author: BERGER, J.

text:
    STATE of Florida, Petitioner, v. Sharmark POWELL, Respondent.
    No. 5D13-2820.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.

      Brad King, State Attorney, and Melissa R. Pendergrass, Assistant State Attorney, Inverness, for Petitioner.
    E. Juan Lynum, of Lynum & Associates, PLLC, Orlando, for Respondent.
   BERGER, J.

The State of Florida petitions for a writ of certiorari directed at the trial court’s non-final form order, rendered on July 18, 2013, requiring the State to disclose the identities of three confidential informants who supplied information used by the Oca-la Police Department in the application for a wiretap. The State claims that the order is a departure from the essential requirements of the law, resulting in irreparable harm for which there is no remedy on appeal. We agree and quash the order under review.

Background

Agent Sams of the Ocala Police Department suspected that Todd Shevan Williams (Williams) and a number of his cohorts, including his roommate, Sharmark Powell (Powell), were confederates in a drug trafficking organization that distributed large quantities of controlled substances in Marion and Citrus Counties. Based in part on information supplied by three confidential informants, Agent Sams filed an Application for an Order Authorizing Interception of Wire, Oral and Electronic Communications pursuant to section 934.08, Florida Statutes. The application sought the interception of communications occurring to and from a certain telephone number that was believed to be utilized by Williams (“Target Telephone One”).

The three confidential informants, none of whom were aware of the other’s cooperation with law enforcement, were each interviewed by Agent Sams. All three were said to have personal knowledge of Williams’ and Powell’s nefarious activities. Specifically, Confidential Source One referred to Powell as Williams’ “right hand man” in the drug distribution ring, and stated that Powell lives with Williams and sells/distributes controlled substances for Williams in lieu of rent. Confidential Source Two was alleged to have completed a controlled buy from Williams and Powell in August 2012.

The wiretap application was granted by the circuit court. Thereafter, based on information uncovered as a result of the wiretap investigation, the State charged Powell, along with sixteen of his confederates, with various criminal offenses.

In his motion to compel disclosure of the confidential informants, Powell alleged that Agent Sams used “unreliable and seemingly fabricated information provided by these three informants” to create probable cause for a wiretap after Agent Sams admitted that he had exhausted every reliable investigative police strategy to unravel the suspected scheme. He further alleged that failure to require disclosure of the confidential informants’ identities would infringe on his rights to confrontation, due process, and compulsory process, claiming:

[T]he CIs’ integral involvement in establishing probable cause for the application to intercept the communications of a criminal enterprise of which Mr. Powell is alleged to participate in prior to the police arrest of the defendant and search of the defendant’s home require disclosure. Only the CIs can testify on these issues and on the issue of whether his information supported probable cause for the application to intercept communications.
Disclosure of the CIs is required, since they were the sole persons who made the allegations that were used to obtain a wiretap for a previously failed investigation.
[Disclosure of the identities of the CIs is required to prevent the infringement of the Defendant’s rights to confrontation and due process as guaranteed by Article I, Sections 9 and 16 of the Florida Constitution and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and to prevent the unreasonable search of the Defendant or his property, pursuant to the Fourth and Fourteenth Amendments to the United States Constitution.

At the hearing on his motion, Powell acknowledged that two of the informants were “not necessarily material witnesses.” Powell’s counsel, however, argued that Confidential Informant Two was “without question a material witness,” as he was used to purchase cocaine from Powell. Powell’s counsel questioned the veracity of Agent Sams and argued that he could not ascertain the truth of the assertions in Agent Sams’ application if he could not depose the three confidential sources.

In response, the State argued that it had no duty to disclose the three confidential informants because they were not material witnesses to the events underlying the charges and would not be offered as witnesses at trial. The State also noted that Powell’s motion was legally insufficient because it was not sworn.

Without discussing whether the defense overcame the requisite hurdles, the trial court orally granted the motion and denied the State’s request for an in-camera proceeding.

Court: Grant the defendant’s motion for disclosure of the three confidential informants, finding that the constitutional rights of the accused could be substantially infringed by nondisclosure, okay.
State: I’d ask, Your Honor, that we be allowed to do the in-camera proceeding before full disclosure of the confidential informants?
Court: I don’t want to get drawn into this. I know that there’s an allowance for that, but then again, you want me to get recused off the case if what happens to — they’re asking for in-camera. Why do they have the in-camera rule if I don’t do it, I’m thinking out loud. My first reaction is to say no because I want to call it straight down the middle. I don’t want to be accused of assisting the state or the defense. I want to be objective.

The State’s timely filed petition for writ of certiorari followed.

