The State’s theory of the case was that Lines and his girlfriend were feuding with twin brothers, Anthony and Andre Combs. According to the State, Lines, accompanied by his co-defendant and two others, drove to the twins’ house. Lines and the co-defendant got out of the car and opened fire, nearly hitting two persons and killing Ricardo Oro with a shot fired from the co-defendant’s gun. Upon being arrested, Lines named the co-defendant as the shooter during a conversation recorded by the police. Lines’s theory of defense was that the co-defendant acted independently in the murder of Oro, and there was a lack of evidence as to Lines’s involvement in the other two counts. The co-defendant took the position that he never exited the vehicle and was not involved in the incident.

Lines filed a motion to sever. In his motion to sever, Lines argued that his own statements were not admissible against the co-defendant and ‘protective editing’ would prejudice [his] defense of consistently and truthfully blame-shifting the shooting of the decedent[ ] to the co-defendant.” He further argued that their defenses were antagonistic and mutually exclusive, and severance was necessary to ensure Lines was not prejudiced. He urged that severance was constitutionally required because, if not severed, Lines would have to face two accusers: the State and his co-defendant.

The State subsequently filed notice that it did not intend to offer Lines’s post-arrest statements implicating the co-defendant, if the defendants were not severed. The circuit court denied the motion to sever.

We find no abuse of discretion in the circuit court’s ruling. See Williams v. State, 567 So.2d 9, 9 (Fla. 4th DCA 1990) (citing Hanks v. State, 305 So.2d 817 (Fla. 3d DCA 1974)) (stating standard of review); see also Fla. R. Crim P. 3.152(b) (governing severance); Rimmer v. State, 59 So.3d 763, 788 (Fla.2010).

“[T]he object of the severance rule is not to provide defendants with an absolute right of severance when requested, when they blame each other for the crime, but to assure each of them of a fair determination of his guilt or innocence.” Biscardi v. State, 511 So.2d 575, 578 (Fla. 4th DCA 1987) (citing O’Callaghan v. State, 429 So.2d 691, 695 (Fla.1983)). The determination of whether to sever is made on a case by case basis. Id. at 579. “The fact ... that there is hostility between the defendants, or that one tries to blame the offense entirely on the other, does not in itself require severance.” Id. (citation omitted); see also Victorino v.State, 23 So.3d 87, 97 (Fla.2009) (“[The defendant] is not entitled to severance simply because his codefendants are shifting the blame onto him.”).

Lines contends that Crum v. State, 398 So.2d 810, 810-12 (Fla.1981), required a severance. He argues that, like the defendant in Crum, he was “forced ... to stand trial before two accusers: the State and his codefendant.” Id. at 811-12. However, unlike this case, the linchpin in Crum was that the defendant was blindsided by a co-defendant’s antagonistic defense, which did not arise until after jeopardy had attached.

In Crum, the defendant was not aware “until after the jury was sworn in” that his co-defendant planned to testify that the defendant murdered the victim. Id. at 811. Before trial, the defendant obtained a statement from the co-defendant consistent with his version of the incident. Id. However, the defendant learned on the morning of trial that his co-defendant “would accuse him of singularly committing the murder for which the two of them were charged.” Id. Under these circumstances, the Supreme Court found that the defendant was denied a fair trial. Id. at 812.

As the Supreme Court explained in McCray v. State, 416 So.2d 804 (Fla.1982), the issue in Crum was not simply that the co-defendants’ theories of defense were antagonistic:

The problem was that one codefendant induced the other to believe that their defenses would be completely consistent and then, after jeopardy attached, decided to change his story, thereby prejudicing the proper preparation of the case for trial. The circumstances would have been different had there been no prior statement or had there been sufficient notice before trial of the change in [the co-defendant’s] position.

Id. at 807.

Unlike the defendant in Crum, Lines knew before trial that his defense conflicted with that of the co-defendant. The evidence was presented in a way that the jury could distinguish between each defendant’s conduct and then apply the law to each defendant separately. The jury acquitted Lines of one attempted first degree murder charge while finding the co-defendant guilty; the jury convicted Lines of a separate attempted first degree murder count, while finding the co-defendant not guilty. Thus, the “evidence was not too complex for the jury to apply it to each individual defendant.” Gordon v. State, 868 So.2d 1215, 1223 (Fla.2003). Also, Lines “had a full opportunity to confront and cross-examine each of the witnesses against him.” Id. This was not a case where a co-defendant’s statement was offered in evidence or, as Lines feared, his own statement was edited in a way that strangled meaning.

