author: SWANSON, J.

text:
    Garrick JOHN, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-5607.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Rehearing Denied Nov. 19, 2014.

      Garrick John, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

This is an appeal from an order dismissing appellant’s petition for writ of mandamus challenging prison disciplinary proceedings for failure to pay a $400 filing fee. We conclude that even if the lower court’s reason for dismissing the petition was incorrect, it reached the correct result because appellant could not demonstrate any constitutionally protected liberty interest was implicated in the disciplinary proceeding.

Appellant, a Florida prison inmate serving a life sentence, received a disciplinary report that resulted in forty-three days in disciplinary confinement and the forfeiture of 180 days of gain-time. After exhausting his administrative remedies, appellant filed a petition for writ of mandamus challenging the disciplinary proceedings on several grounds. The clerk of the circuit court determined that appellant was not indigent pursuant to section 57.085, Florida Statutes, and was required to pay a filing fee of $400.00 within sixty days or the case would be forwarded to the court for dismissal. The circuit court agreed with the clerk’s determination that appellant was not indigent pursuant to section 57.085 and dismissed appellant’s mandamus petition for failure to pay the filing fee. This appeal followed.

The lower court’s dismissal of appellant’s mandamus petition for failure to pay the filing fee is problematic because appellant’s indigent status should not have been determined pursuant to section 57.085, which does not apply to “collateral criminal proceedings” that include challenges to the forfeiture of gain-time and placement in disciplinary confinement. Muhammad v. Crosby, 922 So.2d 236, 239 (Fla. 1st DCA 2006); Jones v. Joseph, 989 So.2d 744, 746 (Fla. 4th DCA 2008); Thomas v. Fla. Parole Comm’n, 963 So.2d 777, 779 (Fla. 1st DCA 2007). Rather, appellant’s indigent status should have been determined pursuant to sections 57.081 and 57.082, Florida Statutes, the general indigency statutes. Jones, 989 So.2d at 746; Thomas, 963 So.2d at 779. Regardless, we agree with appellee that the lower court reached the correct result because appellant could not demonstrate any constitutionally protected liberty interest was implicated in the disciplinary proceedings challenged here.

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the United States Supreme Court held that inmates in disciplinary proceedings are entitled to certain minimum procedures under the due process clause of the federal constitution to protect their liberty interests. However, the due process clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Meachmn v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Court explained that while states may under certain circumstances create liberty interests that are protected by the due process clause, such interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293 (citations omitted). In particular, the Court in San-din held that discipline in segregated confinement for thirty days did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id. at 486,115 S.Ct. 2293. Based on Sandin, appellant’s placement in disciplinary confinement for forty-three days did not present an atypical, significant deprivation implicating the protections of the due process clause. See Williams v. Tucker, 87 So.3d 1270 (Fla. 1st DCA 2012) (holding that inmate failed to demonstrate any liberty interest implicating the protections of the due process clause where inmate challenged a disciplinary report that resulted in him being placed in disciplinary confinement for sixty days).

In addition, in Plymel v. Moore, 770 So.2d 242, 248 (Fla. 1st DCA 2000), this court held that the revocation of gain-time credits is a substantive interest entitled to due process protections as articulated in Wolff and reaffirmed in Sandin. However, we conclude the revocation of gain-time does not implicate appellant’s liberty interests in this case because appellant is serving a life sentence. Inmates serving life sentences are ineligible for gain-time. See Clines v. State, 912 So.2d 550, 559 n. 5 (Fla.2005); Wemett v. State, 567 So.2d 882, 884 (Fla.1990); Jackson v. State, 96 So.3d 980, 981 (Fla. 4th DCA 2012); Smith v. McNeil, 49 So.3d 298, 299 (Fla. 1st DCA 2010); Lewis v. State, 625 So.2d 102, 103 (Fla. 1st DCA 1993); Burdick v. State, 584 So.2d 1035,1037 (Fla. 1st DCA 1991) (en banc), approved in part and quashed in part, 594 So.2d 267 (Fla. 1992). Although the Department of Corrections keeps track of gain-time for such inmates in the event the life sentence is commuted to a terms of years, see Marshall v. State, 796 So.2d 631, 632 (Fla. 3d DCA 2001), such an event is too speculative to give rise to a liberty interest protected by the due process clause. Osterback v. Crosby, 17 Fla. L. Weekly Fed. D517, 2004 WL 964139 (M.D.Fla. Mar. 25, 2004).

AFFIRMED.

ROBERTS and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anastacia S. LACOMBE and Max P. Lacombe, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Long Beach Mortgage Loan Trust, Appellee.
    No. 1D13-4094.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2014.

      Austin T. Brown of Parker & DuFresne, PA., Jacksonville, for Appellant.
    Jeffrey S. York and N. Mark New, II of MeGlinchey Stafford, Jacksonville and Latoya 0. Fairclough, Choice Legal Group, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

The Lacombes, defendants below, appeal the final judgment of foreclosure against them and in favor of Deutsche Bank National Trust Co., as Trustee for Long Beach Mortgage Loan Trust 2006-2 (“Deutsche Bank”). Appellants assert that the evidence presented at the bench trial was insufficient to support the trial court’s judgment because Deutsche Bank’s documents and witness did not prove the bank’s standing to bring the foreclosure action. We agree and the judgment is thus reversed.

Because the final judgment was based on a bench trial and Appellants challenge the sufficiency of the evidence to support the judgment, the general rule requiring specific contemporaneous objection to preserve the asserted error for appeal does not apply. Rather, rule 1.580(e), Florida Rules of Civil Procedure allows review of the sufficiency of the evidence despite any deficiencies in the objections made at trial and absence of post-trial motions. Rule 1.530(e) applies to appeals challenging the sufficiency of the evidence in mortgage foreclosure actions after bench trial. See Correa v. U.S. Bank N.A., 118 So.3d 952, 954 (Fla. 2d DCA 2013). Accordingly, Appellants’ challenge to the sufficiency of the evidence is properly before this court.

We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo. Dixon v. Express Equity Lending Grp., 125 So.3d 965 (Fla. 4th DCA 2013).

Deutsche Bank commenced its foreclosure action on February 19, 2008, by filing its complaint, together with a promissory note payable to Tower Mortgage and Financial Services and secured by a mortgage on Appellants’ residential real property. The note was “payable to order” under section 673.1091, Florida Statutes because it specifically named Tower Mortgage as the payee. The note itself did not contain any indorsement, but an allonge signed by a representative of Tower Mortgage was attached to the note and filed with the complaint. The allonge was a “special indorsement” because it named a specific payee, Long Beach Mortgage Company. § 673.2051(1), Fla. Stat. Negotiation of the note thus required both possession and an indorsement by Long Beach Mortgage Company. Id.

Deutsche Bank alleged in its complaint that it was the owner of the note. In every pleading and other filing, Appellants denied this allegation. Appellants raised the affirmative defense that Deutsche Bank lacked standing to enforce the note and failed to acquire an interest in the note prior to the filing of the lawsuit. See Mazine v.M&I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (party seeking foreclosure must prove it owns and holds note and mortgage to establish standing). Accordingly, throughout the litigation Appellants disputed the fact of Deutsche Bank’s right to enforce the note and attendant standing to maintain an action for foreclosure. Deutsche Bank’s ownership of the note was thus an issue it was required to prove. Gee v. U.S. Bank Nat. Ass’n, 72 So.3d 211, 214 (Fla. 5th DCA 2011) (“When [defendant] denied that U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank, as the plaintiff, was required to prove.”).

