author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. William CRUMBLEY, Appellee.
    No. 2D12-2882.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    Terry P. Roberts, Tallahassee, for Ap-pellee.
   ALTENBERND, Judge.

The State appeals an unusual pair of nonfinal orders sealing certain medical records that had been obtained by the State pursuant to a search warrant. The orders effectively deny the State all access to this potential evidence and will prevent its use as evidence in three pending criminal cases. We conclude that this court has jurisdiction to review the orders as orders suppressing evidence obtained by search and seizure. See Fla. R. App. P. 9.140(c)(1)(B).

As explained in this opinion, the medical records were seized prior to the filing of any criminal proceeding. They were seized pursuant to a search warrant during an investigation of persons allegedly operating an illegal pain management clinic. Contrary to the ruling of the circuit court, we conclude that the magistrate could properly issue a search warrant for medical records at the clinic without an affidavit establishing probable cause for each patient. If the records could be used to prove criminal charges against the persons being investigated, the magistrate could authorize their seizure. Accordingly, the circuit court erred in sealing these records for that reason.

The records, however, are the medical records for patients who are not targets of the investigation and for whom law enforcement had no probable cause to obtain a search warrant at the time of seizure. The patients have both statutory and constitutional rights of privacy. Thus, the circuit court was correct to be concerned about those rights. Although we reverse the orders on appeal, we remand for further proceedings at which the circuit court may fashion an appropriate remedy, permitting the State limited access to the information inside the medical records but with a method that is essentially the least intrusive means of interference with the patients’ rights of privacy.

I. FACTS

In mid-2011, the Pasco County Sheriffs Office conducted an investigation of Har-bour Medical Group. The investigating deputies suspected that the location was an unlicensed pain-management clinic. See § 458.3265, Fla. Stat. (2010, 2011). As reflected in the affidavit used to obtain a search warrant, the detectives observed the clinic from its parking lot, sent undercover deputies into the clinic, and obtained information from nearby pharmacies. Allegedly, the deputies discovered that Dr. Crumbley had written about 17,500 prescriptions for 1400 patients between November 1, 2009, and November 9, 2011. Of those prescriptions about 14,000 were for “pain management clinic type medications.” The investigation ultimately focused on Dr. Crumbley and on two persons involved at the clinic who were not licensed physicians, Ronald York and To-sha Jo Robbins.

On December 8, 2011, one of the investigating deputies filed an affidavit for a search warrant, which was subsequently issued by Judge Pat Siracusa. The warrant permitted the sheriff to seize a broad array of business records located at the clinic, including “patient medical records.” The warrant was executed on December 13, 2011, and the inventory reflects that the deputies seized extensive materials, including at least twenty boxes of “patient flies.” The defendant was arrested the same day they conducted the search.

The State filed a two-count information against Dr. Crumbley on December 23, 2011. Count II alleged that he had introduced contraband into a detention facility. That count is not the focus of this appeal. Count I alleged that Dr. Crumbley

did knowingly operate, own or manage a non-registered pain management clinic that is required to be registered with the Department of Health pursuant to Florida Statute 459.0137(1); contrary to Chapter 459.013(l)(e), Florida Statutes, and against the peace and dignity of the State of Florida.

This charge was amended but only to change the relevant statute to section 458.3265(1). Mr. York and Ms. Robbins were also arrested and similarly charged.

It is noteworthy that section 458.3265 was amended between the first and last dates alleged in the information. From a review of the statute, it appears that the patient medical records seized in this case may have less relevance and that less information from those files may be needed for the State to prove its case under the statute as it existed prior to July 1, 2011. See ch. 2011-141, § 31, at 2247, Laws of Fla. However, following the amendment, the definition of a “[plain-management clinic” may include a facility “[w]here in any month a majority of patients are prescribed opioids, benzodiazepines, barbiturates, or carisoprodol for the treatment of chronic nonmalignant pain.” § 458.3265(l)(a)(l)(b)(II), Fla. Stat. (2011). To prove this element of the criminal offense might require the State to have more extensive access to medical records.

The record reflects that Dr. Crumbley was released on bond and that an attorney appeared on his behalf. At least through the time when the orders on appeal were entered, Dr. Crumbley did not file any motion to suppress or other motion directed to the items seized pursuant to the search warrant. Mr. York, who is pro se, filed a motion to suppress, but that motion does not appear to have played any role in the entry of the orders on appeal.

It is apparent from our record that both the deputies and the assistant state attorneys involved in this case realized that the medical records required special treatment. Exactly how decisions were made and by whom is not clear from this record, but the procedures described below indicate that the State was aware of the decision in State v. Rattray, 903 So.2d 1015 (Fla. 4th DCA 2005), and attempted to follow those procedures.

In mid-April 2012, the State filed a document entitled “State’s Memorandum of Law, Regarding Medical Records Seized in Search Warrant, and Motion to Preserve Recording.” In the first sentence of this document, the State moved to “review medical records seized pursuant to a search warrant.” The document recites that the patient medical files “have been in the care, custody, and control of the Pasco County Sheriffs Office and have not been reviewed pending a privacy hearing which was set for April 30, 2012.” The document further explains that the deputies had prepared 856 letters to patients notifying them of this seizure, warning them that they might be possible targets of the investigation, and notifying them of the hearing set for April 30, 2012. A copy of a sample letter is attached to this opinion as Appendix A. The document contained a thorough discussion of the applicable law.

Within a few days of the filing of this document, an objection to the review of medical records was filed by an attorney representing an unidentified patient. Apparently, a few more responses to the letters were received, but those responses have been sealed and are not in our record.

The privacy hearing took place before Judge Susan Gardner on April 30, 2012. From the record, it is not clear that Dr. Crumbley or his attorney appeared at this hearing. If so, they were not active participants. At least two attorneys appeared for patients whose names were not fully disclosed. Mr. York appeared for the hearing, but the court concluded that he had no standing.

The only witness who testified at the hearing was the deputy who signed the affidavit for the search warrant. His testimony was frequently interrupted by objections and legal discussions among the lawyers and the judge. He provided testimony about obtaining the warrant and executing the warrant. He explained that sheriffs personnel had reviewed these records for the limited purposes of obtaining the names and addresses of the patients. They looked at 904 patient files relating to 855 patients. They sent letters to all 855 patients; 208 of those letters were returned as undeliverable. Of that group, 8 patients were determined to be deceased. Thereafter, the sheriffs personnel attempted alternative addresses for the returned letters. Ultimately, the deputy testified that 739 letters were delivered and 116 were undeliverable.

The deputy also explained the type of information that the investigators needed to extract from these files to prove the case and a method of giving each patient an identifying number to preserve privacy. He testified that a few patients had made contact with him to obtain copies of their records.

Two portions of this testimony probably create the most controversy. First, the deputy admitted that, while the patients were not the target of this investigation, if the reviews revealed probable criminal conduct by the patient, then the patient would be further investigated. Second, he admitted that the Department of Health had served a subpoena on the sheriff to produce records for use in an administrative investigation and that the sheriff had complied with the subpoena. It is not clear from this record what was given to the Department of Health.

Near the end of the hearing, Judge Gardner explained:

I’m the wrong one sitting here.... [T]here’s a very intricate part of this puzzle that has already been determined and I’m having to jump on somebody else’s back and look at this.
This case needs to be assigned to Judge Siracusa. He’s the one that has the probable cause. Everything is hinging on that warrant right now and that’s — he had the benefit of hearing the affidavits and having sworn testimony in his chambers, and I’m just playing catch up here.
And I’m not the one who made that decision, so I don’t feel that I’m the appropriate one to hear this argument.

Accordingly, Judge Gardner filed a notice of recusal on May 1, 2012. The case, however, was not assigned to Judge Sira-cusa but rather to Judge Linda Babb. On May 15, without any further proceedings, Judge Babb, “upon the court’s own motion,” entered an eight-page order requiring the Pasco County Sheriffs Office to immediately seal all seized patient medical records until further order of the court. The Office of the State Attorney was ordered to notify all affected patients of this action. That office was also required to deliver to the court the original letters and objections received from all affected patients without retaining a copy. The letters and objections were to be placed in a sealed file by the clerk of court.

A week later, Judge Babb entered a second order requiring the court reporter to preserve the record of the hearing before Judge Gardner and to file a sealed copy of the hearing with the clerk of court. The State’s request to have access to the records was denied as moot, and a related hearing was cancelled as moot. The State has timely appealed these two orders.

II. THE TRIAL COURT’S ORDER

The trial court’s order provides a detailed explanation of its ruling. Although we disagree with some of its reasoning, the detailed explanation has been very helpful in this court’s analysis. The order provides a good summary of the procedural history of the case and of the testimony at the hearing. In the section discussing its analysis, the court first examines the search warrant and the affidavit supporting its issuance. The court concludes: “The affidavit set forth facts establishing probable cause regarding the actions of the doctors at Harbour Medical Group, but it lacked sufficient information about individual patients.” It further explains: “While the search warrant did authorize the seizure of patient medical records and prescription records, because the affidavit alleged no facts regarding individual patients, there was no probable cause for a warrant for individual patients’ records for the purpose of prosecuting patients.”

