author: MORRIS, Judge.

text:
    John P. HARLLEE IV and Scott A. Harllee, as trustee of the Scott A. Harllee Revocable Trust, Appellants, v. Joseph G. PROCACCI, Appellee.
    No. 2D13-5409.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.
    Rehearing Denied Jan. 9, 2015.

      Monterey Campbell, Kristie Hatcher-Bolin, and William Roberts of Grayrobin-son, P.A. Lakeland, for Appellants.
    Jeffrey D. Fridkin and Michael T. Trafi-cante of Grant Fridkin Pearson, P.A., Naples, for Appellee.
   MORRIS, Judge.

■ John P. Harllee IV and Scott A. Harllee, as trustee of the Scott A. Harllee Revocable Trust, appeal a final summary judgment entered against them in their action for restitution against Joseph G. Procacci. •The Harllees argue that the trial court erred in ruling that the doctrine of res judicata and the rule against splitting causes of action prevented the Harllees from bringing a restitution action against Procacci. We agree and reverse the decision of the trial court.

I. Facts

The Harllees and Procacci were shareholders in Harllee Packing, Inc. In 2006, the Harllees filed an action against Procac-ci for specific performance of the shareholder agreement, claiming that Procacci had received a bona fide offer from a third party to purchase 760 shares in the company from Procacci; that the Harllees wished to exercise their right under the agreement to purchase those shares; and that Procacci refused to sell the shares to the Harllees as required by the agreement. In 2008, the trial court ruled in favor of the Harllees and required Procac-ci to sell the shares to the Harllees. Pro-cacci appealed the final judgment, and this court affirmed the final judgment in 2009. The Harllees then filed a motion for supplemental relief in that first action, claiming that Procacci owed the Harllees $396,000 in proceeds from a dividend distribution made on the shares by the company in 2007, after the Harllees had asserted their right to purchase those shares from Procacci. The trial court denied the Harllees’ motion for supplemental relief, and this court per curiam affirmed the trial court’s denial in 2010.

In 2011, the Harllees filed a second action against Procacci for restitution, claiming that Procacci was unjustly enriched by accepting the dividend distribution in 2007 when he knew that the Harllees were claiming equitable and legal ownership of the shares and that the ownership rights had not yet been determined. The Harl-lees alleged that Procacci should have placed the shares in escrow pending the judicial determination of ownership. Pro-cacci moved for summary judgment, arguing that the Harllees’ claim for restitution was barred by res judicata and the rule against splitting causes of action. The trial court agreed with Procacci and entered a final summary judgment against the Harllees, which the Harllees now appeal.

II. Analysis

On appeal, .the Harllees argue that the rule against splitting causes of action does not bar their action for restitution against Procacci because the claim was not viable until a judicial determination had been made regarding their right to purchase the shares and they tendered the payment for the shares. The rule against splitting causes of action “‘requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.’” Tyson v. Viacom, Inc., 890 So.2d 1205, 1210-11 (Fla. 4th DCA 2005) (emphasis omitted) (quoting Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999)). But “under the rule against splitting a cause of action, a new claim for damages is not barred if the underlying cause of action had not accrued at the time of filing the previous lawsuit.” Gilbert v. Fla. Power & Light Co., 981 So.2d 609, 614 (Fla. 4th DCA 2008). “The rule does not require the joinder of a cause of action that is not ‘available’ because it has not accrued with a cause of action that has accrued.” Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36, 47 n. 7 (Fla.2009).

The Harllees’ first action was based on Procacci’s refusal to sell his shares to the Harllees when he received a bona fide offer from a third party, in violation of the terms of the shareholder agreement, whereas the Harllees’ second action was based on Procacci’s retention of the 2007 dividends paid on those shares by the company. The two actions are based on two different acts by Procacci. See Scovell v. Delco Oil Co., 798 So.2d 844, 846 (Fla. 5th DCA 2001) (holding that “the failure to install the new petroleum lines which led to the [first] eviction [action] was an act separate from the subsequent failure to remove the petroleum equipment” which led to the second action for breach of lease and damages).

Moreover, the Harllees’ second action had not yet accrued in 2006 when the Harllees filed their first action against Procacci. See Gilbert, 981 So.2d at 6Í4 (holding that claims against power company for damages caused by noise from transformer and its subsequent removal had not accrued at the time plaintiffs filed first action against power company to move transformer); see also Olesh v. Greenberg, 138 So.3d 561, 562 (Fla. 5th DCA 2014) (relying on Gilbert and holding that “[t]he claims raised in the instant complaint” were not barred because they “had not yet accrued when the [first] action was filed”). The Harllees’ second action did not accrue until Procacci received the dividends paid on those shares and withheld them from the Harllees and a final judicial determination had been made regarding the Harllees’ rights to purchase those shares. Until the final judgment in the first action was affirmed on appeal, it was possible that the Harllees did not have a right to purchase the shares and therefore did not have a right to the 2007 dividends it now seeks in the second action. See Larson & Larson, P.A., 22 So.3d at 47-48 (holding that claim for legal malpractice based on a sanctions judgment entered against client did not accrue until the sanctions litigation was settled because “[ujntil then, it was possible that an appeal in the sanctions litigation would produce an outcome favorable to [the client]”); Cazares v. Church of Scientology of Cal., Inc., 444 So.2d 442, 447 (Fla. 5th DCA 1983) (holding that party’s claim for malicious prosecution did not accrue until appeal was concluded in that party’s favor in the underlying prosecution). We note that in this case, the application of the rule against splitting causes of action would serve no purpose but to convenience Pro-cacci, the alleged wrongdoer. See Rosenthal v. Scott, 150 So.2d 433, 439 (Fla.1961) (noting that the “[t]he underlying reason for the rule against splitting a cause of action is salutary” and that the rule “should not be declared rigid, inflexible and inexorable when such declaration would in many, many instances, for the sake only of convenience to a putative wrongdoer, defeat the ends of justice”).

Even though the Harllees did not impermissibly split their causes of action, we must separately consider their argument that the doctrine of res judicata does not apply because there had been no prior judicial consideration of the Harllees’ restitution claim. See Tyson, 890 So.2d at 1211 (“Res judicata and impermissible splitting of causes of action are not interchangeable concepts barring the bringing of claims.... [T]he rule against splitting causes of action is only an aspect of res judicata....”). “The doctrine of res judi-cata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004).

While the third and fourth identities listed above are present in both actions, the first and second identities are not present in both actions. In the first action, the thing sued for was the right to purchase the shares, while in the second action, the thing being sued for is the amount of the dividends paid on those shares in 2007 and withheld by Procacci. In addition, the cause of action in the first action was for violation of the shareholder agreement based on Procacci’s refusal to sell the shares to the Harllees. In the second action, the cause of action is for restitution to recover the dividends paid on the shares and withheld by Procacci. The facts and evidence that are necessary to prove the restitution action are different than the facts and evidence that were necessary to prove the claim for violation of the shareholder agreement. See Smith v. Time Customer Servs., 132 So.3d 841, 844 (Fla. 1st DCA 2013) (“The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” (citing Gordon v. Gordon, 59 So.2d 40, 40 (Fla.1952))); Gilbert, 981 So.2d at 614 (holding that the facts necessary to prove injunction and claim for damages are different and therefore “[t]he two complaints ... d[id] not meet the required identities of the thing sued for and cause of action that must be established for res judicata”).

Procacci argues that the Harllees’ restitution claim is barred by res judicata because it could have been raised in the first action before the trial in that action took place. See Gordon, 59 So.2d at 44 (“[U]nder res adjudicata a final decree of judgment bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised .... ” (emphasis added)). But a claim is not‘barred by res judicata simply because it could have been raised in the first action if it does not otherwise meet the four identities required by the doctrine. Cf. Livingston v. Frank, 150 So.3d 239, 39 Fla. L. Weekly D1577 (Fla. 2d DCA July 30, 2014) (holding that res judicata barred landowner’s action for interest earned on funds deposited into court registry by the city in earlier eminent domain case because interest was an issue that was framed by the pleadings in the eminent domain case and could have been litigated with the full compensation issues in that first case); Jasser v. Saadeh, 103 So.3d 982, 983-85 (Fla. 4th DCA 2012) (holding that action by children, in their capacity as trustees, to determine the validity of the trust was barred by res judica-ta because it could have been raised in the first action in which the children sought a declaratory judgment as to the validity of the trust and all four identities of res judicata were present in both actions).

Because the doctrine of res judicata and the rule against splitting causes of actions do not apply in this case, the trial court erred in entering summary judgment in favor of Procacci on the Harllees’ claim for restitution. Accordingly, we reverse the the final summary judgment and remand for further proceedings.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Persio LIRIANO and Angie Rosa, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCATION, Appellee.
    No. 5D14-1618.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 2014.
    Rehearing Denied Jan. 21, 2015.
    Persio Liriano and Angie Rosa, Orlando, pro se.
    Heidi Milan Caballero and Christopher P. Hahn, of McGinnis Wutscher Beiramee LLP, Fort Lauderdale, for Appellee.
   PER CURIAM.