At trial, as proof of its ownership and standing to enforce the note, Deutsche Bank presented the testimony of Andrew Benefield, case manager for Select Portfolio Servicing (“SPS”), and five exhibits.

Exhibit 1 was a Limited Power of Attorney under which SPS obtained certain powers from JPMorgan Chase Bank, N.A. (described as “Master Servicer”) and Deutsche Bank National Trust Company as Trustee (described as “Trustee”) “in connection with all mortgage or other loans serviced by Master Servicer” including foreclosure on the Trustee’s interest in mortgage notes. Attached to the Power of Attorney was Exhibit A, a list of thirty-five “Pooling and Servicing Agreements” governing groups of “asset-backed certificates.” While exhibit 1 shows that JPMorgan Chase and Deutsche Bank transferred certain powers to SPS in 2013, it is not clear from Exhibit 1 or Mr. Bene-field’s testimony that the particular note and mortgage executed by Appellants in 2005 and endorsed by Tower Mortgage to Long Beach Mortgage Company is one of the mortgages affected by one of the multitude of pooling and servicing agreements referenced in the attachment.

Exhibit 2 consisted of the note and mortgage. As previously noted, the only indorsement of the note was from Tower Mortgage to Long Beach Mortgage Company.

Deutsche Bank’s Exhibit 3 consisted of a collection of nine pages from one or more documents. The first page of this exhibit is a title page of a Pooling and Servicing Agreement with the phrase “dated as of March 1, 2006” under the title. The parties listed on this page are Long Beach Securities Corp., Long Beach Mortgage Company, and Deutsche Bank National Trust Company. The next five pages of the exhibit are signature and notarization pages. The seventh page is entitled “Summary of Terms” and states:

The following summary highlights selected information from this prospectus supplement. It does not contain all of the information that you need to consider in making your investment decision. To understand the terms of the offered certificates, read carefully this entire prospectus supplement and the accompanying prospectus.

The final three pages of Exhibit 3 appear to be computer-generated print-outs of single lines of data which might or might not correspond to Appellants’ note and mortgage. These pages were not authenticated by the witness and their significance was not explained by Mr. Benefield’s testimony or any other evidence. See LaFrance v. U.S. Bank Nat. Ass’n, 141 So.3d 754, 756 (Fla. 4th DCA 2014) (reversing summary judgment for Bank due to failure of proof that Bank was owner of note prior to filing of complaint; loan servicing records without any explanation failed to prove Bank was owner of note).

Although Mr. Benefield repeatedly testified that he was relying on “the pooling and servicing agreement” for proof that Deutsche Bank had standing to enforce the note, no actual pooling and servicing agreement, indorsement, or other evidence of negotiation of the note at issue from Long Beach Mortgage Company to any entity is contained in Plaintiffs Exhibit 3 or elsewhere in the record. Deutsche Bank’s evidence to prove its right to enforce the Note, including Mr. Benefield’s testimony, is incoherent. Mr. Benefield testified that he did not know why pooling and service agreements were so entitled, did not know whether Exhibit 3 was a composite exhibit from several documents or an incomplete copy of a single document, and did not address the meaning of the page which referenced a “Prospectus Settlement” and “information ... to consider in making your investment decision.” Exhibit 3 fails to support any finding that the Note between Tower Mortgage and the Lacombes was ever negotiated, by subsequent indorsement or otherwise, to Deutsche Bank. The composite document admitted as Exhibit 3 and the testimony of Mr. Benefield were not competent or substantial evidence even to tend to prove Deutsche Bank’s standing to enforce the Note.

Exhibit 4 was a copy of a letter entitled “Notice of Intent to Accelerate,” addressed to Mrs. Lacombe from Washington Mutual in Chatsworth California, dated December 5, 2007. The letter has no certificate of service, return receipt, or other indication from a courier or delivery service that it was actually received by the addressee. Appellants’ pleadings consistently denied ever receiving this letter. Although Mr. Benefield was questioned about this document, he had no personal information about its authenticity or delivery. It was never suggested that he ever worked for Washington Mutual or had any knowledge about the creation of the letter or about Washington Mutual’s business practices regarding such letters, as would be required to admit the hearsay document as a business record. See § 90.803(6), Fla. Stat.

Finally, Deutsche Bank’s Exhibit 5 was submitted as a “payment history” for the debt at issue. The computer-generated pages indicate preparation by SPS for some pages and Washington Mutual Bank for other. Counsel for Appellants objected to the lack of foundation to admit this hearsay document into evidence and noted that Mr. Benefield was not a records custodian for SPS or any of the previous loan servicers. See §§ 90.801, 90.803(6), Fla. Stat. The court overruled the objection without discussion and the document was admitted into evidence.

It is well-settled that:

A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). But standing must be established as of the time of filing the foreclosure complaint.

Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted). Even if exhibits 1, 3, 4 and 5 — admitted by the trial court — had been relevant, properly authenticated, and qualified for the business records exception to the hearsay rule, see Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014), none of Deutsche Bank’s exhibits qualifies as an indorsement from Long Beach Mortgage to Deutsche Bank, an assignment from Long Beach Mortgage to Deutsche Bank, or an affidavit otherwise proving the plaintiffs standing to bring the foreclosure action on the note and mortgage at issue as a matter of law. Likewise, the record contains no assertion or proof by Deutsche Bank of its standing under any means identified in section 673.3011, Florida Statutes. See Mazine v. M & I Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011). Absent evidence of the plaintiffs standing, the final judgment must be reversed.

Appellants also challenge the trial court's pre-trial denial of their motion for summary judgment. However, the trial of the issue of fact regarding plaintiffs right to enforce the note via ownership thereof rendered any error in the denial of summary judgment moot. Sunrise Lakes Condo. Apts. Phase III, Inc. v. Frank, 73 So.3d 901 (Fla. 4th DCA 2011).

We decline to remand the case for the presentation of additional evidence because “appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010). Deutsche Bank filed its complaint in 2008 and had more than five years until the eventual trial to produce competent evidence to prove its right to enforce the note at the time the suit was filed and prove the amount of the indebtedness. When Deutsche Bank finally tried its case in mid-2013, it relied upon a note secured by a mortgage payable to the order of the original lender, a specific indorsement transferring the debt to an entity other than Deutsche Bank, a single witness employed by the latest in a succession of “loan servicers,” and upon unauthenticated, largely unexplained papers it advanced as proof of its standing. This failure of proof after ample opportunity is no reason to provide Deutsche Bank with a second opportunity to prove its case on remand. See Wolkoff v. American Home Mortg. Servicing, Inc., — So.3d —, 39 Fla. L. Weekly D1159, 2014 WL 2378662 (Fla. 2d DCA May 30, 2014); Correa v. U.S. Bank, N.A., 118 So.3d 952, 956 (Fla. 2d DCA 2013).

The final judgment of foreclosure is reversed due to the insufficiency of the evidence to support the judgment. This case is remanded for the entry of an order of involuntary dismissal of the action.

BENTON and CLARK, JJ., concur; OSTERHAUS, J., concurs in result.