The court then turns to section 456.057, Florida Statutes (2010, 2011), which protects the privacy of patient records maintained by health care providers. Relying heavily on this court’s decision in Mullis v. State, 79 So.3d 747 (Fla. 2d DCA 2011), the court concludes that such medical records can only be obtained by issuance of a subpoena in compliance with section 456.057(7). The court recognizes that the Fourth District did not apply section 456.057(7) in the context of a search warrant in Limbaugh v. State, 887 So.2d 387 (Fla. 4th DCA 2004), and that it allowed procedures similar to the procedures employed by the deputies in Rattray, 903 So.2d 1015, but it concludes that it must follow the Second District’s decision in Mullís, 79 So.3d 747.

Finally, it recognizes that article I, section 23, of the Florida Constitution provides a right of privacy applicable to medical records and questions whether the actions of the deputies may have already violated those rights. Although the order seals the records “until further of this court,” it contains no explanation as to how the State might ever get access to these records having already violated section 456.057(7), and having no probable cause as to individual patients. Although no one moved to suppress this evidence challenging the sufficiency of the affidavit supporting the search warrant, the court’s own motion determines that the affidavit was insufficient due to the lack of evidence as to each patient.

III. JURISDICTION

Dr. Crumbley argues that this appeal cannot proceed because the order is a non-final, nonappealable order, and because the State has failed to name the patients as necessary parties to this appeal. We reject both arguments.

As to the argument that the patients are necessary parties to this appeal, the action in the trial court was a criminal prosecution against Dr. Crumbley. Legally, none of the patients are “parties” to that proceeding. They filed no motion seeking relief other than the anonymous objection to the review of medical records. The motion challenged by this appeal is the court’s own motion. As a practical matter, the trial court’s order sealing the records and the correspondence would seemingly prevent the State from serving these patients and naming them in the style of this appeal. We note that the State served its notice of appeal on all attorneys who appeared for unnamed patients. Those attorneys have not appeared for the patients in this appeal.

This appeal involves an order that prevents the State from developing its evidence in the criminal case against Dr. Crumbley. The patients create factual complexities in resolving these legal issues, but they are not parties to the action and they are not bound by any ruling. If they wish to bring a civil action alleging a violation of their privacy rights, nothing in this criminal action would bar that civil action. Indeed, the complexity of this case arises mostly from the need to implement procedures to protect the privacy rights of people who are not and never will be parties to the action. Thus, we conclude there is no basis to dismiss this appeal for lack of any necessary party.

Whether the order on appeal is reviewable under rule 9.140(c)(1)(B) may be a closer question. No party filed a motion to suppress. The court’s own motion is not expressly a motion to suppress, but the ruling concludes that the affidavit in support of the warrant is legally insufficient. The order not only suppresses the evidence, it seals the information so that the State can never know what evidence is contained within the sealed documents. Dr. Crumbley suggests that the order does not prevent the State from using other methods to obtain the sealed files, but he does not provide any procedure that would actually work to obtain these records unless the State were to develop probable cause to bring separate criminal proceedings against at least a majority of the patients. Accordingly, we conclude that the order is functionally an order suppressing evidence seized by search and seizure.

IY. THE WARRANT DID NOT REQUIRE PROBABLE CAUSE AS TO EACH PATIENT

We conclude that the trial court erred when it required the deputy to have probable cause of criminal activity by a patient in order to obtain a search warrant for the patient’s medical records when those records were needed to investigate criminal activity by persons other than the patient. There are many situations in which medical records of victims are needed during criminal investigations. The fact that the records are not those of the criminal, but rather of some presumably innocent person, does not prevent the records from being relevant to the criminal prosecution. We can find no authority to support this additional probable cause requirement when seeking a search warrant.

The trial court’s error is perhaps revealed in the statement: “While the search warrant did authorize the seizure of patient medical records and prescription records, because the affidavit alleged no facts regarding individual patients, there was no probable cause for a warrant for individual patients’ records for the purpose of prosecuting patients.” These medical records were not obtained “for the purpose of prosecuting patients.” They were obtained for the purpose of prosecuting Dr. Crumbley.

The trial court openly reflects its concern about the deputy’s suggestion that a review of the records could lead to further investigation of patients. That concern is valid. The search in this case was done to prove a third-degree felony against three people. There is a high probability that some of the medical records obtained in the search could help establish criminal cases involving far more serious crimes by at least a few of these patients. If law enforcement were using a prosecution of a minor offense in order to obtain otherwise unavailable, confidential information to prosecute other defendants, that would raise significant issues.

But that specter is not a legal justification to prevent the State from having any access to the medical records in the investigatory materials that it seized under what remains a lawful warrant. Clearly, a defendant in a subsequent criminal action could file a motion to suppress on this theory. On remand, these considerations may warrant limits on the nature and extent of the State’s access to these records, but they are not a basis to seal the records on a theory that the deputy needed probable cause as to each patient when the records were seized in this context.

V. LIMBAUGH AND MULLIS

We reject the trial court’s conclusion that this court’s decision in Mullís, 79 So.3d 747, prevented the trial court from following the law established in Limbaugh, 887 So.2d 387, and Rattray, 903 So.2d 1015. In Mullís, this court considered a case in which a law enforcement officer simply contacted doctors’ offices during its investigation to determine whether a suspect was obtaining controlled prescription drugs from multiple doctors. 79 So.3d at 749-50. The law enforcement officer never even attempted to obtain a search warrant. The officer’s contact pressured the staff at the doctors’ offices, perhaps unintentionally, to violate their nondisclosure requirements under section 456.056(7), which provides in pertinent part:

(6) Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information....
(7)(a) Except as otherwise provided in this section ... such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

Section 456.056(7) does not prevent an ordinary citizen from exercising his or her First Amendment right to call a doctor’s office seeking information about a patient. Instead, it bars the doctor’s office from giving out that information. Mullis, 79 So.3d at 752-53, essentially concludes that law enforcement officers are not free to use their indicia of authority to pressure or cajole the staff at medical offices to violate this statute. As we later explained in Ruilova v. State, 125 So.3d 991, 993 (Fla. 2d DCA 2013), the violation described in Mullís, 79 So.3d 747, concerned investigatory material that probably never would have been admissible at trial. Whether the violation would actually lead to suppression of admissible evidence at a trial is still an open question in this district. The Fourth District has suppressed physical evidence obtained in violation of section 456.056(7) in a doctor shopping ease. See State v. Sun, 82 So.3d 866, 874 (Fla. 4th DCA 2011). However, the evidence was not obtained by a search warrant. Id. at 868.

In Limbaugh, 887 So.2d 387, the Fourth District considered another case of doctor shopping. In that case, after obtaining information from pharmacies, the police obtained a warrant to seize the suspect’s medical records. Id. at 389-90. The Fourth District expressly held that the “State’s authority to seize such records by a validly issued search warrant is not affected by any right of privacy in such records.” Id. at 389. Thus, it is clear that the outcome in Sun, 82 So.3d 866, would have been different if law enforcement had used a search warrant in that case.

In Limbaugh, 887 So.2d at 389-90, the records sought were those of the suspect. The trial court in this case questioned whether that holding would apply in a case where the records were those of third parties. Id. at 396. The Fourth District itself extended the holding in Limbaugh to a case that is similar to this case in Rat-tray, 903 So.2d 1015. We agree with the reasoning and the outcome in Rattray, 903 So.2d at 1018-19 (holding that third party patients’ privacy rights need to be balanced against the State’s need to conduct criminal investigations).

It should be noted that the exception in section 456.057(7)(a)(3) concerns the use of a subpoena “[i]n any civil or criminal action.” This case, as well as Limbaugh and Rattray, represent situations in which no civil or criminal case was pending when the search warrant was issued. The case was commenced later by the filing of the information. Indeed, in the normal course, a search warrant is used prior to the commencement of a criminal proceeding so that people are not prosecuted unless the State already possesses the evidence needed to support the charge. Section 456.057(7) simply does not permit a health care provider to refuse to obey a validly issued search warrant that lawfully compels production of medical records.

YI. ACCOMMODATING THE PRIVACY RIGHTS OF PATIENTS

Having concluded that, at least on the face of the current proceedings, the State lawfully seized the medical records, the question remains whether the deputies and the assistant state attorneys are authorized to have unfettered access to these records. We conclude that the record does not permit a full answer to that question. On remand, the court should conduct an additional hearing to consider the reasonable scope of protection that should be granted to these records.

The search warrant in Rattray, 903 So.2d at 1019, expressly required that the seized medical records “be sealed pending notice to the patients and further order of the court.” The warrant in this case does not contain such a provision, although it contains the more common provision that the seized property be held by law enforcement “within the constructive custody of the court until further order of a court of competent jurisdiction.” It appears that the deputies in this case may have been attempting to duplicate the sealing method used in Rattray without an express provision in the warrant.

Once the original medical records are seized under a search warrant, they are no longer in the possession of a health care practitioner. Section 456.057 would not seem to apply directly to records in the possession of law enforcement. However, we agree with the trial court that the constitutional right of privacy in article I, section 23, of the Florida Constitution plays a role when the government seizes medical records as evidence.

The constitutional right of privacy is regarded as a fundamental right. See art. I, § 23, Fla. Const. Under the “compelling state interest standard,” if an individual possesses a legitimate expectation of privacy in the information at issue, the burden of proof is on the State to justify an intrusion on that individual’s privacy. Such a burden can be met by demonstrating that the intrusion serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. Winfield, v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So.2d 544, 547 (Fla.1985); State v. Tamulonis, 39 So.3d 524, 527-28 (Fla. 2d DCA 2010). In weighing the right of the State to prosecute Dr. Crumbley against the privacy rights of the patients, the trial court with its constructive possession of these records has power to reach a reasonable balance.