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

TORPY, C.J., SAWAYA and COHEN, JJ., concur.


text:
    Jerry GALLION, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2905.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Rehearing Denied Jan. 28, 2015.

      Jerry Gallion, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jerry Gallion, appeals an order denying his postconviction relief motion which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We find no error in the trial court’s denial of relief as to Grounds 1, 3, and 6 following an evidentiary hearing. However, because the trial court summarily denied Grounds 2, 4, 5, 7, 8, and 9 without attaching portions of the record conclusively refuting the claims, a fact acknowledged by the State, we reverse and remand with instructions that the court either attach such portions of the record or hold an evidentia-ry hearing on the claims. See Wainwright v. State, 896 So.2d 695, 698 (Fla.2004) (noting that a defendant is entitled to an evi-dentiary hearing on a postconviction relief claim unless the motion and record conclusively show that he or she is entitled to no relief or where the claim is legally insufficient); Simmons v. State, 66 So.3d 327, 327-28 (Fla. 1st DCA 2011) (reversing for record attachments or for an evidentiary hearing where the trial court failed to assemble a record from which it could be conclusively determined that the appellant was not entitled to any relief on his facially sufficient rule 3.850 claim); Washington v. State, 10 So.3d 1126, 1127 (Fla. 1st DCA 2009) (“If the postconviction defendant’s claims are legally sufficient, the trial court must attach portions of the record that conclusively refute the claims.”).

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

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Eugene JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5336.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2014.
    Rehearing Denied Jan. 28, 2015.
    Eugene Jackson, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, MARSTILLER, and OSTERHAUS, JJ„ concur.


author: BENTON, J.

text:
    Terry L. CASE and Elizabeth R. Case, as Personal Representatives of the Estate of Catherine E. Case, Appellants, v. Andrews B. NEWMAN, an individual, Dolphus B. Newman, an individual, Donald Newman, an individual, and Shreejee Ni Pedhi’s Inc., a Florida Corporation, d/b/a Bombay Liquors and Ravindu Patel, Appellees.
    No. 1D13-5856.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2014.
    Rehearing Denied Jan. 29, 2015.

      J. Michael Lindell and D. Brad Hughes of Lindell & Farson, P.A., Jacksonville, for Appellants.
    David C. Knapp of McDonald, Toole, Wiggins, P.A., Orlando, for Appellees Shreejee Ni Pedhi’s Inc., a Florida Corporation, d/b/a Bombay Liquors and Ravindu Patel.
   BENTON, J.

As personal representatives of the Estate of Catherine E. Case, Terry L. and Elizabeth R. Case appeal summary final judgment entered in favor of Shreejee Ni Pedhi’s, Inc. d/b/a Bombay Liquors and Ravindu Patel (the vendor defendants). They contend evidence of record was enough for a jury to find that the vendor defendants willfully and unlawfully sold alcohol to the underage driver involved, while intoxicated, in the automobile accident that killed Catherine. We reverse the judgment, reverse the order denying leave to file an amended complaint to add a claim for punitive damages, and remand for further proceedings.

Pertinent to the present appeal, appellants alleged that Mr. Patel (as co-owner of Bombay and a cashier) sold alcohol to Andrews on several occasions without requiring proof of age, Andrews’ youthful appearance notwithstanding, including on the night of the fatal accident. Count V alleged that the vendor defendants willfully and unlawfully sold alcohol to Andrews when Mr. Patel knew or should have known that Andrews was underage. Based on the same underlying factual allegations, count VI alleged that the willful and unlawful sale of alcohol to Andrews constituted negligence per se, because willful sales to underage purchasers violate a statute on the subject.

The appellants subsequently moved to amend the complaint to include a claim for punitive damages against the vendor defendants. The vendor defendants opposed this motion and moved for summary judgment in turn, arguing the appellants could not make out a prima facie case of any violation of section 768.125. Section 768.125, Florida Statutes (2010), provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

A “willful” sale or furnishing of alcoholic beverages to a person not of lawful drinking age requires “knowledge that the recipient is not of lawful drinking age .... [which] may be proved by direct evidence of actual knowledge or such knowledge may be established by circumstantial evidence.” Willis v. Strickland, 436 So.2d 1011, 1012 (Fla. 5th DCA 1983).

On deposition, Andrews had testified that he never informed anyone at Bombay Liquors that he was underage, and that Mr. Patel believed he was older, because he acted and spoke as if he were older. Arguing for summary judgment, the vendor defendants contended that, because there was no evidence that Andrews’ appearance at the time of the alleged purchase was other than “older,” as he had testified in his deposition, there was no evidence that Mr. Patel knew or should have known that he was selling alcohol to a minor, and therefore no proof of the element of willfulness. The vendor defendants also maintained below, as they argue here, that, if the appellants could not prove a willful sale of alcohol to Andrews, they could not meet the heightened burden required to recover punitive damages.

Persuaded, the learned trial judge denied the motion for leave to amend the complaint to add a claim for punitive damages, and entered final summary judgment against the plaintiffs. The trial court ruled there was no evidence of a willful sale because there was no evidence describing Andrews’ appearance “at the time of the incident,” other than the minor’s “own testimony, in which he describes the steps he took to look older, and in which he states that the cashier, in fact thought he was older.” In fact, there were also photographs of record, albeit none taken on the day of the alleged sale.

We review orders granting summary judgment de novo. See Dianne v. Wingate, 84 So.3d 427, 429 (Fla. 1st DCA 2012). “Our task is to determine whether, after reviewing every inference in favor of [a]ppellants as the non-moving party, no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.” Id. Summary judgment may not be granted if there is even the slightest doubt that material factual issues remain. See Alpha Data Carp. v. HX5, L.L.C., 139 So.3d 907, 910 (Fla. 1st DCA 2013). See also Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008) (“‘If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.’ ” (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985))). The material fact at issue here is whether Mr. Patel knew, or should have known, Andrews was underage when he allegedly sold him a bottle of Lord Calvert.

Circumstantial evidence of knowledge of the age of a person “may consist of facts relating to the apparent age of a person. The appearance of a person alone can impart knowledge of his or her age within certain ranges and to certain degrees of certainty. Whether it does or not in a particular instance, and to what extent, would normally be a question of fact for the jury to determine.” Willis, 436 So.2d at 1012-13. See also Gorman v. Albertson’s, Inc., 519 So.2d 1119, 1120 (Fla. 2d DCA 1988) (“Although at this point there is no direct evidence of the state of mind of the clerk who allegedly sold the alcoholic beverages to Kimbrell, knowledge that a purchaser of alcoholic beverages is not of lawful drinking age may be established by circumstantial evidence relating to the apparent age of the person”). “Furthermore, whether in a particular instance the person’s appearance alone imparted such knowledge, and to what extent, is normally a question of fact for the jury to determine. See Willis.” Id.

In contrast to the situation in Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064, 1067 (Fla. 5th DCA 1995), where the evidence indicated the minor had gone to “considerable effort to appear older,” in the present case Andrews testified only that Mr. Patel thought he was older because: “I talked older and I can communicate and I can talk — talk the bull with them.” He clarified that when he said he “talked older” he meant that he spoke with a southern accent. The only other description Andrews gave regarding his appearance when, he said, he purchased alcohol the night of the accident was that he wore a white [base]ball cap. Wearing a baseball cap and “talking] the bull” using a southern accent do not, as a matter of law, render the purchaser’s otherwise youthful appearance immaterial. When asked if he ever tricked Mr. Patel in any way regarding his age or lied to Mr. Patel about his age, moreover, Andrews answered “No, sir.”

The trial court relied on Tuttle v. Miami Dolphins, Ltd., 551 So.2d 477 (Fla. 3d DCA 1988), where the complaint alleged that Guy Tuttle, then seventeen, became intoxicated consuming beer he purchased at a football game from vendors who failed to ask for proof of age, and was injured as a result. The defendants argued the absence of proof of willful sales to a minor entitled them to a directed verdict, and the Third District agreed: “At trial, ... Guy failed to present evidence about his physical appearance at the time of the incident, six years earlier. It was therefore impossible for the jury to determine whether he looked younger than the statutory age so that the sale to a minor was, under the circumstances, ‘willful.’ ” Id. at 481.

In contrast, in the present case, in opposition to the motion for summary judgment, the appellants relied on photographs of Andrews taken around the time of the accident. Both Andrews and Andrews’ grandfather “admitted” (in response to requests for admission before they were dismissed as parties) that the photographs “fairly and accurately depict Andrews Newman’s physical appearance during the 2010-2011 school year and leading up to the subject accident on March 12, 2011.” A friend of Andrews agreed, moreover, during her deposition, that the pictures “fairly reflect the way he looked back then.” The record also contains the “booking” photograph of Andrews, taken June 29, 2011. (Andrews is now serving a prison sentence for his part in the accident.)