      . "In essence, an allonge is simply an elegant-sounding legal term for a supplemental attachment to a note in which endorsements to subsequent note holders may be identified.” Wells Fargo Bank, N.A. v. Bohatka, 112 So.3d 596, 598 (Fla. 1st DCA 2013).


text:
    Paul McMULLEN, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, As Trustee for PHH 2007-2; E.P. Wolf Construction, Inc.; Deborah Lee Thompson Perryman; Estate of Charles H. Thompson, Jr., Deceased, Unknown Heirs, Devisees, Grantees, Assignees, Creditors, Lienors and Trustees of Charles H. Thompson, Jr., Deceased, and All Other Persons Claiming By, Through, Under, and Against the Named Defendants); Garfield B. Thompson, Unknown Parties in Possession # 1; Unknown Parties in Possession #2: If Living, and all Unknown Parties Claiming By, Through, Under, and Against the Above Named Defendants) Who Are Not known To Be Dead or Alive, Whether Said Unknown Parties May Claim An Interest As Spouse, Heirs, Devisees, Grantees or Other Claimants, Appellee.
    No. 1D14-1737.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2014.

      Monique M. Sadarangani of Advocate Law Groups of Florida, P.A., Miami Lakes, for Appellant.
    Kimberly N. Hopkins and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellee.
   PER CURIAM.

Appellant, Paul McMullen, appeals the denial of his motion to vacate a final judgment of foreclosure and argues that because he did not receive notice of the summary judgment hearing, the trial court erred in not vacating the foreclosure judgment. We reject Appellant’s argument because, as argued by Appellee, HSBC Bank USA, a judicial default was entered in this case. See Matejka v. Dulaney, 40 So.3d 865, 866 (Fla. 4th DCA 2010) (noting that a default admits every cause of action that is sufficiently well-pled as well as a plaintiffs entitlement to liquidated damages); see also Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (“Generally, in a foreclosure action, unpaid principal and interest are ‘liquidated damages,’ and a defaulting party is not entitled to notice of hearing determining those amounts where the exact sums are set forth.”); Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006) (“A default terminates the defending party’s right to further defend, except to contest the amount of unliquidat-ed damages.”); Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) (noting that actions for, the sums directly due on negotiable instruments are actions for liquidated damages). However, because the foreclosure judgment also included unliquidated damages, including, for example, attorney’s fees, we reverse and remand for a hearing on the amount of unliquidated damages owed to Appellee. See Pepe, 633 So.2d at 553 (affirming the trial court’s ruling denying the defendants’ motion to vacate the final judgment of foreclosure except as to the provision for attorney’s fees because the fees were un-liquidated damages).

AFFIRMED in part; REVERSED in part; and REMANDED.

LEWIS, C. J., CLARK and MARSTILLER, JJ., concur.

      . The Notice of Hearing was sent by U.S. mail to the law firm representing Appellant and to the email address of Appellant's former attorney rather than the email address designated by the firm pursuant to Florida Rule of Judicial Administration 2.516(b).


author: WARNER, J.

text:
    Adrian L. HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1357.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing Denied Nov. 10, 2014.
    Andrew F. Rier and Daniel Tibbitt of Andrew Rier, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s convictions for battery of one victim and third-degree felony murder of another, rejecting appellant’s claim that a jury instruction on principals was fundamentally erroneous. Not only did defense counsel affirmatively agree to the instruction, thus waiving any error, see Martinez v. State, 98 So.3d 1190 (Fla. 3d DCA 2012), but we conclude that there was evidence to support the instruction.

Appellant Hunter was called on the phone by his co-defendant, Shanovia Mack, who was his cousin. She was angry with Valcourt, one of the victims in this case, for having hit her earlier in the evening. She wanted Hunter to help her confront and fight Valcourt. Other witnesses testified that she said she wanted the victim “murked,” which is sometimes a slang term for murdered. Hunter met with the co-defendant, Mack, and brought his brother along. The three went to confront the victim, Valcourt. Mack testified that she expected that they would beat up Valc-ourt. Witnesses testified that the two men got out of the car, and the brother confronted both victims, pistol-whipping one of them. During the pistol-whipping, the gun discharged, killing Valcourt. Although the state proceeded on the theory that the appellant was the person with the gun who shot the victim, there was also sufficient evidence to support the principal jury instruction in that appellant was responsible for bringing his brother to the confrontation, and they all knew they were going to fight the victim. Appellant claimed that the action of his brother in shooting the victim was an independent act not expected or intended by him.

Shavers v. State, 86 So.3d 1218 (Fla. 2d DCA 2012), relied on by appellant, is distinguishable. There, Shavers was charged with first degree murder and first degree robbery for stealing cash from a drug dealer and shooting him. The state’s theory was that Shavers shot the victim during a robbery while a witness looked on. The state presented evidence that Shavers had asked several people at a party to help him rob the victim but no one agreed. At some point during the night, Shavers and the victim were alone with a man named Peterson. Peterson claimed that he saw Shavers shoot and rob the victim. There was evidence that Shavers and another person, Bailey, went on a spending spree with the victim’s drug money. At trial, Shaver’s theory was that Bailey shot the victim while Peterson looked on, and Peterson misidentified Shavers as the shooter in order to protect Bailey, who was Peterson’s childhood friend. Of most relevance to this case, there was no evidence that Shavers acted in concert with Bailey to commit the murder or to rob the victim. Thus, the principals instruction, which was objected to, should not have been given. Id. at 1224.

In contrast, in this case Hunter brought his brother to the scene, even though Mack called only Hunter to assist her in confronting and fighting the victim. Thus, at the very least they were intending to commit a battery. Both men got out of the car to confront the victims. After the victim was shot, both men ran and escaped the scene. It was for the jury to assess whether the discharge of the brother’s firearm constituted an independent act or a crime within the foreseeable consequences of the criminal conduct set in motion. “Whether a defendant knows of a criminal act ahead of time or physically participates in the crime, participation with another in a common criminal scheme renders the defendant guilty of all crimes committed in furtherance of that scheme.” Jackson v. State, 18 So.3d 1016, 1026 (Fla. 2009).

Given the facts of this case, there was no error in giving the principal instruction. Appellant also alleges that the information failed to charge him as a principal, but that claim is meritless, as the information does not need to include such language. State v. Roby, 246 So.2d 566, 571 (Fla.1971).

For the foregoing reasons, we affirm appellant’s conviction.

CONNER and KLINGENSMITH, JJ., concur.


author: PER CURIAM. MARSTILLER, J.,

text:
    Ronald A. THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1255.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.

      Ronald A. Thomas, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand for the trial court to give the appellant an opportunity to file his claim in a facially sufficient rule 3.850 motion.

The appellant alleges that one of his prior convictions was scored improperly on his scoresheet. Because the motion was filed pursuant to rule 3.800(a) and did not meet the pleading requirements of rule 3.850, the trial court applied the “could-have-been-imposed” test and denied relief.

If treated as a rule 3.850 motion the appellant may have been entitled to relief under the more lenient “would-have-been-imposed” test which applies to claims of scoresheet error raised under that rule. However, if treated as a rule 3.850 motion it is facially insufficient as it is not sworn and does not otherwise comply with the technical requirements of that rule. Although facially insufficient, the motion would be timely as a rule 3.850 motion, and the claim is cognizable in a rule 3.850 motion. In such situations, the appellant is entitled to an opportunity to amend. See Kelsey v. State, 97 So.3d 978 (Fla. 1st DCA 2012) (citing Spera v. State, 971 So.2d 754 (Fla.2007)). Accordingly, we reverse and remand for the trial court to give the appellant an opportunity to raise his claim of scoresheet error in a facially sufficient rule 3.850 motion.