That balance is impossible to describe on the basis of this court’s record. The court would need to know with some precision what information the State needed for its prosecution. It would also need to know what information is actually contained in a typical patient record. It is unlikely that the State needs access to much of the personal information that may exist in these files. The court may conclude that it would be appropriate to appoint someone with a level of medical training as a special officer of the court to assist in the review of these records. Attempting to emulate the notice requirements in section 456.057 may be an appropriate step. From the record, the seized medical records should include records for undercover deputies who are unlikely to have any objection to the use as initial exemplars. It may be that review of records should be limited at least initially to experts for each side. It may be appropriate to appoint a public defender to serve as an advocate for the majority of patients who will be hesitant to appear in court after having been warned of possible prosecution.

In future cases involving similar medical records, the procedure followed in Rat-tray, 903, So.2d at 1016, whereby the records were immediately sealed after their seizure, would seem to be a very good idea. This case demonstrates that the magistrate issuing the warrant might be well advised to restrict the sealed records so that the records are not opened to obtain patient names and addresses until a hearing is conducted before a court of competent jurisdiction. Likewise, the law enforcement agency might be ordered to contest any subpoena for the records that it received from another agency so that the sealed records are never released without a court order.

The trial court may be correct in its concern that the deputies might have violated the privacy rights of third parties. That concern, however, is an issue that can be addressed in a civil court and does not need to be addressed in this criminal case at this stage in the proceedings.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

APPENDIX A

OFFICE OF THE STATE ATTORNEY

SIXTH JUDICIAL CIRCUIT OF FLORIDA

PASCO AND PINELLAS COUNTIES

BERNIE McCABE

State Attorney

April 02, 2012

Dear

I am an Assistant State Attorney for the Sixth Judicial Circuit of Florida. Pursuant to an investigation by the Pasco Sheriffs Office certain documents were seized from the premises of Harbour Medical Group located at 1930 Land 0' Lakes Blvd. Suite #6, Lutz, Pasco County, Florida pursuant to a lawfully obtained and executed search warrant. Among these documents were some of your medical records and prescription records.

The medical records in your file have not been reviewed, but it has been determined that probable cause exists to believe that these documents might include evidence of criminal Evidence of such criminal activity may be contained in your file and you could be a potential witness or possible target of the criminal investigation. While the investigation into Harbour Medical Group is ongoing, your cooperation could inure to your benefit and would certainly be appreciated.

Federal, State and/or Local Law enforcement and a licensed medical professional(s) will examine your records for evidence of criminal activity. Pursuant to law, you may be able to assert a right of privacy in these medical records. If you wish to object to the examining of these records, please notify the court in writing at the following address no later than April 23, 2012.

The Honorable Judge Susan L. Gardner

Sixth Judicial Circuit Court

38053 Live Oak Ave.

Pasco County Courthouse, Court Room # 106A

Dade City, FI. 33523

Judge Susan L. Gardner will be available to hear and rule on objections to the records’ review at a hearing that she has set for April 30, 2012 at 4:00 pm. If you wish to object to the records’ review in person or through an attorney, please appear at that time at the Pasco County Courthouse located at 38053 Live Oak Ave. Dade City, FI. 33523, Court Room A, at 4:00 p.m. If you cannot appear, in person or through an attorney, you may state your position by writing to Judge Susan L. Gardner at the above address.

If you must have a copy of your medical file, it may be obtained by contacting the Pasco Sheriffs Office at (800) 741-3673, Monday through Thursday, during the hours of 10:00am and 4:00pm. Any person seeking a copy of their medical file must identify him/herself to law enforcement using a driver’s license or other valid photographic identification.

Any questions you may have concerning this matter should be directed to Detective ease detective, at (800),

Sincerely,

Assistant State Attorney

      . The amended information alleges that the crimes were committed between October 14, 2010, and December 13, 2011. Section 458.3265 went into effect two weeks earlier on October 1, 2010. See ch. 2010-211, §§ 4, 14, at 2632-38, 2649, Laws of Fla. The statute was amended on July 1, 2011, in between the offense range alleged in the information. See ch. 2011-141, §§ 4, 31, at 2198-2207, 2247, Laws of Fla.

      . It is likely that the need for a privacy hearing was discussed with Judge Susan Gardner at a hearing for which we have no transcript. The record simply does not explain what prompted the filing of the document or how the hearing was set.

      . The copy of the transcript in our record is not sealed. From its content we see no reason to seal the transcript of this court proceeding.

      . Even if we concluded that the order on appeal was not appealable, these errors would permit review by certiorari. See, e.g., Limbaugh, 887 So.2d 387.

      . We emphasize that we express no opinion on the legal or factual merit of such a theory.


source: Caselaw Access Project

license: Public Domain

text:
    Jason Richard BRANSON, Appellant, v. Koren RODRIGUEZ-LINARES, Appellee.
    No. 2D12-3827.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.

      Joseph J. Registrato, Tampa, for Appellant.
    Koren Rodríguez-Linares, pro se.
   ALTENBERND, Judge.

Jason Richard Branson appeals a final judgment of injunction for protection against domestic violence without minor children that was issued for the protection of Koren Rodríguez-Linares. Ms. Rodrí-guez-Linares, in essence, alleged that she was a victim of cyberstalking. Although stalking, especially cyberstalking, may not appear intuitively to be an act of violence, for purposes of section 741.30(l)(a), Florida Statutes (2011), it is. Accordingly, we affirm the order on appeal.

The trial court entered the injunction based upon its conclusion that Mr. Bran-son stalked Ms. Rodríguez-Linares via electronic mail. The trial court found that Mr. Branson did not threaten Ms. Rodriguez-Linares but that he did stalk her “with about 300 e-mails in a month and a half.” In this appeal, Mr. Branson does not argue that the trial court erred in concluding that he had stalked Ms. Rodriguez-Linares. Rather, he argues that the domestic violence injunction must be reversed because he did not threaten Ms. Rodríguez-Linares and because she suffered no violence.

A domestic violence injunction may be entered in favor of a person who is “either the victim of domestic violence as defined in s. 741.28 or [who] has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” § 741.30(l)(a) (emphasis added). Section 741.28(2) states:

“Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

§ 741.28(2) (emphasis added).

Chapter 741 does not provide a definition for the criminal offenses listed in section 741.28(2). We thus look to the statute that proscribes stalking to determine the essential elements of that offense.

Stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks” another. § 784.048(2), Fla. Stat. (2011). Cf § 784.048(3) (aggravated stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person ” (emphasis added)).

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

§ 784.048(l)(d).

Mr. Branson primarily relies on cases in which the facts of the case in light of the language of the statute and the theory presented by the petitioner required the petitioner to prove a past act or a risk of a future act that would fall within a common definition of violence. These cases did not involve a theory that the victim had recently been the victim of an offense within the definition of “domestic violence.” Instead, the acts were relied on primarily to demonstrate the alternative theory that the petitioner was at risk of imminent danger of such violence. In Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005), for example, although there was evidence of “harassing phone calls,” the petitioner apparently did not attempt to prove that the calls arose to the level of a stalking offense. Thus, the injunction against domestic violence could not be issued based on the nonthreatening telephone calls. In Giallanza v. Giallanza, 787 So.2d 162, 163-65 (Fla. 2d DCA 2001), this court held that an injunction could not be extended based on proof of “general harassment.” Although we stated that “[t]he statutory definition of ‘domestic violence’ requires some showing of violence or a threat of violence,” id. at 165, the opinion did not examine the offense of stalking as an act of domestic violence. In Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011), the First District concluded that the former husband’s attempt to snatch papers out of the former wife’s hands, without touching her, while at their child’s school was insufficient to support the injunction. The court explained: “the law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction.” Id. at 292. In Gustafson v. Mauck, 743 So.2d 614, 615-16 (Fla. 1st DCA 1999), the First District reversed a domestic violence injunction where the petitioner’s evidence included proof of “apparently innocuous” telephone calls. It is clear from the opinion that the calls were insufficient to establish stalking. Thus, the petitioner in Gustafson was relying on the calls not to prove recent stalking as a completed act of domestic violence, but rather to establish that “she was in imminent danger of violence at Mr. Gustafson’s hands.”

We have no disagreement with any of these cases. For most of the offenses delineated in the definition of “domestic violence” the offense is an act of “violence” as that term is used in ordinary parlance. But the statute plainly permits the entry of an injunction for a person who is the victim of “stalking.” Thus, proof of recent stalking can be sufficient to establish the act of “violence” required for the issuance of a section 741.80(l)(a) domestic violence injunction. See, e.g., Steven Scott Stephens, “Injunction for protection — Stalking,” in Fla. Family Law § 14:14 (23 West’s Fla. Practice Series 2012 ed.). Cf. § 784.0485(1), Fla. Stat. (2012) (providing for civil injunctive relief for protection against stalking or cyberstalking). If such an act of violence is sufficiently established and if it is between “family or household member[s]” as defined in section 741.28(3), the petitioner is not also required to demonstrate reasonable cause to believe that he or she is in imminent danger of becoming the victim of any future act of domestic violence.