In contradistinction .to Tuttle, the jury in the present case can determine — based on photographs of Andrews taken some months before the accident and approximately three months after the accident— whether he looked younger than the statutory age on the day of the accident, so that the alleged sale of alcohol to a minor was “willful.” That there was no proffer of a photograph taken the very day of the alleged sale and accident did not make summary judgment appropriate. See id. • at 483, 483 n. 5 (Pearson, J., concurring) (“[T]he jury was called upon to conclude solely from Tuttle’s appearance at age 23-1/2 that he had appeared younger than 19 when he bought the beer from the vendor six years earlier.... Of course, a picture depicting Guy Tuttle near the time of the accident might very well have overcome the deficiency. None was presented.”).

Mr. Patel testified on deposition that he asked for identification from anyone who looked to be under the age of 30 (unless it was someone he had previously asked to provide identification). Yet Andrews testified that he probably first purchased alcohol at Bombay Liquors during May of 2010, when he was sixteen years old, and that Mr. Patel never asked him for identification or asked his age, and that he had never had or displayed a “fake ID.” In sum, record evidence raises a genuine issue as to whether Mr. Patel knew or should have known he was selling alcohol to a minor.

The trial court also erred in denying the appellants’ motion for leave to file an amended complaint to add a claim for punitive damages. Section 768.72, Florida Statutes (2014), provides in part:

(1)In any civil action, no claim for punitive damages shall be permitted unless there. is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages ....
(2) A defendant may be held liable for punitive damages only if the trier of fact, • based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
(3) In the case of [a] corporation, ... punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
(a) The ... corporation ... actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the ... corporation ... knowingly condoned, ratified, or consented to such conduct; or
(c) The ... corporation ... engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

“In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party.” Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock Joint Venture, L.P., 16 So.3d 1006, 1009 (Fla. 1st DCA 2009).

Just as there was sufficient evidence on the issue of willfulness of the alleged sale of alcohol to a minor to withstand a motion for summary judgment on the main claim, there was sufficient evidence of “a reasonable basis for recovery” of punitive damages to submit to a jury the issue of punitive damages.

Reversed and remanded.

VAN NORTWICK and CLARK, JJ., concur.

      . Specifically alleging Catherine’s wrongful death in a collision with a vehicle driven by Andrews Newman, then seventeen years old, the appellants named as defendants Andrews Newman, his father, and his grandfather (the owner of the vehicle Andrews drove), along with the vendor defendants. The appellants have since entered into separate settlement agreements with the minor driver, his father, and his grandfather.

      . See § 562.1 l(l)(a)l„ Fla. Stat. (2010) (“It is unlawful for any person to sell ... alcoholic beverages to a person under 21 years of age-A person who violates this subpara-graph commits a misdemeanor of the second degree....").
      Count V and Count VI are at best redundant. See Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064, 1066 (Fla. 5th DCA 1995) (rejecting the plaintiff’s argument that a cause of action for negligence against a vendor for sale of alcohol to a minor continues to exist in Florida and noting that the statement in Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1047-48 (Fla.1991) — “that, although limited by the provisions of section 768.125, there is a cause of action against a vendor for the negligent sale of alcoholic beverages to a minor” [and once the elements of the criminal offense in section 562.1 l(l)(a), Florida Statutes "have been proven, the plaintiff has established negligence per se”] — "is dictum because Ellis did not concern the sale of alcohol to a minor” and "the statutory limitation ... expressly limits a vendor’s liability ... to a 'willful and unlawful' sale and not merely a negligent one”). We do not hold otherwise, and it may be appropriate to strike Count VI as surplus-age on remand.

      . The vendor defendants also asserted that Florida no longer recognizes negligence per se with regard to the sale of alcohol to a minor. See ante n. 2.

      . Our sister court's decision in Austin, relied on-by the trial court, is distinguishable. In Austin, Publix argued on appeal that the trial court erred in denying its motion for summary judgment on the issue of the willfulness of its sale of alcohol to the minor involved there. In the absence of evidence that the unidentified cashier had actual knowledge of the minor's age, the question became “whether there was any circumstantial evidence surrounding the sale which could give rise to an attribution of constructive knowledge on the part of Publix.” Id. at 1067.
      The district court said "[t]he only such admissible evidence at the time of the summary judgment hearing, according to Publix, affirmatively indicated that Austin did not appear to be a minor — indeed, he had gone . to considerable effort to appear older and had successfully purchased beer from several establishments. In fact, Austin testified in his deposition that he had purchased beer for several of his friends because of his more mature appearance. There was no other evidence in the record to indicate that it was a willful sale by the unknown cashier.” Id. The court concluded "there was no evidence before the trial court at the time of summary judgment hearing indicating that Austin’s appearance at the time of purchase was anything other than that indicated in his deposition — i.e., that he did not appear to be a minor at that time." Id. Because the plaintiff "failed to come forward at the time of summary judgment with any counter evidence sufficient to reveal a genuine issue in regard to the willfulness of the sale," the district court held the trial court should have granted the motion by Publix for summary judgment. Id. at 1068.
      In the present case, photographs of Andrews taken before and after the accident and within some three months of the' accident were part of the record. In further contrast to Austin, where the minor testified he had successfully purchased beer from several establishments and had purchased beer for several of his friends because of his more mature appearance, Andrews testified, "Nowhere else would sell me alcohol. I tried every liquor store in Middleburg.” Andrews also testified the clerk of a different store where he had purchased beer during this same period probably knew he was underage, even though he never told him.

      . Attached to appellants’ requests for admission and to the deposition of the driver’s friend are what appear to be two identical photographs of Andrews, with the exception that one photograph has "09-10” written in the upper left comer and the driver’s first name written in the lower right corner.
      During the hearing on the motion for summary judgment, counsel for the parties disagreed regarding the meaning of "09-10.” Counsel for vendor defendants argued this established the picture was taken during the 2009-2010 school year, a year before the accident. Counsel for appellants argued it indicated the picture was taken sometime during September of 2010. The trial court then stated "the picture 09-10 would be for the September '09 to May '10 school year,” and the accident occurred "two months before the end of the school year in 'll.” No evidence, however, was presented regarding the date the picture was taken.

      . In Ingram v. Pettit, 340 So.2d 922, 924 (Fla. 1976), the supreme court said that “courts and the Legislature have evolved the notion that drunk drivers menace the public safety and are to be discouraged by punishment. ... In line with that policy, therefore, we hold that juries may award punitive damages where voluntary intoxication is involved in an automobile accident in Florida.... We affirmatively hold that the voluntary act of driving 'while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages." Similarly, the legislature has now determined that selling alcoholic beverages to a person under twenty-one years of age presents a danger to public safety and should be punished as a crime. See §§ 562.11 (1 )(a) 1. & 562.11(l)(b), Fla. Stat. (2014).


text:
    Lee J. MAHER, Petitioner, v. BANK OF AMERICA, Respondent.
    No. 1D14-4218.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2014.
    Rehearing Denied Jan. 28, 2015.
    A. Brian Phillips of A. Brian Phillips, P.A., Orlando, for Petitioner.
    John N. Muratides of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tampa, for Respondent.
   PER CURIAM.

DENIED. See American Funding, Ltd. v. Hill, 402 So.2d 1369 (Fla. 1st DCA 1981).

THOMAS, ROWE, and OSTERHAUS, JJ., concur.


author: SWANSON, J.

text:
    John Gordon KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3182.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2014.
    Rehearing Denied Jan. 29, 2015.

      Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, and Bryan E. De-Maggio of Sheppard, White & Kachergus, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this appeal from his conviction and sentence for two counts of possession of child pornography, appellant asserts the trial- court committed reversible error in denying three suppression motions. The first motion sought to suppress all evidence seized as a result of the extra-jurisdictional investigation and search of appellant’s home computer located in Atlantic Beach by Detective Camille Burban of the Neptune Beach Police Department. The second motion claimed the warrant authorizing the search of appellant’s home computer was overbroad because it did not state with particularity the areas of the computer to be searched. The third motion claimed the execution of the search warrant was unreasonable because the forensic examination of appellant’s computer was not completed until over six months after the seizure of the computer. We affirm the denial of the second and third motions without discussion. For the reasons that follow, we also affirm the denial of the first motion.

At the suppression hearing, Detective Camille Burban of the Neptune Beach Police Department testified that she had pri- or experience investigating sex crimes and child pornography as a member of the Internet Crimes Against Children (ICAC) Task Force for Northeast Florida. In 2009, she used a program called the Wyoming Tool Kit to search for people who were sharing known child pornography on peer-to-peer networks. A peer-to-peer network was a software program that one could download onto a computer to allow the user to share files with other people who were connected to the same network. Known child pornography consisted of files identified by the National Center for Missing and Exploited Children or the Wyoming ICAC Task Force as depicting real child victims. Just as every person had a fingerprint, every picture of known child pornography had an SHA value, which was recognized by the software Burban had running in her office. When the program identified a peer-to-peer network trading an SHA value linked to known child pornography, it logged the IP address (the number identifying the location where the computer was hooked up to the Internet), the name of the file containing the known child pornography, and the date the file in question was shared. In this case, the program logged an IP address that was from Comcast with the latest sharing occurring on August 6, 2009. Burban subpoenaed Comcast and determined that the IP address was registered to a residence in Atlantic Beach.