LEWIS, C.J. and BENTON, J., concur.

MARSTILLER, J., dissents with opinion.

MARSTILLER, J.,

dissenting.

I respectfully dissent for I do not believe our decision in Kelsey v. State supports reversal in this instance. The rule 3.800(a) motion in Kelsey was sworn, and the post-conviction court expressly concluded that, had the claim been raised in a rule 3.850 motion, resentencing would be required. 97 So.2d at 979. Neither circumstance occurred here. The appellant in this case chose a rule 3.800(a) motion as the vehicle for challenging his sentence. The motion “is not sworn and does not otherwise comply with the technical requirements of [rule 3.850].” (Maj. op. at 160.) The lower court correctly applied the “could-have-been-imposed” test to the appellant’s motion and correctly denied it. Consequently, we should affirm the order on appeal.

We are, after all, an error-correcting court. Reversing the order and directing the lower court to treat the motion as one filed under rule 3.850 simply because a more lenient test would apply and the appellant may be entitled to relief under that test is, in my view, inappropriate.

      . We do not address the merits of appellant’s challenge to his scoresheet.


text:
    Michael Carman BYERS, Appellant, v. Brantley Dubose BYERS, Appellee.
    No. 1D14-368.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Jerome M. Novey, Shannon L. Novey, and Christian F. Gonzalez of Novey Law, Tallahassee, for Appellant.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   PER CURIAM.

Michael Carman Byers, the former husband, appeals the final order of dissolution of marriage, raising three issues. Specifically, he challenges the trial court’s adoption of the proposed final order submitted by counsel for his former wife, Brantley Dubose Byers; the award of $1.00 in permanent periodic alimony to his former wife; and the valuation and distribution of certain marital assets. We affirm.

Most of Mr. Byers’s arguments regard a claimed lack of factual findings by the trial court, but our review fails to find that the issues were raised and preserved below, precluding their consideration on appeal. See Owens v. Owens, 973 So.2d 1169, 1170 (Fla. 1st DCA 2007) (former wife failed to preserve claim that final judgment lacked sufficient factual findings where she failed to seek rehearing or bring error to trial court's attention); see also Mize v. Mize, 45 So.3d 49 (Fla. 1st DCA 2010) (adequacy of factual findings unpreserved where former husband failed to challenge their sufficiency by a motion for rehearing or other post-judgment pleading).

Regarding his claim that the trial court erred by adopting, verbatim, his former wife’s proposed final order, we note that Florida law does not preclude a trial court from doing so, provided the adopted judgment does not substitute for thoughtful and independent analysis of the facts, issues, and law by the trial judge. See Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla.2004); M.D. v. Dep’t of Children & Fam. Servs., 924 So.2d 827, 830 (Fla. 2d DCA 2005). While a verbatim adoption of a party’s submission might raise a caution flag, it is lowered if the record shows that .the trial court exercised independent judgment in entering the order. David v. David, 58 So.3d 336, 338 (Fla. 5th DCA 2011). Here, the proposed final order appears to reflect the rulings that the trial court made, so we find no error.

Regarding Mr. Byers’s challenge to the award of $1.00 per month in permanent periodic alimony, our review of the record show the trial court’s rulings are supported by clear and convincing evidence after consideration of the factors set forth in subsection 61.08. The court first determined that Mr. Byers has the ability to pay his former wife, who has a need for alimony. See Walker v. Walker, 85 So.3d 553, 554 (Fla. 1st DCA 2012) (“In order to award permanent alimony, the trial court must make specific factual determinations with regard to actual need on the part of the former spouse seeking an alimony award.”). During the marriage, Mr. Byers was the primary breadwinner, working as a bank executive often earning well into six-figures of income each year. By contrast, his former wife was mostly a stay-at-home mom; when the parties separated, she worked as a part-time teacher, a factory worker, and home cleaner. After Mr. Byers stopped temporary child support and alimony payments, his former wife had to go on foodstamps and other government assistance to make ends meet for herself and the parties’ three minor children. After evaluating all the other relevant statutory factors, all of which are supported by the record evidence, the trial court awarded the former wife the nominal alimony amount at issue. This nominal award is likely based on the fact that Mr. Byers had filed bankruptcy, is currently working in a job paying far less than his prior bank positions, but that his financial position is likely to change in the future; this ruling was wholly permissible. See Liebrecht v. Liebrecht, 58 So.3d 415, 417 (Fla. 2d DCA 2011) (finding nominal alimony award appropriate to preserve wife’s right to seek larger amount upon a change in financial conditions); Biskie v. Biskie, 37 So.3d 970, 971 (Fla. 1st DCA 2010) (reversing denial of permanent periodic alimony based on husband’s twenty percent reduction in income, because nominal award more appropriate as parties’ financial circumstances likely to change in the future).

Finally, Mr. Byers challenges the valuation of certain assets and the inclusion of certain assets in the marital estate. We find no abuse of discretion. Stough v. Stough, 18 So.3d 601, 604 (Fla. 1st DCA 2009). The issues concern the inclusion of two bonus checks of $17,000 and $29,000, respectively, which he received while he worked at Regions Bank. He essentially claims those funds were depleted by the time of the final hearing on the divorce petition, because he used it to pay, among other things, the mortgage, child support, alimony, and so on. But his former wife was able to show that not only did he not list the amounts on his amended financial affidavits, he also ceased making any mortgage payments on the residence at least a year before receiving those checks, and stopped making child support and alimony payments thereafter. Additionally, at the time he received those bonus checks, he was earning $143,989.88 in salary from Regions Bank, from which he could have paid his financial obligations to his family. Thus, the trial court had sufficient evidence from which to conclude that the check amounts should be included in the marital estate.

AFFIRMED.

CLARK, WETHERELL, and MAKAR, JJ., concur.


author: CONNER, J.

text:
    Shelby Ann SPICER, Appellant, v. TENET FLORIDA PHYSICIAN SERVICES, LLC, and Sunrise Medical Group I, LLC, Appellees.
    No. 4D14-215.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.

      Maria Elena Abate and Matthew C. Scarfone of Colodny, Fass, Talenfeld, Kar-linslcy, Abate & Webb, P.A., Fort Lauder-dale, for appellant.
    David R. Ruffner and Martin B. Goldberg of Lash & Goldberg, LLP, Miami, for appellees.
   CONNER, J.

Shelby Ann Spicer, the employee, appeals the trial court’s order granting Tenet’s motion to compel arbitration. She argues that the trial court erred for several reasons. We are persuaded by two of her arguments: (1) her employment agreement, standing alone, did not contain a legally sufficient agreement to arbitrate; and (2) her employment agreement did not sufficiently incorporate by reference a separate document which did contain a legally sufficient agreement to arbitrate. We write to discuss only those issues and reverse.

Factual Background and Pertinent Trial Court Proceedings

In June 2010, the employee began working for Sunrise Medical Group I, LLC. In early 2011, Sunrise was acquired by Tenet. As part of the acquisition, Tenet hired the employee. The employee signed an -employment agreement with Tenet on December 15, 2011. The employment agreement was in the format of a two-page letter on Tenet’s letterhead signed by a human resource manager, with the employee’s signature underneath. The letter contained five numbered paragraphs. The last paragraph of the employment agreement stated:

5. Conflict Resolution: As a condition of employment, you agree that any and all disputes regarding your employment with [Tenet], including disputes relating to the termination of your employment, are subject to the Tenet Fair Treatment Process [“FTP”], which includes final and binding arbitration. You also agree to submit any such disputes for resolution under that process, and you further agree to abide by and accept the decision of the arbitrator as the final and binding decision and exclusive resolution of any such disputes.