Admittedly, there is some ambiguity in the final words of the definition of “domestic violence.” If stalking were a qualifying offense only if it resulted in physical injury or death, then Ms. Rodríguez-Linares would not have proven her case. The statutory definition of “domestic violence” quoted in this opinion ends: “or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” As we read it, the final qualification, “of one family or household member by another family or household member,” applies to all of the offenses delineated in the definition. That is the language that makes the violence “domestic.” We do not read “resulting in physical injury or death” to apply to any of the delineated offenses. Instead, we read it to apply only to the nonspecific provision for “any criminal offense.” Thus, at least some of the offenses delineated in the statute, such as assault, battery, kidnapping, false imprisonment, aggravated stalking, and stalking, do not need to result in physical injury or death to qualify as acts of domestic violence. But see Brown v. State, 21 So.3d 108 (Fla. 4th DCA 2009) (using a more restrictive definition of “domestic violence” for the application of the domestic violence multiplier in criminal sentencing).

Affirmed.

NORTHCUTT and LaROSE, JJ., Concur.

      . The only case relied upon by Mr. Branson that actually addressed cyberstalking concluded that the subject acts did not fall within the definitional language of the offense that is set forth in section 784.048(l)(d). See Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012) (reversing a domestic violence injunction, the court explained that Ms. Young’s "acts ..., which consisted of changing her husband’s password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyber-stalking, because they were not electronic communications by her of 'words, images, or language ... directed at' Mr. Young”).

      . Although not cited by Mr. Branson, we note the Fourth District's recent decision in Stone v. Stone, 128 So.3d 239 (Fla. 4th DCA 2013), in which the court reversed an injunction where, among other allegations, there was evidence of numerous text messages and telephone calls. It does not appear that the petitioner argued that she was a victim of stalking. We express no conflict with that case because we are not convinced that the case was litigated as a request for an injunction based on a recent offense of stalking, the elements of which might not have been provable under the facts of the case.

      . Cf. § 784.046(l)(a) (providing that “violence” in the context of actions for injunctions for protection based on repeat violence, sexual violence, or dating violence means “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person”).


author: DAVIS, Chief Judge.

text:
    Nicholas R. BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4970.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.

      Howard L. Dimmig, II, Public Defender, and Maggie Jo Hilliard, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Nicholas Bishop challenges the order of restitution entered after he pleaded no contest to burglary of an unoccupied dwelling. The trial court sentenced him to fifteen years of probation and subsequently ordered him to pay $8000 in restitution as a condition of probation. However, Bishop was not present at the restitution hearing, and our record does not show that he voluntarily waived his right to be present at the restitution hearing. We therefore reverse the order of restitution and remand for the trial court to hold a new restitution hearing at which Bishop has the right to be present.

The record before us indicates that counsel for Bishop’s codefendant and the State appeared at the restitution hearing but that neither Bishop nor his counsel were present. The prosecutor informed the court that based on a secretarial notation, he believed that notice to Bishop and his counsel was effectuated by an email to Bishop’s counsel. There was also a notation in the trial record that counsel was provided with notice of the hearing. Based on this information, the trial court proceeded with the hearing, at which the victim testified about the amount of cash taken from him during the burglary and a restitution amount was set.

Bishop argues on appeal that the trial court erred by proceeding with the hearing in his absence. The State, however, asserts that under these facts, the notice provided to Bishop’s counsel was sufficient to allow the trial court to proceed with the restitution hearing in the absence of Bishop and his counsel.

The State is correct that the record contains sufficient evidence from which the trial court could conclude that notice of the hearing was effectuated on Bishop’s attorney and consequently effectuated on Bishop constructively. Under these facts, Bishop’s counsel could have appeared at the hearing and represented Bishop’s interests. “A defendant may waive this right and exercise constructive presence through counsel, but the court must conduct the proper inquiry before the proceedings commence to ‘determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary.’” C.C.N. v. State, 1 So.3d 1151, 1152 (Fla. 2d DCA 2009) (quoting M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006)). The State has the burden to show the voluntary nature of the defendant’s waiver, and such burden exists regardless of whether notice is at issue or whether defendant’s counsel is present at the hearing. See, e.g., Pierce v. State, 133 So.3d 1186, 1187-88 (Fla. 2d DCA 2014). Thus, even if Bishop’s counsel had appeared before the trial court at the hearing in the capacity of constructively representing Bishop’s interests, the trial court still would have been required to determine the knowing, intelligent, and voluntary nature of Bishop’s absence before proceeding. See id.; M.W.G., 945 So.2d at 600. And the fact that Bishop’s counsel received notice but failed to appear at the hearing does not negate the State’s burden of establishing Bishop’s waiver in this regard.

Because it was error for the trial court to proceed in Bishop’s absence when the State did not meet its burden of proving that Bishop knowingly, intelligently, and voluntarily waived his right to be present, we reverse the order of restitution and remand for the trial court to conduct a new restitution hearing at which Bishop has the right to be present.

Reversed and remanded.

VILLANTI and SLEET, JJ„ Concur.

      . Bishop entered a consolidated plea to two counts of burglary of an unoccupied dwelling that were charged in two separate circuit court cases. The restitution order being challenged in this appeal was entered in circuit court case 2012-CF-001979 and addressed the losses suffered by the victim in that case only.

      . The State acknowledges that due to Bishop’s incarceration at the time of the hearing, his presence required the State to assist in transporting him to the hearing. The State also acknowledges that the record does not indicate that the trial court or the State was aware of or addressed Bishop’s incarceration during the notice discussion that occurred at the restitution hearing.


author: MORRIS, Judge.

text:
    In the Interest of J.S., a child. Guardian Ad Litem Program, Petitioner, v. Department of Children and Families, D.B., and W.S., Respondents.
    No. 2D14-1685.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.

      Laura E. Lawson, Sanford, for Petitioner Guardian ad Litem Program.
    Stephanie C. Zimmerman, Children’s Legal Services, for Respondent Department of Children and Families.
    No appearance for Respondents D.B. and W.S.
   MORRIS, Judge.

The Guardian ad Litem Program (GAL) petitions for a writ of certiorari directed at the circuit court’s order modifying placement of J.S. subsequent to his adjudication of dependency. Because there is no indication that the circuit court considered whether the modification of placement was in the best interest of the child, we grant the petition.

I. Background

J.S. was sheltered shortly after birth due, in part, to allegations of the birth mother’s substance abuse; he was adjudicated dependent in August 2012. J.S. has been residing with his current foster parents for a year. In November 2013, a modification of placement hearing was conducted and the maternal grandmother requested that J.S. be placed with her. Although there was testimony regarding the grandmother’s home study, visitation with J.S., and her desire to assist in J.S.’s therapy, the birth mother opposed placement with the grandmother. Despite the birth mother’s opposition, the case manager opined that it would be in J.S.’s best interest to be placed with the grandmother. However, the circuit court disagreed, finding that a modification of placement was not in J.S.’s best interest because there had been an insufficient pattern of visitation. The circuit court instead ordered weekly unsupervised visitation with the grandmother along with the requirement that she submit to random monthly drug screens.

In March 2014, the Department of Children and Families (DCF) served a notice of hearing for judicial review along with the social study/case plan update. In the case plan update, the case manager again recommended that J.S. be placed with the grandmother. At the hearing, the case manager opined that it was DCF’s position that J.S. should be placed with the grandmother. The circuit court treated this statement as an ore tenus motion to modify placement. No witnesses were sworn. However, the case manager reported positively on the status of the grandmother’s visitation with J.S. and noted that the grandmother had passed all of the random drug screens. Counsel for J.S.’s birth mother explained that the birth mother had changed her mind and now supported the placement of J.S. with the grandmother; the only explanation provided was that the birth mother and the grandmother had repaired their relationship. The GAL objected to a modification of placement until the court had received J.S.’s comprehensive assessment. However, without addressing whether a modification of placement was in J.S.’s best interest, the trial court orally ordered that J.S. be placed with the grandmother.

The GAL then filed a motion for rehearing, arguing that it had not been aware that the hearing would address a modification of placement and that the GAL therefore wanted the opportunity to present evidence on the issue of whether the grandmother could meet J.S.’s special needs and the issue of J.S.’s bond with the foster parents. The GAL argued that the circuit court erred by ordering the modification without considering J.S.’s best interest. The circuit court denied the motion and denied a motion for stay. The GAL sought and obtained a stay of the order in this court pending the outcome of this proceeding.

II. Analysis

In its petition, the GAL argues that the circuit court departed from the essential requirements of law by failing to determine whether the modification of placement was in J.S.’s best interest. The GAL maintains that this error will result in irreparable harm due to J.S.’s special needs and his current placement in a long-term, stable environment.

In response, DCF asserts that section 39.522(1), Florida Statutes (2013), while requiring the circuit court to consider the child’s best interest, does not mandate that a circuit court make an express finding on that factor. However, DCF concedes that there is no indication either in the circuit court’s oral ruling or in the written order that the circuit court did, in fact, consider J.S.’s best interest prior to modifying his placement.

Section 39.522(1) provides that “[t]he standard for changing custody of the child shall be the best interest of the child.” A circuit court departs from the essential requirements of the law where it fails to consider the child’s best interest before modifying placement. See Guardian Ad Litem Program v. R.A., 995 So.2d 1083, 1084 (Fla. 5th DCA 2008); see also I.B. v. Dep’t of Children & Families, 876 So.2d 581, 586 (Fla. 5th DCA 2004) (concluding that trial court erred by refusing to consider child’s best interest before changing placement from foster parents to relatives).

Our review of the transcript from the March 2014 hearing reflects that the circuit court failed to make any findings related to J.S.’s best interest. Further, the written order fails to include a finding that modifying J.S.’s placement by removing him from the care of the foster parents and placing him with the grandmother was in his best interest. There is simply nothing before us which evidences the circuit court’s consideration of that statutory factor. Consequently, we must grant the GAL’s petition.