Burban then called Detective Chris Pe-gram of the Atlantic Beach Police Department and told him that she obtained a hit on her computer for a residence in Pe-gram’s jurisdiction. When she asked if he wanted to give it to the ICAC Task Force for Northeast Florida or handle it himself, Pegram responded that he wanted the case, but asked for her assistance because the Atlantic Beach Police Department did not have the necessary training or experience. At that time, there was a mutual aid agreement between both police departments. She and Detective Pegram began researching who lived at the address in question and applied for a search warrant. Burban believed there was probable cause to search the address because of the SHA value, which was similar to a digital fingerprint for the photograph. She downloaded the photograph to make sure it was child pornography and had not been deleted. She typed up the search warrant and presented it to the magistrate, who signed and issued it. She, Detective Pegram, and other officers executed the search warrant on September-9, 2009. Appellant and his seventeen-year-old stepson were present at the time. She explained to appellant that she was there to investigate a computer crime and needed to talk to each person in the house. Appellant was absolutely cooperative. She learned that there were two computers in the house, a laptop for the family and a desktop computer in the bedroom. Appellant confessed that he had downloaded child pornography onto the desktop computer in the bedroom. She took the desktop computer and left a copy of the warrant with appellant.

After the trial court denied appellant’s motions to suppress, appellant entered a negotiated plea of no contest to two counts of possession of child pornography while reserving the right to appeal the denial of his dispositive motions to suppress. Pursuant to the plea agreement, appellant was adjudicated guilty and sentenced to three years in prison followed by two years of sex offender probation. This appeal followed.

Generally, municipal law enforcement officers can exercise their law enforcement powers only within the territorial limits of the municipality. Nunn v. State, 121 So.3d 566, 567 (Fla. 4th DCA 2013); State v. Griffis, 502 So.2d 1356, 1357 (Fla. 5th DCA 1987). One exception allows an officer to act outside of his or her jurisdiction if the subject matter of the investigation originates inside city limits. Nunn, 121 So.3d at 568; State v. Allen, 790 So.2d 1122, 1125 (Fla. 2d DCA 2001); State v. Price, 589 So.2d 1009, 1010 (Fla. 4th DCA 1991); Wilson v. State, 403 So.2d 982, 984 (Fla. 1st DCA 1980). Thus, the investigatory acts of an officer outside of his or her jurisdiction are not deemed unlawful if during the investigation the officer has a good faith belief that the crime occurred within his or her jurisdiction. Nunn, 121 So.3d at 568. Another exception applies if the officer acts in accordance with a voluntary cooperation agreement pursuant to section 23.121, Florida Statutes, or an interlocal agreement to provide law enforcement services pursuant to section 166.0495, Florida Statutes. Jarrett v. State, 926 So.2d 429 (Fla. 2d DCA 2006); Allen, 790 So.2d at 1125-26. When an officer unlawfully asserts official authority, either expressly or implicitly, to gain access to evidence, that evidence must be suppressed. State v. Phoenix, 428 So.2d 262, 266 (Fla. 4th DCA 1982), approved, 455 So.2d 1024 (Fla.1984).

Appellant claims the trial court erred in denying his motion to suppress evidence obtained in Atlantic Beach as a result of the extra-jurisdictional investigation by Detective Burban of the Neptune Beach Police Department. Specifically, appellant claims Burban acted outside her territorial jurisdiction when she utilized a computer program available only to law enforcement to investigate the contents of appellant’s computer that was located outside the. city limits of Neptune Beach. However, the state correctly responds that Burban’s investigation involved computer files appellant placed in folders that were shared over a peer-to-peer network. Because the child pornography present on appellant’s computer could be accessed over the Internet by way of appellant’s file-sharing program, appellant cannot argue that this portion of Burban’s investigation was outside her territorial jurisdiction. In fact, Burban did not know whether the source of the child pornography being shared over the Internet was located inside or outside her territorial jurisdiction.

However, once Burban subpoenaed the Internet provider and determined the IP address was registered to a residence in Atlantic Beach, it became clear any further investigation was outside Burban’s territorial jurisdiction unless one of the aforementioned exceptions applied. Burban recognized this when she contacted Detective Pegram of the Atlantic Beach Police Department, who asked for her assistance because the Atlantic Beach Police Department did not have the necessary training or experience. At that time, there was a mutual aid agreement between both police departments. She and Detective Pegram then obtained a search warrant, which they and other officers executed on appellant’s residence. Although appellant claims the mutual aid agreement did not allow Burban to continue her investigation outside the limits of Neptune Beach where the subject matter of the investigation did not originate inside the city limits of Neptune Beach, appellant’s position rests on the questionable notion that his possession of child pornography was confined to the city limits of Atlantic Beach. Because appellant placed the child pornography in a shared computer file that could be accessed over the Internet in neighboring Neptune Beach, Detective Pegram’s investigation originated inside the city of limits of Neptune Beach, and the mutual aid agreement between the Neptune Beach and Atlantic Beach Police Departments allowed her to continue that investigation under the auspices of the Atlantic Beach Police Department. Accordingly, the trial court properly denied appellant’s motion to suppress.

AFFIRMED.

LEWIS, C.J., and ROWE, J., concur.


text:
    James Anthony INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-230.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2014.
    James S. Purdy, Public Defender, and Robert J. Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See U.S. v. Leon, 468 U.S. 897 (1984).

LAWSON, LAMBERT, JJ., and JACOBUS, Senior Judge, concur.


author: NORTHCUTT, Judge.

text:
    Dwayne Edward MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4646.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Dwayne Martin appeals his convictions for aggravated battery and grand theft. We affirm the grand theft conviction without further comment, but we reverse the aggravated battery conviction and remand for a new trial.

The charges stemmed from the theft of three all-terrain vehicles (ATVs) and Martin’s subsequent encounter with Carl Wiggins, an acquaintance who had implicated him in the theft. Prior to the encounter, Martin was arrested and charged with grand theft, burglary, and criminal mischief. He later received discovery that included the owner’s report of the ATV theft and of Wiggins’ tip that Martin was involved. On the day Martin received the report in the mail, Wiggins happened to stop by the Martin house on his bicycle. Wiggins was unaware that the owner had reported his tip to the police or that Martin had a copy of the owner’s report.

Martin and Wiggins gave differing versions of what happened next. According to Wiggins, Martin attacked him and beat him. Wiggins said he was' able to get away on his bicycle, but when he arrived home he realized that he had been stabbed in the buttocks. He recalled seeing a knife in Martin’s hand but did not recall being stabbed. Martin, on the other hand, said that he confronted Wiggins and accused him of lying to the police. When Wiggins denied it, Martin showed him the theft victim’s report. He said that Wiggins became aggravated and took a swing at him. Martin admitted that he hit Wiggins but claimed he did so in self-defense. He denied wielding a knife in the fight. He posited that Wiggins’ injury may have occurred when he tripped and fell back onto his bike.

Martin was additionally charged with aggravated battery and tampering with a witness. The jury acquitted him of burglary, criminal mischief, and tampering with a witness, but it found him guilty of aggravated battery and grand theft. For the aggravated battery, he was sentenced to fifteen years in prison as a prison re-leasee reoffender; he received a concurrent five-year term for the grand theft.

Martin challenges his aggravated battery conviction based on a claim of fundamental error in the jury instructions. At trial and without objection, the trial court instructed the jury on the justifiable use of nondeadly force, stating in part as follows:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(Emphasis supplied.) This court has previously held that this portion of the instruction constituted fundamental error due to the comma that followed the phrase including deadly force. Talley v. State, 106 So.3d 1015 (Fla. 2d DCA), review denied, 116 So.3d 1263 (Fla.2013). The comma is not included in section 776.013(3), Florida Statutes (2012), which provides for this claim of self-defense. The comma has the effect of “indicating that a defendant has no duty to retreat and has the right to stand his ground and meet force with force only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.” Talley, 106 So.3d at 1017. The comma thus improperly changes the meaning of the self-defense statute. The First District has recognized the same problem but characterized it another way:

The problem with the instruction is not as much with the extra comma as it is with the inclusion of the language after the first comma, which pertains only to the use of deadly force and has no place in the instruction on justifiable use of non-deadly force. Where, as here, the defendant is only asserting the defense of justifiable use of non-deadly force, the instruction might be better stated by substituting a period for the first comma and omitting the remainder of the language [so that the correct instruction would read]: “A person who is not engaged in an unlawful activity and who is in a place where he or she has a right to be has no duty to retreat and has the right to meet force with force.”

Sims v. State, 140 So.3d 1000, 1005 n. 7 (Fla. 1st DCA 2014) (finding instruction to be error but not reversible because Sims was not entitled to the self-defense theory provided by section 776.013(3) and prosecutor did not rely on the erroneous portion in closing).