Discussion

In the murky world of drug dealing, the police use confidential informants to gain access to the dealers. United States v. Mills, 710 F.3d 5, 13 (1st Cir. 2013); see Harrington v. State, 110 So.2d 495, 497 (Fla. 1st DCA 1959) (“It is common knowledge that without the aid of confidential informants the discovery and prevention of crime would present such a formidable task as practically to render hopeless the efforts of those charged with law enforcement.”)- Snitching is dangerous work; confidential informants often put their lives on the line when cooperating with law enforcement. See e.g., Mills, 710 F.3d at 13. For this reason, confidentiality is key. Id. Accordingly, the State generally has the privilege of withholding the identity of a confidential informant. See Fla. R. Crim. P. 3.220(g)(2); “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement.” Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). “The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. The privilege of nondisclosure is based on sound public policy and has long been recognized by the courts for reasons such as “ ‘[t]he alarming fact that the underworld often wreaks vengeance upon informers [and] would unquestionably deter the giving of such information if the identity of the informer should be required to be disclosed in all instances.’” See Elkins v. State, 388 So.2d 1314, 1316 (Fla. 5th DCA 1980) (quoting State v. Hardy, 114 So.2d 344, 346 (Fla. 1st DCA 1959)). This privilege, however, is not absolute, and must yield in two instances: (1) when the confidential informant is to be produced at a hearing or trial, or (2) where the failure to disclose the informant’s identity will infringe upon the constitutional rights of the defendant. Fla. R. Crim. P. 3.220(g)(2). The second prong set forth in Florida Rule of Criminal Procedure 3.220(g)(2) incorporates two components, either one of which, if satisfied, will require disclosure. First, the privilege of nondisclosure must yield where the informant’s identity is relevant and helpful to the defense of the accused; and second, it must yield where the identity is essential to a fair determination of the cause at issue. Simmons v. State, 887 So.2d 1283, 1284 (Fla.2004) (citing Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623).

As the State holds the privilege of nondisclosure of the identity of its confidential informants, the burden is placed upon defendants, like Powell, claiming an exception to the rule to establish why the exception should be invoked. Treverrow v. State, 194 So.2d 250, 252 (Fla.1967); State v. LaBron, 24 So.3d 715, 717 (Fla. 4th DCA 2009) (“If the Cl’s identity is to be disclosed, it is the defendant who has the burden of showing why an exception to the rule of nondisclosure applies.”). Because none of the confidential informants are set to testify at a hearing or trial, as they are not material witnesses, the first exception to the privilege of nondisclosure is unavailable to Powell. Thus, disclosure is only required if Powell establishes either that the disclosure of the informants’ identities is relevant to his defense or essential to a fair determination of the cause at issue. See Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623.

Powell asserted below that disclosure should be compelled to preserve his constitutional rights because the identities of the informants are essential to proving his defense of an illegal wiretap. He also alleged that Confidential Source Two is “without question a material witness” as he was used to purchase cocaine from Powell, which gave rise to the possession of cocaine charge lodged against him.

“When a defendant seeks disclosure because a confidential informant’s identity or communications are allegedly relevant and helpful to his defense, the defendant must allege a legally recognized defense to the crime charged and support the defense with sworn evidence.” State v. Harklerode, 567 So.2d 982, 984 (Fla. 5th DCA 1990). Bare, unsubstantiated allegations by counsel that the defense would be hampered without disclosure are insufficient. State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991). Accordingly, in the absence of sworn allegations of a legally cognizable defense, a trial court is without authority to order disclosure. See State v. Titus, 70 So.3d 763, 763-64 (Fla. 4th DCA 2011) (granting certiorari relief as the trial court never considered sworn allegations before granting defendant’s motion to disclose the identity of a confidential informant); State v. Davila, 570 So.2d 1035, 1038 (Fla. 2d DCA 1990) (“The defendant must make a preliminary showing of the colorability of the defense prior to disclosure .... A bare allegation that failure to disclose would impede the ability to prepare a defense is not sufficient to require disclosure; the defense must be supported by sworn proof.” (citation omitted)); State v. Zamora, 534 So.2d 864, 868 (Fla. 3d DCA 1988) (providing that “Florida courts have ordered the disclosure of a confidential informant only in cases where the defendant asserted a legally recognized defense to the crime charged, supported that defense with sworn proof, and showed that the confidential informant was a material witness to this defense”). Here, as the State correctly argues, Powell not only failed to swear to the facts upon which his motion to disclose is based, but failed to offer sworn evidence of a legally cognizable defense. As such, Powell failed to carry his burden of establishing his defense by sworn proof.

We now address whether Powell met his burden of establishing that disclosure is relevant to the fair determination of the cause. We conclude he did not, as neither the motion nor argument at the hearing provided a basis for disclosure under this exception.