The last sentence of the letter stated: “If you have any questions, please contact feel free to contact [sic] me in the Human Resources Department at [phone number].” The FTP was not attached to the employment agreement. There were no specific directions in the letter as to how the employee could obtain a copy of or locate the FTP.

On January 1, 2012, the employee was given directions as to how to access the website where the “Open Door and Fair Treatment Policy” was posted. The FTP is a subpart of the “Open Door and Fan-Treatment Policy.” The FTP contained the following language:

The arbitration will be administered by the American Arbitration Association (“AAA”). The Company and the employee will share the cost of the AAA’s filing fee and the arbitrator’s fees and costs, but the employee’s share of such cost shall not exceed an amount equal to one day’s pay (for exempt employees) or eight times the employee’s hourly rate (for non-exempt employee) or the local filing fee, whichever is less.
Authority of Arbitrator: The arbitrator has the authority to award any remedy that would have been available to the employee had the employee litigated the dispute in court under applicable law.

A little over a year later, in February 2013, the employee filed a complaint against Tenet alleging that it violated Florida’s Whistleblower Act. The employee claimed that she brought certain violations to Tenet’s attention and she was then retaliated against and became unemployed.

In response to the complaint, Tenet filed a motion to compel arbitration, arguing that the employment agreement and FTP required arbitration between the parties in the event of a dispute. After the hearing on Tenet’s motion, the trial court granted Tenet’s motion, finding that there was a valid written arbitration agreement, the arbitration agreement was not unconscionable, and Tenet did not waive its right to arbitrate.

Legal Analysis

“An order granting or denying a motion to compel arbitration is reviewed de novo.” Ibis Lakes Homeowners Ass’n v. Ibis Isle Homeowners Ass’n, 102 So.3d 722, 727 (Fla. 4th DCA 2012) (quoting Best v. Ed. Affiliates, Inc., 82 So.3d 143, 145 (Fla. 4th DCA 2012)) (internal citation omitted) (internal quotation marks omitted).

The central issue we address on appeal is whether a valid arbitration agreement existed between the employee and Tenet. The employee raises two arguments in asserting there was no binding arbitration agreement in this case. First, she argues that the employment agreement itself did not contain an adequate arbitration agreement. Second, she argues that the FTP, which did state an adequate arbitration agreement, was not sufficiently incorporated into the employment agreement. We address each argument serially.

Whether the Employment Agreement, Standing Alone, Was a Sufficient Arbitration Agreement

“Provisions in a contract providing for arbitration must be definite enough so that the parties at least have some idea as to what particular matters are to be submitted to arbitration and set forth some procedures by which arbitration is to be effected. Malone & Hyde, Inc. v. RTC Transp., Inc., 515 So.2d 365, 366 (Fla. 4th DCA 1987) (emphasis added) (citing G & N Constr. Co. v. Kirpatovsky, 181 So.2d 664 (Fla. 3d DCA 1966)) (emphasis added).

language of the employment agreement, standing alone, was not suffi-sufficreate a valid arbitration agreement. Although the agreement does include lan-lanabout arbitration, and does define what matters are to be submitted to arbi-arbiabsent incorporation of the FTP by reference, the employment agreement does not set forth any procedures for arbi-arbias required by Malone. It simply states:

5. Conflict Resolution: As a condition of employment, you agree that any and all disputes regarding your employment with TFPS, including disputes relating to the termination of your employment, are subject to the Tenet Fair Treatment Process, which includes final and binding arbitration. You also agree to submit any such disputes for resolution under that process, and you further agree to abide by and accept the decision of the arbitrator as the final and binding decision and exclusive resolution of any • such disputes.

(emphasis added). Although we held in Butch that failure to designate the procedure under which arbitration would be governed does not invalidate an arbitration agreement if the contract stated that it was to be construed under Florida law, our holding was premised on the determination that the Florida Arbitration Code, Chapter 682, Florida Statutes, fills in the “gaps” or missing procedure. 24 So.3d at 710. The employment agreement in this case has no statement that it is to be construed under Florida law.

We thus conclude the employment agreement, standing alone, does not contain a binding arbitration agreement.

Incorporation of the FTP by Reference

[4] is a generally accepted rule of contract law that, where a writing express-expressrefers to and sufficiently describes an-andocument, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.” OBS Co. .v. Pace Constr. Corp., 558 So.2d 404, 406 (Fla.1990) (citations omitted).

In BGT Group, Inc. v. Tradewinds Engine Services, LLC, 62 So.3d 1192, 1194 (Fla. 4th DCA 2011), we held that:

To incorporate by reference a collateral document, the incorporating document must (1) specifically provide “ ‘that it is subject to the incorporated [collateral] document’” and (2) the collateral document to be incorporated must be “ ‘sufficiently described or referred to in the incorporating agreement’” so that the intent of both parties may be ascertained. Kantner v. Boutin, 624 So.2d 779, 781 (Fla. 4th DCA 1993) (quoting Hurwitz v. C.G.J. Corp., 168 So.2d 84, 87 (Fla. 3d DCA 1964)):

(emphasis added). See also OBS, 558 So.2d at 406 (“It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.”).

[5] the employment agreement expressly states that “any and all disputes regarding your employment with [Tenet] ... are subject to the [FTP].” Thus, the first element of incorporation by reference was satisfied. The dispositive issue is whether the second element was satisfied.

In BGT, a dispute arose based on a sale of used gas turbine parts from BGT to Tradewinds. 62 So.3d at 1193. BGT sent Tradewinds a quote for the sale, which included that the order was subject to “the attached BGT terms and conditions.” Id. However, there were no terms and conditions attached. Id. Tradewinds did not request a copy of the terms and conditions because it assumed that the quote referenced “something that didn’t exist.” Id. at 1193-94. BGT then sent an invoice to Tradewinds, which referenced a “remarks” section. Id. at 1194. The “remarks” section did not contain any language regarding arbitration, and also referenced “attached BGT terms and conditions,” which again were not attached. Id. We held that the terms and conditions were not incorporated into the agreement between BGT and Tradewinds, because “cases finding sufficient description of a collateral document to create an incorporation by reference involve more detailed descriptions of the collateral document, or where the document could be found.” Id. at 1195.

Another important fact to our decision in BGT was that BGT failed to provide the terms and conditions during the negotiating process. Id. Because the quote and purchase order did not sufficiently describe the terms and conditions and because the terms and conditions were not provided in the negotiation process, we concluded that a reasonable view of the contract indicated that BGT, “as drafter of the documents, did not intend to incorporate any ‘terms and conditions’ where it did not provide a specific description of them or attach them to the quote and purchase order.” Id. (emphasis added). We also concluded “it cannot objectively be said the Tradewinds agreed to be bound by them.” Id. In Kaye v. Macari Building. & Design, Inc., 967 So.2d 1112, 1113 (Fla. 4th DCA 2007), we found an adequate incorporation by reference where the following language was used: “The American Institute of Architects Documents No. A-201, April 1997 Edition is hereby made a part of these specifications and this contract.” The citation to a specific document by date and edition in Kaye provided more information about the document to be incorporated than the employment agreement in this case. We also distinguish the facts of this case from Kaye because the FTP was a subpart of the Open Door and Fair Treatment Policy, which was not mentioned or described within the employment agreement. No description, citation, or location was given in the employment agreement for either the Open Door and Fair Treatment Policy or the FTP.