Petition granted; order quashed.

KHOUZAM and SLEET, JJ., Concur.

      . J.S. has cerebral palsy and, as a result, has special needs that require daily therapy.

      . The birth mother alleged that the grandmother had a substance abuse issue and that the grandmother abused her (the birth mother) when she was a child.


author: PER CURIAM.

text:
    Robin Ray MARCHETTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-62.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.
   PER CURIAM.

The order striking Robin Ray Marchet-ti’s motion for jail credit as untimely is reversed, as the motion was timely filed. See Fla. R. Crim. P. 3.801(b) (“For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.”). Therefore, we remand for reconsideration of the motion.

Reversed and remanded.

NORTHCUTT, KHOUZAM, and BLACK, JJ., Concur.

      . When the postconviction court entered its order in November 2013, the rule had not yet been amended to extend the filing limit for defendants whose sentences became final before July 1, 2013. See In re Amendments to the Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013); see also Calderon v. State, 138 So.3d 589 (Fla. 2d DCA 2014).


text:
    Demetrice Armicle McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6875.
    District Court of Appeal of Florida, First District.
    July 30, 2014.

      Nancy A. Daniels, Public Defender, Diana L. Johnson and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In McNeal v. State, 140 So.3d 991 (Fla.2014), the Florida Supreme Court quashed this court’s opinion in McNeal v. State, 109 So.3d 268 (Fla. 1st DCA 2013), to the extent it affirmed the trial court’s decision to allow the State to publish the Victim’s handwritten statement pursuant to the past-recollection recorded exception to the hearsay rule. The supreme court remanded “for reconsideration in light of [its] decision in Polite [v. State, 116 So.3d 270 (Fla.2013)], and a proper harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), if applicable.” McNeal, 140 So.3d at 992.

Pursuant to Polite, we are constrained to hold that the trial court erred by allowing the State to publish the Victim’s written statement, because the Victim did not “vouch for its accuracy or correctness.” Polite, 116 So.3d at 279. Thus, the question we must answer is whether the error was harmless.

The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.
... The unique function of the harmless error rule is to conserve judicial labor by holding harmless those errors which, in the context of the case, do not vitiate the right to a fair trial and, thus, do not require a new trial.

DiGuilio, 491 So.2d at 1135 (citation omitted).

Although, in our view, even absent the Victim’s written statement, the State presented sufficient evidence of Appellant’s guilt, this is not sufficient to satisfy the stringent DiGuilio standard that, beyond a reasonable doubt, the erroneous admission of the statement did not contribute to Appellant’s conviction. At trial, a major focus of the State’s questioning of both the Victim and the investigating law enforcement officer was the written statement. This could reasonably have led the jury to place significant weight on the statement, particularly with respect to identifying Appellant as the Victim’s assailant.

For the foregoing reasons, we REVERSE Appellant’s conviction and sentence, and REMAND for a new trial.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: WARNER, J.

text:
    Dalia DIPPOLITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2628.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Rehearing Denied Aug. 27, 2014.

      Andrew B. Greenlee, Robert L. Sirianni, Jr. and Michael M. Brownlee of Brownstone, P.A., Winter Park, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for appel-lee.
   WARNER, J.

Dalia Dippolito appeals her conviction for solicitation to commit first degree murder with a firearm. She argues the trial court erred by denying her request to individually question prospective jurors about their exposure to pretrial publicity about her case, and by denying her request to strike the entire jury venire after all the jurors heard an allegation that appellant had attempted to poison the victim in this case. We agree and reverse. We affirm as to the remaining issues without further comment, as they were either not error or not properly preserved.

Background

In the late summer of 2009, appellant’s lover approached the Boynton Beach Police Department and reported that appellant was planning to kill her husband. An investigation ensued, during which police videotaped incriminating meetings between appellant and her lover, as well as between appellant and a purported hit man, who was in reality an undercover officer. The hit man agreed to shoot and kill appellant’s husband in their home and make the killing look like part of a burglary.

Subsequently, police staged a fake crime scene at appellant’s home and informed her that her husband had been killed in the manner described by the hit man. Appellant’s reaction was videotaped by the police and by the television show “Cops,” which was then filming the Boynton Beach Police Department. Appellant was subsequently taken to the police station and interviewed. The police eventually told appellant that her husband was alive and revealed the hit man was an undercover officer. Appellant maintained her innocence.

She was charged with solicitation to commit first degree murder with a firearm. The case generated considerable pretrial publicity. She pled not guilty, and a ten-day jury trial was held in late April and early May of 2011.

Prior to trial, on March 30, 2011, appellant moved to individually question prospective jurors about their exposure to pretrial publicity. Appellant alleged the case had “received a great deal of national attention and publicity and has been reported on a variety of national media shows[.]” She alleged that, due to unspecified public comments by her husband’s divorce attorneys, she had sought a gag order in the parties’ divorce proceedings in late August 2010. She also reported that the Boynton Beach Police Department had uploaded to YouTube the videos of appellant taken during the investigation. She tallied the number of views the videos had received to date and alleged they had been “played nationally, locally on the internet and on nationally produced television shows[.]” These included the Today Show, Good Morning America, CNN, and CBS News. The trial court denied the motion but noted appellant could re-raise the issue at jury selection.

Appellant renewed her motion on the first day of jury selection. Her counsel asserted several new newspaper articles had appeared in the prior forty-eight hours, which had “liken[ed] this case or compare[d] it to Scott Peterson or Martha Stewart or Michael Jackson,” and had “implied] that this is some sort of slam dunk by the State[.]” The court again denied the motion, but noted questioning might “evolve into individual voir dire” depending on “[the] venire’s knowledge of the case[.]”

The court read prospective jurors a brief description of the charges, which had been agreed upon by the parties, and asked jurors for a show of hands as to who had heard of the case. Many indicated they had: the court commented there were “a lot of hands,” and appellant’s later motion for new trial alleged that twenty-eight of the fifty-four prospective jurors raised their hands. The court asked whether any juror had “some strong feelings that would be difficult to overcome and give either the State a fair trial or the Defense a fair trial.” No hands were raised.

When it was appellant’s turn to question the jurors, she again requested individual voir dire, concerned that asking individual jurors about the media reports could lead to contamination of the entire jury pool. The court commented that none of the jurors “held any strongly held opinions on the merits of the case” and opined, “I don’t think it’s necessary for you to say, hey, tell me everything you heard about this case.... [Tjhat’s going to lead to more problems than it’s going to solve.” Appellant argued she had the right to ask jurors what, specifically, they had heard about the case, and the court eventually agreed she could do so. However, the court ruled it would “[n]ot yet” allow individual questioning.

As appellant proceeded to question the jurors about their knowledge of the case, the jurors freely recounted what they had heard and seen on the news. One juror mentioned “an allegation that [appellant] had tried to poison her husband with antifreeze. That was in the Palm Beach Post.” The trial court had already ruled that allegation inadmissible at trial. Therefore, appellant moved to strike the jury panel and for a mistrial. The court denied both requests.

The case proceeded to trial, after which the appellant was convicted of attempted first degree murder with a firearm. The court sentenced her to twenty years in prison. She then filed this appeal.

Refusal To Conduct Individual Voir Dire and To Strike Jury Panel

Appellant claims that the court erred in refusing individual voir dire and in failing to strike the jury panel after it had heard inadmissible bad acts evidence from one of the jurors. This is dispositive of the appeal. We conclude that the court erred in refusing to allow individual voir dire questioning and in failing to strike the jury pool.

The denial of a motion to strike the jury panel is reviewed for an abuse of discretion. Williams v. Osking, 105 So.3d 653, 655 (Fla. 4th DCA 2013). Likewise, “a trial court has broad discretion in deciding whether prospective jurors must be questioned individually about publicity the ease has received.” Bolin v. State, 736 So.2d 1160,1164 (Fla.1999).

Three Florida Supreme Court cases control the disposition of this case: Boggs v. State, 667 So.2d 765 (Fla.1996), Bolin v. State, 736 So.2d 1160 (Fla.1999), and Kessler v. State, 752 So.2d 545 (Fla.1999). In Boggs and Bolin, the defendants’ initial convictions and death sentences were reversed and, just before jury selection in the retrial, local newspapers published inadmissible and prejudicial information about the first trial. Boggs, 667 So.2d at 766; Bolin, 736 So.2d at 1161-63. Similarly, in Kessler, on the day of jury selection a newspaper article published inadmissible and prejudicial information about the defendant’s federal conviction for the same crime and stated he was being investigated for unsolved murders. 752 So.2d at 551.

In Boggs, the court held,

[Bjecause of the timing and content of the newspaper articles and the statements made by these prospective jurors that they had read newspaper articles and had formed opinions about the case, individual voir dire examination of these
prospective jurors was compelled. Through individual voir dire, the trial court could have determined the extent of the prospective jurors’ knowledge of the newspaper articles and evaluated whether their preformed opinions could be set aside. This procedure would have also protected the remainder of the venire from any potential contamination resulting from this questioning.... [W]e find that the trial court abused its discretion by not allowing further individual inquiry of the two prospective jurors who could not unequivocally state that they could not set aside their preformed opinion as to Boggs’ guilt and base a verdict solely on the evidence presented

667 So.2d at 768. Bolin appears to expand on Boggs, holding that even where the jurors had not formed opinions based upon media reports, individual voir dire was still required:

Even though these jurors, unlike the challenged prospective jurors in Boggs, stated during voir dire that they had formed no opinions as to Bolin’s guilt, there was no individual voir dire with specific questions concerning the jurors’ knowledge of newspaper articles containing inadmissible and prejudicial information. Thus, defense counsel, the trial judge, and this Court are left to speculate about what these jurors had learned from these newspaper accounts. In Reilly v. State, 557 So.2d 1365 (Fla.1990), we found the same type of publicity concerning inadmissible information to be so prejudicial that even a prospective juror without a preformed opinion should not be allowed to serve on a jury after exposure to the publicity. Id. at 1367.