In Talley, the prosecutor relied on the erroneous interpretation by arguing in closing that “Even if you believe the fish tale that John Mullendore was coming at •[Talley], where was the great bodily harm or death that he was going to suffer? It didn’t happen. Or commission of a forcible felony, that wasn’t provided to you either.” 106 So.3d at 1017 (brackets in original). This court held that the prosecutor misled the jury by highlighting the erroneous portion of the instruction and that Talley’s right to a fair trial was prejudiced because justifiable use of nondeadly force was his only defense. Id. at 1017-18. Without the prosecutor’s reliance on the erroneous instruction, this court held that the error might have been harmless. Id. at 1017. Instead, it was fundamental. Id. at 1017-18.

Here, as well, the prosecutor relied on the mistake in the instruction by arguing in part that Martin “would have had to use that knife and stab Carl Wiggins to prevent death or great bodily harm himself, and he simply did not.” The State argues that Martin denied using a knife and, thus, did not rely solely on self-defense. But Martin did admit that he fought with Wiggins. As in Talley, 106 So.3d at 1018, the aggravated battery charge and claim of self-defense “came down to a credibility call” between Martin and Wiggins; even if the jury believed Martin’s claim that Wiggins was the aggressor, the jury could have found him guilty if misled by the instruction. See Williams v. State, 727 So.2d 1062 (Fla. 4th DCA 1999) (reversing aggravated battery conviction involving allegation that lawn mower blade was used as a deadly weapon when court failed to instruct on justifiable use of nondeadly force; the blade, like a knife, is not, as a matter of law, automatically considered a deadly weapon or deadly force (citing Caruthers v. State, 721 So.2d 371 (Fla. 2d DCA 1998))); see also Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA 1997) (reversing manslaughter conviction when court refused to instruct on justifiable use of nondeadly force, concluding error was not harmless because “the jury may have been unable to conclude that the use of deadly force in response to an incoming punch was justifiable but may have reached a different result if it had the opportunity to find that appellant’s use of the knives was non-deadly force”). Although a close call, we conclude that fundamental error occurred with the erroneous instruction highlighted by the prosecutor’s closing argument relying on the error.

Grand theft conviction affirmed; aggravated battery conviction reversed and remanded for a new trial.

SILBERMAN and BLACK, JJ„ Concur.

      . The statute has since been amended. Ch. 2014-195, § 4, at 2593-94, Laws of Fla.


text:
    Devin Lavonne BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4302.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Devin Lavonne Bryant appeals his judgment and sentence for aggravated assault with a deadly weapon as against victim Leugim Freytes-Calderon. We conclude that the circuit court properly denied Bryant’s motion for judgment of acquittal, and we therefore affirm.

Bryant argues that because Freytes-Calderon did not testify at trial, the State failed to prove two elements of the crime: that he [Bryant] threatened to do violence toward Freytes-Calderon and that Freytes-Calderon was in fear of imminent harm. See § 784.011(1), Fla. Stat. (2011). Bryant primarily relies on State v. Von Deck, 607 So.2d 1388 (Fla.1992), and Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997), for the proposition that “elements of an offense cannot be established by mere inference.” Von Deck, 607 So.2d at 1389 (citing State v. Dye, 346 So.2d 538, 541 (Fla.1977)).

While we do not question that proposition, we find those cases are distinguishable. Von Deck did not provide an explanation of the facts and addressed a different legal issue than the one presented in this case. 607 So.2d at 1389. And in Viveros, there was no evidence that the victim had even been “aware of or comprehended the events preceding the shooting” nor was there any evidence that the victim had been in fear. 699 So.2d at 826.

Here, the evidence reflected that Bryant was observed shooting at a group of men, which included Freytes-Calderon, causing the men to run and duck down. One of the men who was in the group testified that as a result of the incident, he was “in shock” and “scared.” We hold that these circumstances were such that they would “ ‘ordinarily induce fear in the mind of a reasonable man.’ ” Sullivan v. State, 898 So.2d 105, 108 (Fla. 2d DCA 2005) (quoting Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977)); see also Jefferson v. State, 186 So.2d 842, 843 (Fla. 2d DCA 1966) (holding that evidence was sufficient to establish aggravated assault where appellant was seen pointing and firing a gun at two women); Johnson v. State, 888 So.2d 691, 692 (Fla. 4th DCA 2004) (holding that evidence was sufficient where appellant verbally threatened victim and pointed gun at him and then at a group of people causing everyone to scatter); L.R.W. v. State, 848 So.2d 1263, 1265-66 (Fla. 5th DCA 2003) (holding that evidence was sufficient where there was testimony that appellant was seen threatening the victim and that other people were afraid); Parker v. State, 389 So.2d 336, 337 (Fla. 4th DCA 1980) (holding that “a victim who sees another person in the act of shooting at him evidences a well-founded fear of imminent bodily harm when he ducks to avoid being shot”). The fact that Freytes-Cal-deron did not testify as to his fear is not dispositive. See Sullivan, 898 So.2d at 108. We therefore affirm Bryant’s judgment and sentence for aggravated assault with a deadly weapon as against Freytes-Calderon.

Bryant also challenges a scrivener’s error appearing on the face of the judgment. The judgment form erroneously indicates that he pleaded guilty, despite the fact that the record reflects that he was convicted after a jury trial. The State concedes error. We therefore remand for the limited purpose of correcting the scrivener’s error. See Willingham v. State, 48 So.3d 173, 173 (Fla. 2d DCA 2010).

Affirmed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . At trial, he was also convicted of several other crimes, including another count of aggravated assault against a different victim. However, he does not substantively challenge those judgments and sentences on appeal.


author: DAVIS, Chief Judge.

text:
    Joseph O. VALDES, Appellant/Cross-Appellee, v. Julie Ann Palermo VALDES, Appellee/Cross-Appellant.
    No. 2D13-5509.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.

      Jose C. Gonzalez of Jose C. Gonzalez, P.A., Tampa, for Appellanl/Cross-Appel-lee.
    Ingrid Anderson, Clearwater, for Appel-lee/Cross-Appellant.
   DAVIS, Chief Judge.

Joseph Valdes, the Former Husband, challenges the final judgment of dissolution of his marriage to Julie Ann Palmero Valdes, the Former Wife. He also challenges the order resolving the Former Wife’s motion for rehearing and the Former Husband’s motion for reconsideration and the amended final judgment of dissolution. The Former Wife cross-appeals from the same orders. For the reasons set forth in this opinion, we reverse those portions of the final judgment and amended final judgment related to the calculations of child support and retroactive child support based on a mathematical miscalculation identified by the Former Wife. Both the Former Husband’s claim of mathematical error in the amended retroactive child support amount and the Former Wife’s claim of further entitlement to a credit on the retroactive child support amount are rendered moot by this reversal. We affirm the final judgment in all other respects without further comment.

As recognized in the final judgment of dissolution, the calculations for the determination of child support were complicated by the fact that one child was spending equal amounts of time with both parents while the other was spending time only with the Former Husband. In the original final judgment, the trial court set forth a basis for its child support calculations, including its reliance on section 61.30(ll)(b), Florida Statutes (2010). The trial court also included its mathematical calculations, the final portion of which appears to be an application of the formula included in section 61.30(ll)(b). The court wrote:

[Bjecause the younger child spends more than 20% of his nights with both parents, the substantial time sharing or Gross Up method also applies. To apply the Gross Up method, the original basic monthly obligation of $1,762 is multiplied by 1.5, which gives a new basic obligation of $2,643. Applying the same percentages based on their earnings, the Father is responsible for 54% of that amount, which is $1[,]427, and the Mother is responsible for 46% of that amount, which is $1,216. The percentages based on the number of resident children of each parent then apply, which results in obligations of $30⅛ for the Father and $1,070 for the Mother. The difference in these two numbers results in the Mother owing the Father $766 per month in child support (excluding health insurance).

(Emphasis added.)

Section 61.30(ll)(b) provides in part as follows:

Whenever a particular parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows:
1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to each parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
2. Calculate the percentage of overnight stays the child spends with each parent.
3. Multiply each parent’s support obligation as calculated in subparagraph 1. by the percentage of the other parent’s overnight stays with the child as calculated in subparagraph 2.
4. The difference between the amounts calculated in subparagraph 3. shall be the monetary transfer necessary between the parents for the care of the child, subject to an adjustment for day care and health insurance expenses.

The Former Wife does not disagree with the trial court’s methods of calculation. She merely argues that when the trial court applied its calculated percentages of responsibility for each parent based on their respective amounts of overnight time-sharing to both the retroactive and the current child support obligations pursuant to section 61.30(ll)(b)(3), it inadvertently failed to cross-multiply each parent’s percentage with the other parent’s obligation as required by the statute, instead multiplying each parent’s percentage with that same parent’s obligation. We agree.