Tenet does not dispute that the location of the Open Door and Fair Treatment Policy and the FTP were not disclosed to the employee until seventeen days after the employment agreement was signed. Rather, to negate the argument that the employment agreement failed to disclose the location of the FTP, Tenet argues the employment agreement clearly states: “If you have any questions, please contact feel free to contact [sic] me in the Human Resources Department at [phone number].” Tenet contends that because the employee “asked no questions, raised no objections, and received an electronic copy of the FTP seventeen days [after signing the employment agreement],” the employee’s arguments on appeal are unavailing because “[the employed] cannot plead ignorance as to the terms of the FTP simply because she failed to access and review it.” However, the cases cited by Tenet for this argument are very distinguishable from the facts of this case, and we are not persuaded by Tenet’s argument. We hold that merely providing a telephone number in a document for a party to call “if you have any questions” is not sufficient to meet the requirement of giving the location of a document to be incorporated by reference.

Conclusion

We conclude that the employment agreement, standing alone, did not contain a legally sufficient arbitration agreement because it failed to set forth some procedures by which arbitration was to be effected. Although the employment agreement clearly stated that any and all disputes were “subject to” the FTP, the FTP was not sufficiently described in the employment agreement or attached and no location was given as to where the FTP could be found. Therefore, the FTP was not sufficiently incorporated into the employment agreement. It was reversible error for the trial court to order arbitration in this case.

Reversed and remanded.

GROSS and GERBER, JJ., concur.

      . “The court must consider three elements in determining a party's entitlement to arbitration: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’ ” Premier Real Estate Holdings, LLC v. Butch, 24 So.3d 708, 710 (Fla. 4th DCA 2009) (quoting O'Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006)) (internal quotation marks omitted); BDO Seidman, LLP v. Bee, 970 So.2d 869, 874 (Fla. 4th DCA 2007) (quoting Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003)) (internal quotation marks omitted). The second and third elements are not at issue in this case.

      . In support of the argument on this point, Tenet cites to Brea Sarasota, LLC v. Bickel, 95 So.3d 1015 (Fla. 2d DCA 2012), Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500 (4th DCA 2003), and Brasington v. EMC Corp., 855 So.2d 1212 (Fla. 1st DCA 2003). None of these cases address an issue of incorporation by reference, and none involve an issue concerning the adequacy of the description of the arbitration procedures to be used. Although in each of the three cases the court found the party contesting arbitration could have obtained more information about the applicable arbitration procedures upon reading further or making inquiries, it appears the location of the information in each case was clearly stated in the arbitration agreement.


author: STEVENSON, J.

text:
    Kent Allen SALLAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-2667, 4D13-524.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Rehearing Denied Nov. 6, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

This consolidated appeal stems from the proceedings that followed Defendant’s filing of a rule 3.800(a) motion challenging the sentence imposed in a 1998 case following a violation of probation (L.T. Case No. 98-8174). The sentence imposed in the 1998 VOP case was entered simultaneously with a 2003 case involving new charges (L.T. Case No. 03-12490), and a single score sheet was used. As we explain, while the error alleged with regard to the VOP case (98-8174/4D11-2667) has been rendered moot, the trial court erred in resentencing Defendant in the case which involved the new charges (03-12490/4D13-524).

In lower court case numbers 98-8174 and 03-12490, Defendant filed a rule 3.800(a) motion to correct illegal sentence. In his motion, Defendant alleged that, in June of 2005, he was simultaneously sentenced for a violation of the probation (VOP) imposed in lower court case number 98-8174 and for the crimes in lower court case number 03-12490. Following the plea to the VOP, the trial court sentenced Defendant to 25.475 years in prison for count 1 and to 5 years in prison for count 3, with the sentences to run concurrent with those imposed in the 2003 case. Defendant challenged the sentences imposed in 98-8174 on two grounds. First, the 5-year prison sentence on count 3 was illegal as no probation had been imposed for count 3. Second, the 25.475-year prison sentence imposed for count 1 was based upon an incorrect score sheet as the trial court had both used the wrong version of the guidelines score sheet and incorrectly used a single score sheet for the VOP in 98-8174 and the 2003 case. Defendant argued the use of the single, incorrect score sheet had resulted in an increased VOP sentence for count 1 in 98-8174, but conceded the sentences imposed in the 2003 case did not need to be altered due to his PRR status. The trial court granted the motion to the extent it challenged the sentence imposed for count 3 in 98-8174, but denied relief as to count 1.

Defendant appealed the trial court’s ruling denying him relief as to count 1 in 98-8174 (4D11-2667). During the pendency of the appeal, Defendant filed a motion asserting that the State had conceded the sentence imposed- upon the VOP in 98-8174 was based upon the wrong version of the guidelines and asking that this court relinquish jurisdiction to the trial court to correct the error. We granted the motion and relinquished jurisdiction to the trial court. Then, following a hearing and the preparation of separate score sheets for 98-8174 and 03-12490, the trial court re-sentenced Defendant on count 1 in 98-8174 and reduced Defendant’s sentence in that case from 24.475 years to 11.825 years. The trial court also resentenced Defendant in 03-12490 and increased, the sentence from 15 years to 17.966 years, with 15 years to be served as a PRR. Defendant then appealed the sentence imposed in 03-12490 during the relinquishment period (4D13-524).

The trial court’s resentencing of Defendant for count 1 in 98-8174, based upon a corrected score sheet, renders the appeal in 4D11-2667 moot. We must, however, reverse the sentence imposed during the relinquishment period in 03-12490 for two primary reasons. First, our order relinquishing jurisdiction to the trial court was limited to 98-8174; and second, Defendant was not seeking relief from the sentence imposed in 03-12490. See Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005) (holding trial court lacked jurisdiction to modify sentences imposed in 2001 cases where the defendant’s rule 3.800(a) motion challenged only the sentences imposed in his 1998 and 1999 cases). Significantly, the State never independently sought to challenge Defendant’s original sentence in 03-12490 as an illegal sentence.

Reversed and Remanded.

WARNER and GERBER, JJ„ concur.

      . Previously, Defendant had been sentenced to 15 years as a PRR, but the State argued that, under the CPC, the court was required to impose the lowest permissible sentence as calculated by the CPC if such lowest permissible sentence exceeded the PRR sentence. The trial court agreed with the State and resen-tenced Defendant accordingly.


author: CIKLIN, J.

text:
    Gerald WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3239.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   CONFESSION OF ERROR

CIKLIN, J.

The appellant, Gerald Walker, appeals his judgment and sentence, entered after the trial court held a non-jury trial without obtaining a waiver of jury trial from Walker. We accept the state’s confession of error and reverse and remand for new trial.

Walker was indicted for first-degree murder with a firearm. While trial was pending, he was found incompetent to stand trial and, in 1997, was committed to the Department of Health and Rehabilitative Services. More than a decade later, Walker was then adjudged competent to stand trial.

During a status hearing after Walker was found competent to proceed, the parties discussed the possibility of a non-jury trial. At a subsequent status hearing, both the prosecutor and defense counsel agreed the case should be set for non-jury trial, and the trial court did so.