Bolin, 736 So.2d at 1164-65.

Relying on a federal case which held that “simply asking members of the jury venire to indicate by a show of hands whether the publicity would impair their ability to render an impartial decision did not adequately protect the defendant’s constitutional rights,” Bolin held, “the preferred approach for Florida trial courts is to conduct individual and sequestered voir dire of prospective jurors whenever, as in Boggs, ‘the timing and content’ of pretrial publicity creates the probability that prospective jurors have been exposed to prejudicial information that will not be admissible at trial.” Id. at 1165 (relying on Cummings v. Dugger, 862 F.2d 1504, 1507-08 (11th Cir.1989)). However, the court noted that exposure to prejudicial information “might not require disqualification of prospective jurors if this information were going to be introduced into evidence.” Id. at 1165.

In Kessler, one venire member admitted having read the prejudicial article about the defendant in its entirety, and sat on the jury after Kessler’s for-cause challenge was denied. 752 So.2d at 550. Even though this juror had stated during questioning that he had not formed an opinion and could be fair, the supreme court found that the denial of individual voir dire

prevented defense counsel from developing an accurate picture of the impact of the article on juror Mengel, for had counsel attempted to do so the information would have been broadcast to the entire venire. Defense counsel, for instance, was unable to gauge the following: Whether Mengel had focused closely on the article when he read it; whether he had understood and absorbed the details of the article; whether he had found the article credible; and whether he had experienced a gut-level reaction to the article.
The State contends that it is enough that Mengel averred that he possessed an open mind and could render a fair verdict based solely on the evidence presented at trial. We disagree.

Id. at 551. Although Boggs had noted that exposure to pretrial publicity was not enough, in and of itself, to raise a presumption of unfairness, citing Bundy v. State, 471 So.2d 9 (Fla.1985), Kessler distinguished Bundy as addressing “a motion for change of venue — not a dismissal [of a juror] for cause” and found “[t]he practical and policy considerations underlying these two issues are vastly different.” Kessler, 752 So.2d at 552.

In sum, Bolin and Kessler hold that, where inadmissible and prejudicial information about the case has recently been published in the media, the trial court abuses its discretion if it does not permit individual voir dire of jurors exposed to such publicity. Bolin, 736 So.2d at 1165; Kessler, 752 So.2d at 552. They hold there is an abuse of discretion even if the venire members exposed to the publicity testify, per a show of hands, that they have not formed an opinion and can be impartial. Bolin, 736 So.2d at 1164-65; Kessler, 752 So.2d at 550-52. Thus, the state’s argument in this case that there was no abuse of discretion because no juror who had formed an opinion sat on the jury is without merit.

Under the Boggs/Bolin/Kessler standard, while the trial court may not have abused its discretion in denying the pretrial request for individual voir dire, it did abuse its discretion in denying the appellant’s later, renewed request for individual voir dire to determine each juror’s knowledge of the media reports. Further, the court abused its discretion in denying the motion to strike the panel when a juror revealed inadmissible prior bad acts of appellant.

The pretrial motion requesting individual voir dire cited to media reports which appeared to have aired more than six months before the motion was filed. Although appellant later complained of more recent stories, she failed to specifically identify, in either her written pretrial motion or her renewed motion prior to questioning the jurors, any prejudicial, inadmissible information that had been reported in the media. See Kessler, 752 So.2d at 551 (individual voir dire should have been allowed where article appearing on second day of voir dire stated the defendant was serving a federal sentence for the same crime); Bolin, 736 So.2d at 1162-63 (individual voir dire should have been allowed in retrial where multiple articles published within a few days of jury selection recounted inadmissible information from the defendant’s first trial for the offense). Because the media reports were not recent and did not, as described by appellant, convey inadmissible evidence, individual voir dire was not mandated from the start.

Moreover, much of the evidence contained in the media reports would later be admitted as evidence at trial. The YouTube videos of appellant were admissible and, indeed, were later played at trial. Thus, exposure to these videos would not necessarily have required disqualification of prospective jurors. See id. (exposure to prejudicial information “might not require disqualification of prospective jurors if this information were going to be introduced into evidence”). When individually questioned, jurors who indicated they could not be fair because they had seen the videos were stricken and did not sit on the jury. Appellant failed to identify any other prejudicial information to which prospective jurors could have been exposed. She mainly objected to the tone of the media coverage, which she believed implied her guilt. On this record, we cannot say the trial court abused its discretion by denying the motion for individual, sequestered voir dire prior to jury selection.

However, this trial shows why individual voir dire should have been conducted once it became apparent that a multitude of prospective jurors had been exposed to pretrial publicity. Appellant had the right to ask these jurors what specific information they had learned from the media; the jurors’ show of hands was insufficient to protect her right to a fair and impartial jury. See Bolin, 736 So.2d at 1164-65; Kessler, 752 So.2d at 551-52. The trial court’s refusal to allow appellant to do so on an individual basis posed the danger that one juror’s response could taint the entire panel. This is, in fact, what occurred when one juror mentioned the poisoning allegation. We thus find that the trial court abused its discretion when appellant renewed her request to individually voir dire the jurors on the media coverage during her counsel’s opportunity to question the jurors. See Bo-lin, 736 So.2d at 1164-65; Kessler, 752 So.2d at 551.

The trial court then erred by failing to strike the jury panel after all the jurors had heard the poisoning allegation. Because it involved an attempt to kill the same victim, it was closely related to the pending charges and could have prejudiced jurors in rendering their verdict. Even though appellant had not been formally charged with a crime based on the alleged poisoning, we find the comment analogous to comments informing prospective jurors of a defendant’s criminal history, other pending charges, or arrests. See Evans v. State, 36 So.3d 185, 186 (Fla. 4th DCA 2010); Holt v. State, 987 So.2d 237, 239 (Fla. 1st DCA 2008); Wilding v. State, 427 So.2d 1069,1069 (Fla. 2d DCA 1983).

The state argues any error was harmless “[i]n light of the video evidence of Appellant soliciting the undercover officer to kill her husband[.]” Yet the harmless error test “does not re-weigh the sufficiency of the evidence but focuses on how the error affects the trier of fact.” Holt, 987 So.2d at 240. Here, we cannot conclude that this error was harmless beyond a reasonable doubt “because of the possibility that jurors were unfairly prejudiced by their knowledge” of this closely related allegation. Id. (finding error was not harmless because “[jjurors could have assumed that because Appellant was charged with another robbery, he was the perpetrator of the robbery being tried as well”); see also Jackson v. State, 729 So.2d 947, 951 (Fla. 1st DCA 1998) (finding error was not harmless “because of the possibility that the jury panel was unfairly prejudiced by virtue of their knowledge of his arrest for other crimes”). We note that, if this type of evidence had been improperly introduced at trial, it would have been presumed harmful. See Kopsho v. State, 84 So.3d 204, 212 (Fla.), cert denied, — U.S. -, 133 S.Ct. 190, 184 L.Ed.2d 97 (2012). Accordingly, appellant was deprived of an impartial jury, and we reverse appellant’s conviction and remand for a new trial.

Reversed and remanded for a new trial.

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

      . Contrary to the state's assertion on appeal, the state had not merely agreed to refrain from introducing this evidence; the trial court had ruled it inadmissible in a pretrial order dated April 20, 2011.


author: SCALES, J.

text:
    Pierre PHILIPPE, Appellant, v. Michael WEINER, M.D., P.A. Sharing Plan, Appellee.
    No. 3D13-597.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.

      Raven Liberty, P.A., and Raven Ramona Liberty, Miami, for appellant.
    Paul M. Kade, Miami, for appellee.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   SCALES, J.

Appellant, Pierre Philippe (Philippe), Defendant below, appeals from the trial court’s April 9, 2012, Judgment for Deficiency, awarding Appellee, Plaintiff below, Michael Weiner, M.D., P.A. Profit Sharing Plan (Weiner), prejudgment interest, unpaid real estate taxes, insurance, and costs; Philippe also appeals the trial court’s subsequent Order Denying Motions for Rehearing. We affirm in part, and, because certain expenses relating to the property were improperly charged to Philippe, and because prejudgment interest was improperly calculated, we reverse in part.

I. Facts

In February 2006, Philippe executed a balloon promissory note in the amount of $500,000, as well as a mortgage securing payment to Weiner.

Pursuant to the terms of the note, Philippe was to make monthly interest-only payments for three years, after which time the note’s $500,000 principal amount would be due. Also, pursuant to the note, interest was to accrue on any amount in default at the rate of 18%.

After Philippe defaulted on the note and mortgage by failing to pay the balloon balance, Weiner instituted mortgage foreclosure proceedings against Philippe. In consideration for concluding the mortgage foreclosure action, Philippe, as mortgagor, provided Weiner with a Deed in Lieu of Foreclosure (the Deed). The Deed was executed and delivered to Weiner on February 24, 2010.