We offer no opinion on the correctness of the Former Wife’s ultimate determination of the correct support obligation amount because other factors may also be considered in reaching the child support award under section 61.30(ll)(b)(7). Nevertheless, use of the formula set forth in section 61.30(ll)(b) does identify a mathematical error apparent in the amount of the child support obligation reached in the final judgment. We therefore reverse solely on the basis that applying the formula set forth in section 61.30(ll)(b)(3) to the numbers provided in the final judgment yields a number that is different than the award amount reached in the final judgment. See Smith v. Smith, 39 So.3d 458, 460 (Fla. 2d DCA 2010). This error applies to both the current and retroactive child support awards. Accordingly, we remand for the trial court to recalculate the child support and retroactive child support obligations using the correct multiplication procedures.

Based on this reversal, the parties’ remaining claims related to the reduction in the amount of retroactive alimony owed in the amended final judgment and the entitlement to an additional setoff amount on top of the reduction in the retroactive award are moot. Because the recalculation in the child support amount on remand will necessarily require the trial court’s recalculation of the amount owed in retroactive child support, we note that the trial court may again opt to exercise its statutory discretion in determining the retroactive amount. Sections 61.30(2) and (ll)(a)(ll) anticipate that a trial court can consider the matter of the Former Husband living rent-free during a certain period in determining sources of parental income or setting a child support amount— including to achieve an equitable result. Section 61.30(17), applying specifically to the award of retroactive alimony, defines such a determination as discretionary and indicates that the trial court should consider the factors listed in section 61.30(2) as part of the determination.

Affirmed in part, reversed in part, and remanded.

LaROSE and MORRIS, JJ., Concur.

      . Neither party challenges — nor do we further address — whether the time-sharing percentages used by the trial court in its section 61.30(1 l)(b) calculations are correct.

      . Specifically, the Former Wife argues that in applying section 61.30(1 l)(b)(3), the correct calculations are represented by the following two equations: $1427 (the Former Husband’s obligation) x .25 (the Former Wife’s time-sharing percentage for both children) = $356.75; and
      $1216 (the Former Wife's obligation) x .75 (the Former Husband’s time-sharing percentage) = $912.
      The smaller result is then to be subtracted from the larger pursuant to section 61.30(1 l)(b)(4), resulting in the Former Wife's argument that she owes only $555.25 in child support. According to the partial calculations set forth in the final judgment, the trial court instead errantly multiplied $1427 by .75 and $1216 by.25. This resulted in the incorrect conclusion that the Former Wife owed $766 in child support per month.


author: KHOUZAM, Judge.

text:
    SANG YOUN KIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6244.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Sang Youn Kim pleaded no contest to traveling to seduce/solicit/entice a child to commit a sex act and use of a computer to seduce/solicit/entice a child to commit a sex act, reserving the right to appeal the denial of his motion to dismiss on double jeopardy grounds. Because these dual convictions violate the prohibition against double jeopardy, we affirm in part and vacate in part.

The record shows that on September 15, 2012, Kim responded to a Craigslist ad placed by an undercover officer. The officer advised Kim — who was forty-six years old at the time — that he was communicating with a fourteen-year-old girl. The next day (September 16), Kim continued communicating with the fictitious girl via email, indicating that he wanted to have sex with her. He arranged to meet at a location in Manatee County that he believed was the girl’s home, traveled from his Tampa home to the Manatee County location, and was taken into custody upon his arrival.

Kim was charged with traveling to seduce/solicit/entice a child to commit a sex act under section 847.0135(4)(a), Florida Statutes (2012), and use of a computer to seduce/solicit/entice a child to commit a sex act under section 847.0135(3)(a). Both offenses were alleged to have occurred on September 16, 2012. He moved to dismiss on double jeopardy grounds. The trial court denied the motion, determining that the dual charges did not violate double jeopardy principles.

But in the recent opinion Shelley v. State, this court addressed a nearly identical issue, holding as follows:

In essence, the traveling offense [under section 847.0135(4)(b) ] proscribes traveling to meet a child to engage in unlawful sexual contact after having solicited the child’s parent, legal guardian, or custodian or a person believed to be such. Thus, the soliciting offense [under section 847.0135(3)(b) ] does not contain an element that is not found in the traveling offense. See [Hartley v. State, 129 So.3d 486, 491 (Fla. 4th DCA 2014) ]; [Pinder v. State, 128 So.3d 141, 143 (Fla. 5th DCA 2013) ]. As a result, dual convictions for soliciting and traveling in the course of one criminal transaction or episode violate the prohibition against double jeopardy. Id.

134 So.3d 1138, 1141 (Fla. 2d DCA), review granted, 147 So.3d 527 (Fla.2014). This analysis applies equally to the charges in question here, soliciting under section 847.0135(3)(a) and traveling under section 847.0135(4)(a), which run parallel to the statutory sections addressed in Shelley. Thus, “the convictions for both soliciting and traveling as charged in this case violate the prohibition against double jeopardy because the soliciting offense is subsumed by the traveling offense.” Shelley, 134 So.3d at 1142. We affirm the conviction and sentence for traveling and vacate the conviction and sentence for soliciting. See id. We also certify conflict with the First District’s decision in State v. Murphy, 124 So.Sd 323 (Fla. 1st DCA 2013), as this court did in Shelley. See id.

Affirmed in part and vacated in part; conflict certified.

LaROSE and SLEET, JJ., Concur.

      . The statutory sections appear in their entirety as follows:
      (3) Certain uses of computer services or devices prohibited. — -Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
      (a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; or
      (b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,
      commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who, in violating this subsection, misrepresents his or her age, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged'as a separate offense.
      (4) Traveling to meet a minor. — Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
      (a) Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child; or
      (b) Solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct,
      commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      § 847.0135.


author: CASANUEVA, Judge.

text:
    Forrest M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4308.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   CASANUEVA, Judge.

We affirm Forrest M. Johnson’s judgment and sentence in this Anders appeal. However, we remand for the trial court to correct an apparent scrivener’s error in the order revoking probation.

Johnson admitted to violating his probation, and his probation was revoked based on the violations set forth in an amended affidavit of probation. The amended affidavit alleged nine violations, including a violation of condition three for changing his residence without the consent of the probation officer. The order of revocation tracks the violations alleged in the amended affidavit but includes a violátion of condition thirteen, failure to report within seventy-two hours of release, and no violation of condition three. No violation of condition thirteen was alleged or otherwise at issue. Thus, it appears the trial court intended to include a violation of condition three, not condition thirteen, in its order. Accordingly, we affirm Johnson’s judgment and sentence but remand for the trial court to correct the order revoking probation.

Affirmed and remanded.

DAVIS, C.J., and ALTENBERND, J., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Larry PEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2681.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    David S. Molansky of David S. Molansky Attorney at Law, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Garrett v. State, 148 So.3d 466, 472 (Fla. 1st DCA 2014) (finding there was no fundamental error in giving instructions on a duty to retreat because “[t]here was ample evidence presented for the jury to find that from the beginning of the incident, [the defendant] did not have a reasonable belief that deadly force was necessary to prevent an imminent threat against him, especially after [the victim] dropped his rifle and [the defendant] continued to shoot”).

STEVENSON, FORST and KLINGENSMITH, JJ„ concur.


author: GERBER, J. WARNER, J.,

text:
    Douglas S. LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-527.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from his convictions on two counts of extortion and eleven counts of third degree grand theft relating to work to be performed by his construction company on projects for several customers. The defendant raises several arguments, but we write to address only his argument that the trial court erred in denying his motion for judgment of acquittal on the grand theft counts where work was performed on each of the projects. On that argument and all other arguments raised, we affirm.

Section 812.014(1 )(a), Florida Statutes (2004), defines theft, in pertinent part as follows:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently ... [djeprive the other person of a right to the property or a benefit from the property.

§ 812.014(l)(a), Fla. Stat. (2004) (emphasis added). Section 812.012(3), Florida Statutes (2004), defines “[ojbtains or uses” as “any manner of ... [mjaking any unauthorized use, disposition, or transfer of property [or][o]btaining property by fraud, willful misrepresentation of a future act, or false promise.” § 812.012(3)(b) & (c), Fla. Stat. (2004).

Applying the foregoing statutes here on de novo review, we conclude the state introduced competent, substantial evidence to prove that the defendant committed theft. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (“In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.”) (citations omitted). Viewing the evidence in the light most favorable to the state, the defendant made unauthorized use, disposition, and transfer of funds as to certain customers and obtained funds by fraud, willful misrepresentation of a future act, or false promise as to other customers. See id. (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”) (citation omitted).

The defendant argues the fact that work was performed on each of the projects negates a finding of theft. In support, the defendant relies on Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012), for the proposition that “evidence of actual performance of some portion of the contract negates an intent not to perform at the inception of the contract.” Id. at 744.