The state’s evidence at trial established that Walker fatally shot another man in the back of the head after the men argued about a drug transaction. During a police interview, Walker confessed to shooting the victim. Walker relied upon an insanity defense and expert witnesses presented by the state and defense differed on whether Walker met the legal definition of insanity. At the close of evidence, the court rejected Walker’s insanity defense and found him guilty as charged. The court sentenced him to life in prison.

On appeal, Walker argues that his conviction and sentence for first-degree murder amounted to per se reversible error in the absence of a written consent or evidence of an on the record oral waiver showing that it was voluntarily, knowingly, and intelligently made.

The United States and Florida Constitutions provide defendants with a fundamental right to a jury trial. State v. Upton, 658 So.2d 86, 87 (Fla.1995) (citing U.S. Const, amend. VI; Article I, § 22, Fla. Const.). However, “[a] defendant charged with a criminal offense may in writing waive a jury trial with the consent of the state (Fla. R. Crim. P. 3.260), or orally on the record after colloquy from which the court finds the waiver is voluntarily, knowingly and intelligently made.” Sinkfield v. State, 681 So.2d 838, 838 (Fla. 4th DCA 1996) (citation omitted). A defendant’s silence during trial and failure to object to the non-jury trial is not a waiver of his right to jury trial. Upton, 658 So.2d at 88. Further, “[counsel’s statement to the court that [defendant] ‘agreed to go non-jury’ [is] not a valid oral waiver of [a defendant’s] right to jury trial in the absence of the court’s requisite inquiry of the [defendant] and its findings on the record that [the defendant] voluntarily, knowingly and intelligently agreed with the waiver or acquiesced in his counsel’s statement.” Sinkfield, 681 So.2d at 839 (citations omitted).

Here, our review of the record, trial transcript, and pre-trial hearing transcripts confirms that a valid waiver — written or oral — was never consummated.

Florida courts have treated this type of error as per se reversible error. See, e.g., Racine v. State, 16 So.3d 955, 956-57 (Fla. 5th DCA 2009) (reversing battery convictions where state conceded error and record did not contain a written waiver or evidence of a valid oral waiver of jury trial); Babb v. State, 736 So.2d 35, 36 (Fla. 4th DCA 1999) (“The absence from the record of a valid waiver of Babb’s right to jury trial ... requires that we reverse the judgment and sentence ... and remand for a new trial.”); Sansom v. State, 642 So.2d 631, 632 (Fla. 1st DCA 1994) (finding that conviction for grand théft “must” be reversed where the record contained no valid waiver). Accordingly, we reverse and remand for new trial.

Reversed and remanded for new trial.

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

      . Some limited authority exists for the proposition that this type of error is subject to harmless error analysis. In Tones v. State, 43 So.3d 831, 834 (Fla. 1st DCA 2010), the court reversed a conviction for providing a false name to an officer where there was no valid waiver of jury trial in the record. The court noted that "[t]he error has not been shown to be harmless, and the State has not argued otherwise.” Id. However, Tones relied on Johnson v. State, 994 So.2d 960, 964-65 (Fla. 2008), where the court noted that the failure to obtain a valid waiver of jury trial in the second phase of a bifurcated felony DUI trial was subject to harmless error analysis. It is not evident the Florida Supreme Court in Johnson intended harmless error analysis to apply to a review of the jury trial guarantee in any context other than cases where the jury was not allowed to consider a particular element of an offense. In finding that harmless error analysis applied, the Johnson court referenced cases involving the denial of a jury finding on a particular element of the charged offense, including the required prior misdemeanors in a felony DUI case and the materiality element in a tax fraud case. Id. The instant case involves the denial of a jury trial as to all elements of the charged offense without a valid waiver.


author: KLINGENSMITH, J.

text:
    Kevin JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1349.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   KLINGENSMITH, J.

Defendant Kevin Jones (“Defendant”) pled guilty to one count of robbery with a weapon and received a youthful offender sentence of one year community control, followed by three years of probation. An affidavit of violation of community control was subsequently filed alleging Defendant failed to remain confined to his approved residence by going to a grocery store without prior approval from his community control officer (“CCO”). The trial court found Defendant violated his community control. Under the facts of this case, we find that Defendant’s actions were insufficient to constitute a willful and substantial violation, and we reverse the trial court’s finding that a violation occurred.

Defendant was a nineteen year old who still lived with his mother, did not have a driver’s license, and relied on his mother as his sole means of transportation. On the day in question, Defendant’s mother drove him to the CCO’s office. . During this visit, the CCO met with both Defendant and his mother to explain the rules of community control, including that Defendant could not go anywhere unless it was outlined in the schedule he submitted, and could not change his schedule without the CCO’s consent. Defendant appeared to understand these instructions. The schedule indicated that Defendant was supposed to go directly home after he left the CCO’s office.

Although Defendant and his mother both said they were going straight home following the meeting with the CCO, his mother made a last-minute decision to stop at the grocery store across the street from the CCO’s office to do some shopping for Thanksgiving. Defendant did not call the CCO to tell him they were stopping, nor did Defendant have control over his mother’s actions. During this unplanned stop, the mother insisted Defendant go with her into the store and carry groceries back to the car. They were in the store approximately seven to ten minutes and went straight home afterwards. However, one of the CCO’s colleagues was also in the store at that same time, noticed Defendant’s presence, and advised the CCO of Defendant’s violation of the community control requirements. Although Defendant argued that he did not choose to go to the store, but rather, was made to go there by his mother, the trial court found that Defendant willfully and substantially violated the terms of his community control.

The facts of this case are very similar to those presented in Zelaya v. State, 713 So.2d 1079 (Fla. 4th DCA 1998). In Zelaya, the defendant was on community control and worked as a landscaper; his community control required him to be at work if he was not at home. Id. A half hour after his curfew, the defendant’s community control officer spotted him at a sporting goods store carrying a box of sneakers and walking towards the cashier. Id. According to the defendant, he was riding in the back of his employer’s truck when his boss decided to make a stop at the sporting goods store before driving back to the office where the defendant could sign out and take the bus home. Id. The defendant admitted that he knew he was violating his community control but explained that he had no control over the actions of the driver of the truck who stopped to go into the store. Id. In reversing the defendant’s violation, this court found:

The obvious intent of the conditions imposed on appellant was that he either be at work or at home. When the driver, over whom he had no control, decided to go into the store, appellant was left with the choice of staying with his • crew and going into the store, or remaining alone in the truck. We conclude that his choosing to stay with his crew was neither a willful nor substantial violation, and his purchase of shoes while in the store was not substantial.

Id. at 1079-80. Similarly, there are other cases involving travel or living restrictions where courts have found that minor violations were not willful or substantial. See, e.g., Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007) (evidence that defendant changed rooms in hotel insufficient to prove that he changed residence without permission); Eubanks v. State, 903 So.2d 1005, 1006 (Fla. 2d DCA 2005) (defendant missing only two of approximately twelve required counseling classes not willful and substantial violation); Perez v. State, 884 So.2d 306, 308 (Fla. 2d DCA 2004) (probationer being twenty minutes late for required drug test not substantial violation); Boatwright v. State, 847 So.2d 1141, 1142 (Fla. 3d DCA 2003) (returning five and one half hours late from church services because the defendant got “caught up in the religiosity of the church services” and went to the bishop’s home for group counseling was not a willful or substantial violation of community control); Chamness v. State, 697 So.2d 961, 962 (Fla. 2d DCA 1997) (probationer’s use of former address on monthly probation report, after he moved to a new residence 150 feet away, was not a willful and substantial violation, where he had been warned that the mail was tampered with at his new apartment); Sanders v. State, 675 So.2d 665, 665-66 (Fla. 2d DCA 1996) (failing to submit one monthly report was not a substantial violation which supported revocation of probation).