The Deed expressly provided that the conveyance of the property did not act as a satisfaction or release of Philippe’s liability under the note, and that the obligations due to Weiner under the note would not merge with the property interest Weiner acquired under the Deed.

In October 2012, Weiner filed a complaint, alleging Philippe defaulted under the note and owed Weiner $672,768.01, less a reduction for the value of the property obtained by Weiner via the Deed. Weiner also sought unpaid taxes and insurance plus legal fees and costs.

Two appraisals were prepared to value the subject property. The first appraisal, created April 26, 2011, by C & C Appraiser, Inc. (the C & C Appraisal), appraised the property — using the effective date of March 31, 2011 — at $360,000. The C & C Appraisal was filed with the trial court on May 18, 2011. The second appraisal, created September 26, 2011, by Charles V. Failla (the Failla Appraisal), appraised the property — using the retrospective market value as of March 15, 2010—at $155,000. The Failla Appraisal was filed with the trial court on April 9, 2012.

After conducting an evidentiary hearing at which Failla testified, the trial court entered a Final Judgment for Deficiency in Weiner’s favor, finding the fair market value of the property to be $155,000, based upon the Failla Appraisal. The trial court further found support for Weiner’s claim for unpaid real estate taxes and insurance. It specified Weiner was to recover from Philippe:

[the] principal sum of the promissory note of $500,000.00, pre-judgment interest at 18% per annum from February 17, 2009[,] to April 9, 2012 (after deducting interest payments of $11,666.66 on March 27, 2009) of $281,335.00, unpaid real estate taxes of $35,923.29, insurance in the amount of $4,844.72 and costs of $6,720.00 for a subtotal of $828,823.01, less $155,000.00, for a subtotal of $673.823.01[,] plus reasonable attorney’s fees in the amount of $2,800.00, for a grand total of $676,623.01, that shall bear interest at the rate of 4.75% a year, for which let execution issue.

Philippe filed a pro se motion for rehearing, contending the Failla Appraisal was a “fraud upon the court.” Philippe later obtained counsel, who filed an amended motion for rehearing to set aside the judgment, in which counsel argued Weiner should be required to explain the $205,000 difference between the Failla and C <& C Appraisals. Philippe’s counsel later filed an addendum to his motion for rehearing, contending the promissory note did not provide for the payment of real estate taxes or insurance as items of indebtedness. The trial court denied both motions for rehearing. This appeal followed.

II. Analysis

A. Appraisals

Philippe first contends the trial court erred in determining the amount of Philippe’s indebtedness by relying upon the later-filed Failla Appraisal, which valued the property at $155,000. He urges the C & C Appraisal, with an effective date of March 31, 2011, should have been utilized because it valued the property at $360,000, resulting in less of a deficiency, ultimately entitling Weiner to a smaller judgment.

A trial court’s decision to admit into evidence an appraisal report is subject to an abuse of discretion standard. See Eagle’s Crest, LLC v. Republic Bank, 42 So.3d 848, 850 (Fla. 2d DCA 2010). To determine the trial court abused its discretion would require us to conclude the judicial action was “arbitrary, fanciful, or unreasonable.” Id. at 852.

The record reflects an evidentiary hearing took place on April 9, 2012, that both appraisals were admitted into evidence, and that Failla himself testified. However, we have not been provided with a transcript of the proceedings. We thus cannot conclude from this record that the trial court abused its discretion by relying on the Failla Appraisal. See id. at 850 (reviewing, on abuse of discretion standard, the trial court’s decision to admit into evidence a party’s expert testimony and appraisal report). See also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

B. Property Taxes and Insurance

Our inquiry, however, does not end here. We still must determine whether the trial court erred in awarding prejudgment interest, insurance, and taxes after the date the property was deeded to Weiner.

The effective date of the Deed is February 24, 2010. See Sweat v. Yates, 463 So.2d 306, 307 (Fla. 1st DCA 1984) (“[A] deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice.”)- Yet, Weiner alleged Philippe was liable to Weiner for $672,768.01, an amount which included: (1) unpaid taxes for 2010 and 2011, totaling $85,923.29; (2) insurance premiums totaling $4,844.72; plus (3) prejudgment interest (at the contractual rate of 18%) from February 17, 2009, to April 9, 2012, on the full note amount of $500,000.

We are aware of no authority that would support the trial court’s award to Weiner of insurance and taxes on the property after the date the property was deeded to Weiner. Once the Deed was signed and delivered to Weiner, Philippe no longer was obligated to pay taxes or insurance on the property.

Hence, it was error for the trial court to award any amounts to Weiner for expenses related to the property after February 24, 2010 (i.e., the date of the Deed).

C. Prejudgment Interest

With regard to prejudgment interest, it appears the trial court calculated prejudgment interest at the contractual interest rate of 18% on the full principal balloon balance due on the note (i.e., $500,000) from the date of default (February 17, 2009) through the date of entry of the judgment (April 9, 2012). This was error.

A plaintiff is entitled to prejudgment interest on his or her out-of-pocket, pecuniary losses as those pecuniary losses are liquidated by a verdict. Argonaut Ins. Co. v. May, 474 So.2d 212, 215 (Fla.1985).

Because Weiner realized the value of the property on the date of the Deed, his pecuniary losses were reduced on that date by the value of the property. For prejudgment interest purposes, the trial court should have adjusted the principal amount due on the note by subtracting the value of the property from the balloon principal on the note; the trial court should have then recalculated prejudgment interest on that adjusted principal amount. Hence, Weiner was entitled to prejudgment interest, at the contractual rate of 18%, on his pecuniary losses of $500,000 (the full principal balloon balance) from the date of default (February 17, 2009), through the date of the Deed (February 24, 2010). From February 25, 2010, until the date of entry of the judgment (i.e., April 9, 2012), however, Weiner was entitled to prejudgment interest, at the contractual rate of 18%, on his pecuniary losses of $345,000 (i.e., the difference between the $500,000 full principal balloon balance due on the note, and the $155,000 valuation of the property deeded to Weiner on February 24, 2010).

III. Conclusion

We affirm the trial court’s final judgment insofar as it relied on the Failla Appraisal as a basis to value the subject property. We reverse the final judgment insofar as it awards unpaid real estate taxes and insurance beyond the effective date of the Deed. We also reverse the calculation of prejudgment interest. We remand with instructions that the trial court recalculate the judgment in accordance with this opinion.

Affirmed in part, reversed in part, and remanded with instructions consistent herein.

      . The Deed was recorded March 15, 2010.


text:
    Antonio OTERO, Appellant, v. Gilberto GOMEZ, III, Appellee.
    No. 3D13-936.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.

      Maria L. Rubio, P.A., and Maria L. Ru-bio, Miami, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole, Miami, for appellee.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Appellant, Antonio Otero, Plaintiff below, appeals from the trial court’s March 13, 2013, Order Granting Defendant’s Motion in Limine and Amendment to Motion in Limine, and March 26, 2013, Final Judgment. Because the trial court effectively granted Defendant-Appellee Gilberto Gomez, Ill’s (Gomez) untimely motion for summary judgment, we reverse and remand for further proceedings.

I. Facts

In December 2011, Otero filed a complaint for injuries he sustained after being hit by a car while riding his bicycle. Otero rode along a sidewalk and into a crosswalk when he was hit by a car pulling into the intersection. Otero alleged that his view of oncoming traffic was obstructed by a wall, which had, years before, been constructed on Gomez’s property.

The wall was built by the developer of the area and then altered without permits by the prior owner. Otero contended the wall constituted a dangerous condition and that Gomez was negligent for either creating the condition or allowing the condition to exist.

Otero sought to introduce the expert witness testimony of Richard E. Cabrera. Cabrera was going to testify at trial that the wall on Gomez’s property obstructed a “sight triangle,” and that the wall’s obstruction of drivers’ lines-of-sight violated certain county ordinances and Florida Department of Transportation (FDOT) standards.

On February 15, 2013, Gomez timely filed a motion in limine to exclude Cabrera’s testimony. Gomez argued that any evidence concerning county ordinances, “sight triangles,” and property violations, was not relevant because Gomez owed no duty to Otero under Williams v. Davis, 974 So.2d 1052 (Fla.2007).

Four days after filing his motion in li-mine — on February 19, 2013 — Gomez filed a motion for summary judgment, again relying on Williams. Gomez argued that, because the wall on his property did not extend into the public right-of-way, he owed no duty to Otero, and, therefore, could not be liable as a matter of law. The record is devoid of any notice of hearing on the motion for summary judgment.

During the pretrial conference on February 21, the trial court informed Gomez that his motion for summary judgment would not be heard before trial.

On February 27, only days before the commencement of trial, Gomez amended his previously-filed motion in limine. The amended motion sought an order excluding the introduction of any evidence regarding FDOT design standards and contained the same arguments as did the motion for summary judgment. Essentially, Gomez argued he owed no duty to Otero and could not “be liable as a matter of law, for an alleged obstruction which exists entirely on his property and does not protrude into the public right-of-way.”

Prior to the trial commencing, on March 5, the trial court heard the parties’ pretrial motions, including Gomez’s motion in limine and Gomez’s amended motion in limine. Gomez’s counsel argued that, because the wall at issue was entirely within the boundaries of Gomez’s property, Gomez owed no duty to Otero. Notably, while Gomez’s counsel sought to have the case dismissed by the trial court at the “motion in limine stage,” neither of Gomez’s motions in limine requested, as relief, that the case be dismissed; the motions merely sought orders excluding evidence which Gomez argued was not relevant.