However, the defendant’s reliance on Se-gal is incomplete. We explained this point in Henry v. State, 133 So.3d 1034 (Fla. 4th DCA 2014):

In Segal, the defendant entered into a contract to construct cabinets for a customer. The customer wrote a check for some of the costs, which the defendant deposited. The defendant came to the customer’s home to measure for the cabinets, purchased materials, and made several rental payments on his work space where he would construct the cabinets. However, the defendant did not install the cabinets at any point. The state charged the defendant with grand theft. At the end of the state’s case at trial, the defendant moved for a judgment of acquittal, arguing that the state failed to prove an intent to steal or defraud. The trial court denied the motion.
We reversed and directed the trial court to vacate the defendant’s conviction and sentence. After examining similar cases from other districts, we indeed stated that “evidence of actual performance of some portion of the contract negates an intent not to perform at the inception of the contract.” Id. However, our holding was not based solely on the fact that the defendant had actually performed a portion of the contract. Instead, our holding also was based on the fact that “[t]he state presented no evidence of any willful misrepresentations to induce the homeowner to sign the contract.” [Segal, 98 So.3d] at 745.

Henry, 133 So.3d at 1037-38 (emphasis added). Having explained that point, we affirmed the conviction in Henry on the basis that the state presented evidence of willful misrepresentations to commit the theft.

Here, as in Henry, and unlike in Segal, the state presented evidence of willful misrepresentations to commit the theft. The state also presented evidence of unauthorized use, disposition, or transfer of customer funds. Thus, sufficient circumstantial evidence of felonious intent existed and the state met its burden of producing evidence inconsistent with the defendant’s theory of innocence. See Pagan, 830 So.2d at 803 (“[I]f the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.”); Segal, 98 So.3d at 743 (“Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances.”) (citation and quotations omitted).

Similar to our admonition in Henry, we do not mean to express the view that the state should prosecute as a theft every dispute over a contractor’s performance. Cf. Henry, 133 So.3d at 1038 (“By this opinion, we do not mean to express the* view that the state should prosecute as a theft every breach of contract involving the failure to pay money.”). Instead, we again write to express the view that the state should not be precluded from prosecuting a theft under such circumstances “when it can prove circumstantial evidence of felonious intent, as that term is used in section 812.014(1), which is inconsistent with the defendant’s theory of innocence.” Id.

Based on the foregoing, we affirm the defendant’s convictions for third degree grand theft. We also affirm the defendant’s convictions for extortion without further discussion.

Affirmed.

CIKLIN, J., concurs.

WARNER, J., concurs in part and dissents in part with an opinion.

WARNER, J.,

concurring in part and dissenting in part.

I dissent as to the affirmance of the convictions for grand theft. On de novo review, I conclude that this case is like Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012), and partial performance has negated any finding of theft. Moreover, I disagree with the majority’s statement that the state produced evidence of unauthorized use of funds or any willful misrepresentations to secure any funds. The type of representations which we found were sufficient to prove theft in Henry v. State, 133 So.3d 1034 (Fla. 4th DCA 2014), are not present in this case.


author: DAMOORGIAN, C.J.

text:
    Pierre IMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1675.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Edward J. Mosher, Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Pierre Imbert appeals his judgment and sentence for one count of lewd or lascivious exhibition by an offender over the age of 18 and one count of lewd or lascivious battery. Imbert raises four arguments on appeal. We affirm on all grounds but write to address Imbert’s argument that the trial court erred in considering an uncharged crime during sentencing.

At Imbert’s sentencing hearing, the state presented testimony from an officer who investigated a different case involving Imbert. The crime that the officer investigated was similar to the criminal act in this case. According to the officer, the case did not go forward because neither the minor victim, nor her mother, wanted to prosecute. Defense counsel objected to the court’s consideration of the uncharged crime. Without making a formal ruling on the objection, the court noted:

It’s not a violation and it’s a constitutional right to consider other relevant factors when determining an appropriate sentence. And what has been presented to me was that the only thing that kept them from pursuing the charges was the victim and the victim’s mother declined to participate and to prosecute or to cooperate.

Imbert denied the allegations in the uncharged case and the court stated the following before announcing Imbert’s sentence: “I have taken into consideration the Defendant’s lack of criminal history. I have also taken into consideration the facts of this case and the scoresheet.” The court sentenced Imbert to six years in prison followed by five years of sex offender probation with electronic monitoring. This appeal follows.

On appeal, Imbert argues that the trial court violated his due process rights at sentencing by considering the uncharged crime. Because Imbert claims that this sentencing error rendered his sentence illegal, our standard of review is de novo. Norvil v. State, — So.3d —, -, 2014 WL 940724, 39 Fla. L. Weekly D520, 521 (Fla. 4th DCA Mar. 12, 2014) (citing State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011); Etienne v. State, 15 So.3d 890, 893 (Fla. 4th DCA 2009)).

We begin our analysis by recognizing that the role of the sentencing judge

“is not confined to the narrow issue of guilt. [The judge’s] task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to [the judge’s] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”

Id. at-, at D522 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The sentencing judge has broad discretion to impose a sentence within the statutory range set forth by the legislature, see § 921.002(g), Fla. Stat. (2012) (permitting judge to impose a sentence up to and including the statutory maximum), and may consider a variety of factors, including a defendant’s criminal history, employment status, family obligations, and over-all reputation in the community, see Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) (recognizing that sentencing court has wide discretion concerning the factors it considers at sentencing). However, a sentencing court violates a defendant’s due process rights when it relies on constitutionally impermissible factors. Norvil, — So.3d at-, 39 Fla. L. Weekly at D520.

Imbert argues that the trial court violated his due process rights because an uncharged crime should never be considered by a trial court for sentencing purposes. We reject Imbert’s per se rule prohibiting trial courts from considering uncharged crimes at sentencing.

“The United States Supreme Court has held that it is not a violation of a defendant’s constitutional rights to consider other relevant factors when determining an appropriate sentence.” Dowling v. State, 829 So.2d 368, 371 (Fla. 4th DCA 2002) (citing Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Williams, 337 U.S. at 246-52, 69 S.Ct. 1079). The Florida Legislature recognized a number of relevant factors in enacting section 921.231 of the Florida Statutes, which governs presentence investigation reports. See § 921.231, Fla. Stat. Subsection (1) lists the factors that should be included in a full presentence investigation report, including “the offender’s prior record of arrests and convictions.” § 921.231(1), Fla. Stat. Against this legislative backdrop, we determined that a sentencing court may consider a defendant’s pending charges if they are related to the crime for which the defendant is being sentenced. See Whitehead v. State, 21 So.3d 157, 158-60 (Fla. 4th DCA 2009) (trial court appropriately considered defendant’s pending charge during sentencing because it involved the defendant’s conduct toward minors and he was being sentenced for possession of cannabis, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor).

More recently, in Norvil, we held that there is “no significant difference between prior arrests and subsequent arrests for sentencing purposes” because “[i]n both circumstances, the sentencing court will have to ensure the relevance and reliability of information presented regarding the alleged criminal activity and allow the defendant an opportunity to explain or rebut those charges.” — So.3d at-, 39 Fla. L. Weekly at D521. In so holding, we considered the fact that: “(1) the new charge was relevant; (2) the allegations of criminal conduct were supported by evidence in the record; (3) the defendant had not been acquitted of the charge that arose from the subsequent arrest; (4) the record [did] not show that the trial court placed undue emphasis on the subsequent arrest and charge in imposing sentence; and (5) the defendant had an opportunity to explain or present evidence on the issue of his prior and subsequent arrests.” Id. at -, at D522.

Though Norvil does not directly address the propriety of a sentencing court’s consideration of uncharged crimes, other jurisdictions have permitted trial courts to consider a defendant’s uncharged crimes for sentencing purposes. See, e.g., Elias v. State, 93 Wis.2d 278, 286 N.W.2d 559, 562 (1980) (“This court has stated that the trial court in imposing sentence for one crime can consider other unproven offenses, since those other offenses are evidence of a pattern of behavior which is an index of the defendant’s character, a critical factor in sentencing.”); cf. People v. Bratcher, 291 A.D.2d 878, 737 N.Y.S.2d 451, 453 (N.Y.App.Div.2002) (“Although a court may consider uncharged crimes in sentencing a defendant, it ‘must assure itself that the information upon which it bases the sentence is reliable and accurate....’” (internal citations and quotations omitted)).

While it is not our intent to reduce a sentencing hearing to a hybrid criminal trial, we hold that a sentencing court may consider an uncharged crime upon proper application of the Norvil factors. See United States v. Weston, 448 F.2d 626, 633 (9th Cir.1971) (“We do not desire to transform the sentencing process into a second trial, and we believe that other criminal conduct may properly be considered, even though the defendant was never charged with it or convicted of it.”). However, an uncharged crime is certainly not a conviction or finding of guilt and the trial court must avoid “placing undue emphasis on [it] at the sentencing hearing.” Norvil, — So.3d at-, 39 Fla. L. Weekly at D522 (quoting Jansson v. State, 399 So.2d 1061, 1062-63 (Fla. 4th DCA 1981)); see also Denson v. State, 112 Nev. 489, 915 P.2d 284, 287 (1996) (‘While a district court has wide discretion to consider prior uncharged crimes during sentencing, the district court must refrain from punishing a defendant for prior uncharged crimes. Consideration of those crimes is solely for the purpose of gaining a fuller assessment of the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” (citations omitted)).