The evidence presented at the evidentia-ry hearing showed that Defendant had no control over his mother’s decision to stop at a store after leaving the CCO’s office. Defendant was merely a passenger in the car, and had no alternative form of transportation home. Additionally, unrebutted testimony showed that Defendant was required by the mother to do whatever she told him, and she instructed him to accompany her into the store. Under the facts of this case, a seven to ten minute stop at a grocery store, occurring without Defendant’s prior knowledge or consent, was not a willful and substantial violation. See Zelaya, 713 So.2d at 1079-80.

For the reasons stated above, we find the trial court erred in finding that there was a willful and substantial violation of Defendant’s community control terms. We reverse the order finding a violation as well as the trial court’s modification of Defendant’s original sentence.

Reversed and Remanded.

STEVENSON and MAY, JJ., concur.


text:
    Hoa VUONG, Mark Pebley, Robert McKenna, Peter Murphy, Julio Reina, Rhonda Simmons, Zachary Scuderi, Charles Rollo, Nicolle Mahady, Jason Feinsod, Alan Hernandez, Roslyn Hoecker, Mary Baruch, Ana Blumenfeld, Daniel King, Leo Cordery, Beatriz Vallejo, Mina Arbuckle, Melissa Hartman, Mary Dischino, Deanne Arcodia, Christina Wlodarczyk, Donald Kehr, Jonathan Nolli, Markus Stumper, Ismael Olivan Rodriguez, Danielle Verga, Kathryn Murphy, David Cornell, Nickolas Long, Lindsey Gaboff, Patrick Murphy, Dustin Walker, Jeffrey Tyson, James Pasa, Catherine Hampton, Luis Cruz, Daniel Chan-Paredes, Antonio Fonrose, Anna Bergman, Anna Yurtayeva, on behalf of themselves and other Palm Beach County DUI, Defendants, Appellants, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 4D13-2199.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.

      Brian P. Gabriel of Gabriel & Gabriel, LLC, Jupiter, for appellants.
    Ann Marie Johnson, Tallahassee, for ap-pellee.
   STEVENSON, J.

The instant appeal arises from a chapter 120 rule challenge to Florida Administrative Code Rules governing the Florida Department of Law Enforcement’s approval and oversight of breath test instruments. Appellants contended that the rules constitute an invalid exercise of delegated legislative authority. The administrative law judge (ALJ) rejected appellants’ arguments. We affirm.

Appellants are individuals charged with DUI after submitting to a breath test on the Intoxilyzer 8000 breath instrument. Appellants submitted to a breath test pursuant to Florida’s implied consent law. The implied consent law requires that drivers submit to an “approved” test. See § 316.1932(l)(a)l.a., Fla. Stat. (2012). The legislature has charged Florida’s Department of Law Enforcement (FDLE) with responsibility for approving breath test instruments; for “regulation of the operation, inspection, and registration of breath test instruments utilized” under the driving under the influence statutes; and for promulgating rules necessary for the administration and implementation of its obligations. See § 316.1932(l)(a)2., Fla. Stat. (2012). Pursuant to the authority granted it, FDLE approved the Intoxilyzer 8000 for evidentiary use. See Fla. Admin. Code R. llD-8.003(2).

Attempting to demonstrate the inadequacy of the rules, appellants presented evidence that, after the November 2002 amendment of rule 11D-8.003 approving the Intoxilyzer 8000 but before the Intoxi-lyzer 8000 was actually put into use in Florida, difficulties during testing prompted the manufacturer to determine it was necessary to drill a hole in the instru-merit’s exhaust purge valve. The exhaust purge valve is utilized only during simulation testing and is not involved in an actual breath test. The Intoxilyzer 8000 instruments put into use in Florida come from the manufacturer with the hole drilled in the exhaust purge valve. FDLE did not “reapprove” the Intoxilyzer 8000. Appellants also presented evidence that, in 2007, there were documented problems with the calibration of the flow sensor on some instruments. Consequently, in late 2010/early 2011, FDLE began using a flow meter to test calibration of the flow sensor. Effective in 2011, FDLE’s internal guidelines require calibration of the flow sensor as part of FDLE’s annual inspection.

The gist of appellants’ claims was that Florida Administrative Code Rules 11D-8.003, 11D-8.004, and 11D-8.006 are vague, do not provide sufficient guidelines or standards, and/or vest unbridled discretion in FDLE. Appellants complained that the rules do not require breath instrument manufacturers to provide FDLE notice of modifications to an already approved model of breath instrument; do not require FDLE to retest or reapprove breath instruments modified by the manufacturer; and do not set forth criteria or guidelines addressing the retesting or re-approval of modified instruments. They also complained of the rules’ failure to specifically require or address inspection and/or calibration of the flow sensor on the breath instrument.

The burden of proving the invalidity of a challenged rule is on the petitioner. See § 120.56(l)(e), (8), Fla. Stat. (2012). Having heard the evidence, the ALJ concluded petitioners had failed to meet this burden. With regard to the drilling of the hole in the exhaust purge valve, the ALJ found the evidence failed to establish the drilling of the hole affected breath test results “in any manner” or rendered the results unreliable. The ALJ similarly concluded the evidence was insufficient to establish that “the scientific reliability of reported breath test results is related to the function of an instrument’s flow sensor” as “[t]he evidence establishes that the instrument will not report result's of a breath alcohol test if the quantity of air provided by a test subject is insufficient.”

Finding the ALJ’s factual findings to be supported by competent, substantial evidence and no error in his legal conclusions, we affirm the order appealed. See Volusia Cnty. Sch. Bd. v. Volusia Homes Builders Ass’n, 946 So.2d 1084, 1089 (Fla. 5th DCA 2006) (holding hearing officer’s legal conclusions are reviewed de novo, while factual findings must be accepted if supported by competent, substantial evidence). Appellants’ reliance on the decisions in State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988), State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992), and State v. Miles, 775 So.2d 950 (Fla.2000), is not persuasive.

Flood and Polak were not rule challenges. In both cases, police modified the breath instrument and the trier-of-fact concluded the modification was “substantial” or rendered the instrument a “different machine.” See 598 So.2d at 153, 523 So.2d at 1181. Here, the manufacturer made the decision to modify the Intoxilyzer 8000 before any instruments were put into evidentiary use in Florida, and the ALJ found the evidence failed to prove the complained-of deficiencies had impacted the reliability of the breath tests. Miles did hold that the rules governing DUI blood alcohol sampling were inadequate as they failed to contain any provisions addressing preservation of the blood sample pending testing, and all the experts agreed that proper preservation was essential to quality control. See 775 So.2d at 955. Here, however, the significance of the drilling of the hole in the exhaust, purge valve and calibration of the flow sensor was disputed, and the ALJ found the evidence failed to establish the complained-of deficiencies had any impact on the reliability of breath alcohol tests.

Having carefully reviewed the record and considered all arguments raised, the order on appeal is affirmed.

Affirmed.

WARNER and GERBER, JJ., cqncur.