Indeed, on several occasions, the trial court queried, “Shouldn’t this be a motion for directed verdict?” At the conclusion of the hearing, the trial court reserved ruling on Gomez’s motions in limine and voir dire began.

The following morning, on March 6, the trial court announced, “I’m ready to rule on the motion in limine on the issue of duty.” It proceeded:

After reading Williams ... I find that there is no duty on behalf of the homeowner to the public when the property— when the wall is in his property, within his boundaries. I don’t want to make that ruling, but in good conscience, I have no choice.

Your motion is granted.

Gomez’s counsel then moved, ore tenus, to dismiss the complaint, and the trial court granted the motion and cancelled the trial. On March 13, the trial court entered an order granting Gomez’s motions in li-mine. Subsequently, a final judgment was entered March 26, in favor of Gomez. This appeal followed.

II. Analysis

The issue before us is whether the trial court erred in effectively granting a motion for summary judgment under the guise of a motion in limine.

Pursuant to Florida Rule of Civil Procedure 1.510(c), a party moving for summary judgment must serve its motion on the adverse party at least twenty days prior to the time specified for the hearing on the summary judgment motion.

The record reflects Gomez filed his motion for summary judgment on February 19, fourteen days prior to the March 5 commencement of trial when the trial court essentially conducted the unnoticed hearing on Gomez’s summary judgment motion. Gomez violated the requisites of Rule 1.510(c) by failing to notice and set the motion for hearing at least twenty days after the filing of the summary judgment motion. See Brock v. G.D. Searle & Co., 580 So.2d 428, 430 (Fla. 1st DCA 1988) (“It is reversible error for a trial court to grant summary judgment based on a motion which fails to comply with the 20-day notice requirement.”).

As additional grounds for reversal, we note that it is well settled that a hearing on a motion in limine “may not serve as a vehicle for presentation of an unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So.2d 95, 95 (Fla. 3d DCA 1992); see also Connell v. Cap. City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough Cnty., 651 So.2d 1223 (Fla. 2d DCA 1995).

Also, it is well settled that a court is without authority to grant relief not requested by a party in the pleading. See Bank of N.Y. Mellon v. Reyes, 126 So.3d 304, 309 (Fla. 3d DCA 2013) (stating courts are unauthorized to grant relief not requested in the pleadings). The trial court dismissed Otero’s case on the merits despite neither motion in limine requesting such relief.

Because Gomez’s motion in limine was used as a vehicle to grant summary judgment without affording Otero the required notice, the final judgment entered by the trial court must be reversed. See Brock, 530 So.2d at 430 (holding that such a ruling constitutes reversible error); Connell, 932 So.2d at 444 (“[T]he granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.”).

We reverse and remand the case for further proceedings.

      . The driver is a nonparty.

      . In Williams, the Florida Supreme Court considered whether the foreseeable zone of risk analysis espoused in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), applies to private owners of residential property. Specifically, the Williams court concluded that a private landowner owes no duty to a motorist for torts arising from foliage located wholly within the bounds of the landowner’s property. Williams held:
      [W]hile the McCain foreseeable zone of risk analysis applies, we conclude that under that analysis owners of private property do not owe a duty to motorists on abutting roadways as to the maintenance of foliage
      located wholly within the bounds of the property. We do recognize, however, that all property owners owe a duty, under a McCain analysis, not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway.

        Id. at 1054.

      . The trial court stated, "We should have had this already heard a long time ago. You know, a motion to dismiss or a motion for summary judgment."

      . The trial court stated, “Motion is granted, but I’d really rather have it in writing in an order.”

      . We express no opinion as to the merits of Gomez’s summary judgment motion.


author: FORST, J.

text:
    Reynolds BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3949.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

A jury found Appellant to be a sexually violent predator (“SVP”), and the trial court granted the State’s petition to involuntarily commit Appellant for treatment as a Jimmy Ryce Act SVP. Appellant argues that the trial court abused its discretion and erred'in overruling the defense’s objection to brief statistical testimony about the Jimmy Ryce Act screening process. Although there is some merit to Appellant’s argument, we affirm the trial court’s involuntary commitment order.

This court has previously addressed similar testimony and found the “testimony regarding the multidisciplinary team’s commitment recommendation statistics was not relevant,” as it “had no probative value in determining whether [the defendant] met the statutory criteria for commitment as a sexually violent predator.” Marshall v. State, 915 So.2d 264, 268 (Fla. 4th DCA 2005), receded from on other grounds by Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011); see also Paige v. State, 962 So.2d 968, 969 (Fla. 4th DCA 2007) (testimony regarding the civil commitment screening process is inadmissible on grounds of relevancy); Ortegas-Mantilla v. State, 898 So.2d 1164, 1167 (Fla. 3d DCA 2005) (“[TJestimony regarding the process used in filing the petition for civil commitment against the [defendant] was irrelevant because the sole issue in this case was whether the [defendant] could be classified as a sexually violent predator.”). Marshall, Paige, and Ortegas-Mantilla are the three cases relied upon by Appellant in arguing for reversal. However, in each of those cases, the reviewing court ultimately-found the error to be harmless. Marshall, 915 So.2d at 268; Paige, 962 So.2d at 969; Ortega-Mantilla, 898 So.2d at 1167 (finding the error was harmless as “testimony was not made a feature of the trial, nor was it repeated by either side during closing arguments”). Similarly, we find any such error on the part of the trial court in the instant case to be harmless, and that competent and substantial evidence supports the trial court’s commitment order. Nonetheless, we caution prosecutors in future commitment trials to refrain from attempting to introduce this type of evidence, as it has been firmly established that such evidence is inadmissible under the circumstances found in this case.

Affirmed.

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


text:
    Joel P. SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1777.
    District Court of Appeal of Florida, Second District.
    July 30, 2014.

      Joel P. Sanchez, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zucearo, Assistant Attorney General, Tampa, for Appellee.
   BAUMANN, HERBERT J., JR., Associate Judge.

Joel P. Sanchez seeks review of an order directing that money confiscated during his arrest be applied to his outstanding fines and court costs. Because the trial court neither held an evidentiary hearing on the motion nor attached portions of the record that conclusively refuted Mr. Sanchez’s claims, we reverse.

Procedural History

Mr. Sanchez is currently serving a sixty-nine-month prison sentence for the offense of trafficking in illegal drugs. While the appeal of that judgment and sentence was pending, Mr. Sanchez filed a motion seeking the return of $1277 that was removed from his pockets when he was arrested. The Manatee County Sheriffs Office filed a response to the motion, asking the trial court to apply the money to Mr. Sanchez’s court costs and fines in the trafficking case. The trial court stayed the motion pending the outcome of Mr. Sanchez’s appeal of his judgment and sentence. After his appeal became final, Mr. Sanchez filed a motion asking the trial court to revisit his original motion. The Manatee County Clerk of Court filed a response to the motion and asked the trial court to apply the total $1277 to Mr. Sanchez’s court obligations. Without holding a hearing on the matter, the trial court entered an order directing that the money be applied to the court obligations.

Discussion

“A trial court’s jurisdiction over a criminal proceeding includes inherent authority over property seized or obtained in connection with the proceeding and thus held in custodia legis.” Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006) (citing White v. State, 926 So.2d 473, 474 (Fla. 2d DCA 2006)). “This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner.” Id.

The applicable procedure for a trial court to follow when a defendant seeks the return of his seized property is set forth in Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004). The trial court must first determine whether the defendant has filed a facially sufficient motion. “To be facially sufficient, the motion must allege that ‘the property at issue was his personal property, was not the fruit of criminal activity, and was not being held as evidence.’ ” Id. at 782 (quoting Durain v. State, 765 So.2d 880, 880 (Fla. 2d DCA 2000)). Although the motion must specifically identify the property at issue, it does not need to “establish proof of ownership in order to allege a facially sufficient claim for the return of property.” Id. (citing Stone v. State, 630 So.2d 660, 660-61 (Fla. 2d DCA 1994)). If the motion is facially sufficient, the trial court may order the State to file a response. Id. The trial court should then either deny the motion and attach portions of the record that conclusively refute the claim or it should hold an evidentiary hearing on the motion. See Almeda v. State, 959 So.2d 806, 809 (Fla. 2d DCA 2007).

The present case is similar to Williams v. State, 35 So.3d 142, 142 (Fla. 2d DCA 2010), where police officers seized $100.64, in addition to other property, when they arrested the appellant. After the criminal case had concluded, the appellant filed a motion to recover the property. Id. In response, the police department acknowledged that it had the property, but it noted that the appellant owed money for restitution, fines, and additional costs. Id. Thereafter, the trial court ordered the police department to transfer the money to the clerk of court to contribute to the above obligations without providing the appellant a chance to respond. Id. This court concluded that it was improper for the trial court to forfeit the money to the State without giving the appellant notice and an opportunity to be heard. Id. at 142-43.

In the present case, the trial court did not find that the allegations in Mr. Sanchez’s motion were facially insufficient, and it neither held an evidentiary hearing on the motion nor attached portions of the record that conclusively refuted the claims made in the motion. Accordingly, we reverse the order denying Mr. Sanchez’s motion for the return of seized property and remand for proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and BLACK, JJ., Concur.

      . The response stated that the amount seized was $1228.


text:
    Tiffany James BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2687.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. This affirmance is without prejudice to appellant’s right to file a fa-dally sufficient rule 3.850 motion within sixty (60) days of the date of this opinion.

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