Our application of the Norvil factors to the facts of this case leads us to conclude that the trial court did not err in considering Imbert’s uncharged crime. First, the uncharged crime was relevant because the allegations involved criminal activity similar to what occurred in this case. Second, these allegations were supported by the officer’s testimony at the sentencing hearing, which included details of the incident obtained through an interview of the victim and a controlled phone call to Imbert. The reason the case did not go forward was because the victim and her mother did not wish to prosecute and Imbert was given the opportunity to explain and present evidence to rebut the officer’s testimony. Finally, the record does not indicate that the trial court relied on the uncharged crime in determining Imbert’s sentence. For these reasons, we reject Imbert’s argument that the trial court committed sentencing error and affirm his judgment and sentence in all respects.

Affirmed.

GROSS and MAY, JJ., concur.

      . Imbert sets forth the following arguments: (1) the trial court erred by allowing the trial to proceed without providing Imbert with a Creole interpreter; (2) the statute governing lewd or lascivious battery-section 800.04(4), Florida Statutes — is unconstitutionally vague because it does not provide definitions for the terms “entice" or “encourage;” (3) the trial court improperly considered an uncharged crime against Imbert at sentencing; and (4) ineffective assistance of counsel is apparent on the face of the record.

      . In fact, when announcing the basis for Im-bert's sentence, the trial court noted Imbert’s lack of criminal history and did not mention the uncharged crime.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. C.M., a child, Appellee.
    No. 4D13-2168.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for ap-pellee.
   LEVINE, J.

The state appeals the trial court’s dismissal of a petition for delinquency filed against appellee based on the court’s finding that the juvenile did not commit a delinquent act. We find that the trial court did not err in dismissing the petition, because the act charged was a noncriminal violation and as such was not a delinquent act or violation of law as required to justify delinquency proceedings. We are therefore compelled to affirm the trial court’s dismissal of the state’s petition for delinquency.

The state filed a petition for delinquency charging appellee, C.M., with violating section 847.0141(3)(a), Florida Statutes (2013), “Sexting (First Offense).” Appellee allegedly sent an “SMS photograph of her own vagina to a classmate who is a 13 year old [] female.” Appellee allegedly “admitted to sending the photograph ... because she was ‘bored.’ ”

Appellee moved to dismiss the petition arguing that the first offense of sexting, pursuant to section 847.0141(3)(a), was not a violation of law or a delinquent act thereby precluding the juvenile court from having jurisdiction. The state conceded that a first violation of the statute was noncriminal, but argued that the juvenile court had jurisdiction based, in part, on legislative intent. The trial court found it had jurisdiction and thus denied appellee’s “motion to dismiss based upon jurisdictional reasons,” but granted the motion to dismiss “based on the fact that the child did not commit a delinquent act.” The state appeals the dismissal.

The standard of review of an order dismissing a petition for delinquency is de novo. K.J. v. State, 107 So.3d 523 (Fla. 4th DCA 2013). Further, “[t]he interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.” Kasischke v. State, 991 So.2d 803, 807 (Fla.2008) (citation omitted).

The trial court correctly denied appellee’s motion to dismiss based on jurisdiction. Circuit courts “shall have exclusive original jurisdiction” in “all cases relating to juveniles except traffic offenses as provided in chapters 316 and 985.” § 26.012(2)(c), Fla. Stat. (2013). In the present case, because appellee is a juvenile alleged to have violated a non-traffic offense, the circuit court has exclusive original jurisdiction.

The trial court was also correct in granting the motion to dismiss based on finding that the juvenile did not commit a delinquent act. A first offense of sexting is a noncriminal violation not constituting a delinquent act or violation of law, and is thus not subject to prosecution through a petition for delinquency.

Florida’s sexting statute provides:

A minor commits the offense of sex-ting if he or she knowingly ... [u]ses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity, as defined in s. 847.001(9), and is harmful to minors, as defined in s. 847.001(6).

§ 847.0141(l)(a), Fla. Stat. (2013). A minor who violates the section “[cjommits a noncriminal violation for a first violation, punishable by 8 hours of community service or, if ordered by the court in lieu of community service, a $60 fine.” § 847.0141(3)(a), Fla. Stat. (2013) (emphasis added). “The court may also order the minor to participate in suitable training or instruction in lieu of, or in addition to, community service or a fine.” Id.

Florida Statutes defines “noncriminal violation” as:

When used in the laws of this state ... [t]he term “noncriminal violation” shall mean any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term “noncriminal violation” shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.

§ 775.08(3), Fla. Stat. (2013).

Under the delinquency statutes, the state attorney files a petition for delinquency in the circuit court to obtain “a finding that a child has committed a delinquent act or violation of law.” §§ 985.0301(1), 985.318(1), Fla. Stat. (2013); Fla. R. Juv. P. 8.030(a). The petition shall be filed “where the delinquent act or violation of law occurred.” § 985.0301(4)(a), Fla. Stat. (2013). A “violation of law” or “delinquent act” is defined as “a violation of any law of this state, the United States, or any other state which is a misdemeanor or a felony or a violation of a county or municipal ordinance which would be punishable by incarceration if the violation were committed by an adult.” § 985.03(57), Fla. Stat. (2013).

In the present case, as admitted by the state, a first violation of the sexting statute is a noncriminal violation. A noncriminal violation does not constitute a crime. Thus, by definition, a first offense of sex-ting does not fit within the definition of a delinquent act or violation of law under section 985.03(57). Because appellee’s alleged conduct does not fit within the statutory definition of a delinquent act or violation of law, a petition for delinquency is not the proper method to prosecute her alleged first offense of sexting. Therefore, the trial court properly dismissed the petition for delinquency.

The state below, and now on appeal, argues that the trial court’s dismissal leaves it without a remedy. The state asserts that this court should authorize the use of a petition for delinquency, because it is the only method to determine if a noncriminal first offense of sexting has occurred. However, the legislature has crafted other statutes that provide detailed procedures for prosecuting juveniles accused of committing other noncriminal violations.

Here, it is up to the legislature to draft statutes to effectuate the procedure for prosecuting a first offense of sexting. The courts “are not at liberty to add words to statutes that were not placed there by the Legislature. To do so, would be an abrogation of legislative power.” Bay Holdings, Inc. v.2000 Island Blvd. Condo. Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (citations omitted). This premise follows the statutory canon known as the “Omitted-Case Canon,” meaning “nothing is to be added to what the text states or reasonably implies (casus omissus pro om-isso habendus est). That is, a matter not covered is to be treated as not covered.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) (citing People v. Boothe, 16 N.Y.3d 195, 919 N.Y.S.2d 498, 944 N.E.2d 1137, 1139 (2011) (affirming the dismissal of the defendant’s indictment where the legislature had failed to criminalize the defined conduct under a revised statute, noting “that courts are not to legislate under the guise of interpretation,” and holding that if the statute’s “deficiency is to be corrected, it must be done through legislative action, as the Legislature is better equipped to correct any deficiencies that might exist”) (citations omitted)). See also Kortum v. Sink, 54 So.3d 1012, 1018 (Fla. 1st DCA 2010) (“It is fundamental that judges do not have the power to edit statutes so as to add requirements that the legislature did not include.”) (citation omitted); Fla. Dep’t of Rev. v. Fla. Mun. Power Agency, 789 So.2d 320, 323 (Fla.2001) (“Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.”) (citation omitted).

Here, as previously stated, only the legislature can add to the sexting statute to set out the procedure for the prosecution and determination if there has been a violation of the first offense. Until that is effectuated by the legislature, we are bound to the letter of the law and “must apply a statute as [we] find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.” Guilder v. State, 899 So.2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So.2d 391, 404 (Fla.1974)).

Because we are bound by the law as it was passed by the legislature and not allowed to add language to or fill gaps in the statute, we affirm the dismissal by the trial court of the petition for delinquency.

Affirmed.

CIKLIN and GERBER JJ., concur.

      . Under Chapter 316, circuit courts also have jurisdiction over minors alleged to have committed felony traffic violations, while county courts have jurisdiction over minors alleged to have committed any non-felony traffic violations.

      . For example, under Florida’s curfew statute, a minor commits a noncriminal infraction and receives a written warning for a first violation, and a civil fine is imposed for subsequent violations. § 877.22, Fla. Stat. (2013). Florida’s truancy statutes require minors to attend school regularly and are noncriminal in nature. See § 1003.21, Fla. Stat. (2013). Prosecution is commenced through a truancy petition, various sanctions can be imposed for violations, and the circuit court may use its contempt power to enforce those sanctions. §§ 984.151, 1003.27, Fla. Stat. (2013). Lastly, multiple statutes make it unlawful for minors to possess tobacco products, alcohol, and nicotine products. §§ 569.11(1), 877.112, Fla. Stat (2013). A minor in possession of these items commits a noncriminal violation and must sign and accept a civil citation, appear before court or pay a fine, and attend remedial programing.