This case falls within the Supreme Court’s observations in McCray:

[T]he fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. Nor is hostility among defendants, or an attempt by one defendant to escape punishment by throwing the blame on a codefendant, a sufficient reason, by itself, to require severance. If the defendants engage in a swearing match as to who did what, the jury should resolve the conflicts and determine the truth of the matter.

416 So.2d at 806 (internal citations omitted).

We have fully considered the remaining issue and find no error.

Affirmed.

GERBER and CONNER, JJ., concur.


text:
    Adam Justin STEELE, Appellant, v. Charity Noel LOVE, Appellee.
    No. 4D12-3507.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Rehearing Denied Aug. 27, 2014.

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Martin L. Haines, III of Martin L. Haines, III, Chartered, Lake Park, for appellee.
   MAY, J.

A former husband appeals a final judgment of dissolution. The former wife cross-appeals. We affirm on all issues in both the appeal and cross-appeal, but write to address the imputation of income to each of the parties.

On the direct appeal, the former husband argues the trial court erred in using the amount of money he receives from his parents to impute income to him. We review imputation of income for child support purposes based on whether it is supported by competent, substantial evidence. Brown v. Cannady-Brown, 954 So.2d 1206,1207 (Fla. 4th DCA 2007). We find the trial court’s imputation of income was supported by competent, substantial evidence.

Section 61.30(2)(a)(13), Florida Statutes (2012), specifically lists “[Reimbursed expenses or in kind payments to the extent that they reduce living expenses” as gross income to be considered in determining child support. Generally, gifts received from a party’s parents are irrelevant for child support determination. Vorcheimer v. Vorcheimer, 780 So.2d 1018, 1019 (Fla. 4th DCA 2001) (citing Shiveley v. Shiveley, 635 So.2d 1021 (Fla. 1st DCA 1994)). However, regular periodic payments to a child by a parent are considered income for child-support determination. Ordini v. Ordini, 701 So.2d 663, 666 (Fla. 4th DCA 1997) (citing Cooper v. Kahn, 696 So.2d 1186 (Fla. 3d DCA 1997)).

Here, the former husband was unemployed but was starting a business that had not yielded any income. His parents paid for his living expenses for the nineteen months between the filing of the petition for dissolution of marriage and the trial. In the former husband’s first financial affidavit, he listed $3,000 in recurring monthly income from his parents. He confirmed this income in a later deposition. On the day of trial, the former husband filed an amended financial affidavit, attesting that he receives $2,600 in non-permanent recurring monthly income from his parents.

While the former husband’s father testified that he may not be able to continue these payments indefinitely, he and his wife would continue to support his son as long as they could. They wanted to insure their son and granddaughter were healthy and happy, and had a safe and secure environment in which to live. The evidence therefore supported the trial court’s imputation of $2,600 in income to the former husband.

The former husband next argues that the trial court erred in its imputation of income to the former wife. Specifically, he argues that the court erred in imputing a minimum-wage hourly rate for forty hours of work per week because, although she works only part-time, the former wife’s actual hourly rate of compensation was higher than minimum wage. The former husband also argues that the court omitted significant, regular income the former wife receives from other family-owned companies. The former wife agrees that she receives $450 monthly interest income, which the trial court did not consider, but disputes any other consistent income. She argues that the amount of imputed income is actually slightly higher than her actual income, including the monthly $450.

In determining child support, a court “may only impute a level of income supported by the evidence of ... probable earnings based on,” among other things, the history of income. Alich v. Clapp, 926 So.2d 467, 468 (Fla. 4th DCA 2006) (citing Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005)). The court’s determination must be supported by competent, substantial evidence, not “outdated income figures.” Id. (citing § 61.30(2)(b), Fla. Stat. (2001), and Wendel v. Wendel, 852 So.2d 277, 284 (Fla. 2d DCA 2003)).

Here, the former wife worked at a school every other week. The court found that the former wife had not worked full-time since the parties separated because she had custody of their child every other week. The former husband failed to establish that she was voluntarily underemployed. Based on her part-time work schedule and the $450 monthly interest income, her actual monthly income is nineteen dollars less than the income imputed to her by the court. While there may have been a technical error in the court’s imputation of income to the former wife, the error was favorable to the former husband and is of such a negligible amount that we affirm.

Affirmed.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . We find no error in the court's refusal to impute additional income to the former wife from other family-owned businesses. The testimony reflected income in 2009, 2010, and 2011, but no evidence that the former wife would continue to receive that income in the future.