In his motion, Powell made the concluso-ry allegation that the disclosure of the confidential informants’ identities is essential to the fair determination of the case, since the “informants provided the probable cause for an application for an extensive and prolonged wiretap,” placing the confidential informants in the “exclusive position of being able to either corroborate or contradict the defendant on certain salient factual points to be alleged in a motion to suppress hearing.” This argument, however, is contrary to the wide range of authority holding that an informant need not be identified merely to verify probable cause for a warrant. See Harklerode, 567 So.2d at 984 (disclosure consistently denied where confidential informant acted as a tipster or merely provided police with probable cause for a search warrant or an arrest); see also State v. Burgos, 985 So.2d 642, 643 (Fla. 2d DCA 2008) (“As a general rule, an informant’s identity need not be disclosed when the informant’s sole role is to provide probable cause in support of a search warrant.”); Mashke, 577 So.2d at 612 (where State does not intend to call the confidential informant as a witness, the disclosure of the confidential informant’s identity, who only supplied police with information establishing probable cause for a search warrant, is not essential to a fair determination of the case); State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985) (“ ‘[M]ere speculation as to the usefulness of the informant’s testimony to the defendant is insufficient to justify disclosure of his identity.’” (quoting United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir.1977))); State v. Chamblin, 418 So.2d 1152, 1154 (Fla. 1st DCA 1982) (“The State is not required to disclose the identity of a confidential informant who merely furnishes the probable cause basis for a search or arrest.”).

Powell’s entire argument for disclosure rests on his suspicion, unsupported by any sworn evidence, that the wiretap application was fraudulent, and that he is entitled to access to the confidential informants in order to develop his theory of defense and gain ammunition to attack the validity of the wiretap application in a motion to suppress. We reject this argument for the same reasons outlined by our sister court in Burgos, wherein the Second District followed the well-established rule and required more than bare allegations in order to justify invading the State’s privilege of nondisclosure. 985 So.2d at 643-45. In Burgos, the Second District found that the defendant, who sought disclosure of the identity of a confidential informant for the purpose of challenging the propriety of the issuance of a search warrant, failed to meet his burden to establish an exception to the State’s privilege of nondisclosure, because he failed to provide allegations or evidence that the police detective falsified evidence in his affidavit in support of the warrant. Id.

Inasmuch as Powell’s motion failed to assert sufficient grounds to show that disclosure of the identities of the three confidential informants or the contents of their communications is relevant and helpful to his defense or essential to a fair determination of the cause, we hold that the trial court’s order requiring disclosure departed from the essential requirements of the law. Accordingly,- we grant the State’s petition and quash the order compelling disclosure of the confidential informants.

PETITION GRANTED.

PALMER and LAMBERT, JJ., concur.

      . Nineteen charges were lodged against Powell: racketeering (Count Two); conspiracy to commit racketeering by selling, purchasing, manufacturing, delivering, bringing into the state, or having in his actual or constructive possession Oxycodone (14-28 grams), Hydro-morphone (14-28 grams), Morphine (more than 4 grams) and Alprazolam (Count Three); Conspiracy to Commit Trafficking in Oxyco-done (Counts Five, Eight and Thirty-Two); Conspiracy to Commit Trafficking in Hydro-morphone (Count Six); Conspiracy to Commit Possession of Alprazolam with Intent to Sell/Distribute (Count Seven); Conspiracy to Commit Trafficking in Morphine (Count Nine); Driving While License Canceled, Suspended or Revoked (Counts Ten, Fourteen, Twenty-Seven and Thirty-Four); Possession of Alprazolam with Intent to Sell/Distribute (Count Eleven); Trafficking in Oxycodone (Counts Twelve, Sixteen and Thirty-Three); Trafficking in Hydromorphone (Count Thirteen); Trafficking in Morphine (Count Fifteen); and Conspiracy to Commit Manufacture of Methamphetamine (Count Twenty-Two).

      . In the wiretap application, Agent Sams asserted that he had exhausted or ruled out other investigative techniques and the only available technique that had a reasonable likelihood of dismantling the drug trafficking organization was intercepting the communications of Target Telephone One. He also asserted that due to the violent nature of Williams’ drug trafficking organization, the police did not feel that infiltrating the organization with a confidential informant or an undercover law enforcement agent was a viable option.

      . The State maintains that the confidential informants were not involved in the wiretap itself, did not participate in any conversations intercepted from the wiretap, did nothing beyond providing information to establish probable cause to apply for the wiretap, and were not involved in any of the search warrants or the arrests.

      . The felony court order disposition granting "Def [sic] motion to compel disclosure of confidential informants” rendered on July 18, 2013, memorialized the trial court’s oral ruling without further comment or the benefit of a written order.

      .The trial judge also interjected his own personal experience with a detective, presumably as support for his ruling. We decline to address this further, except to note that what happened in an unrelated case while the trial judge was a defense attorney is irrelevant to the issue of whether the defendant met his burden in this case to overcome the State’s privilege of nondisclosure.

      . Florida Rule of Criminal Procedure 3.220(g)(2) provides: "Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant's identity will infringe the constitutional rights of the defendant.”

      . This statement is not correct. While it is true that Confidential Source Two was part of a controlled buy in August 2012, no charges resulted from the buy. We note that Powell’s counsel has since conceded that it was error to make such a misleading argument at the hearing.

      . We reject Powell’s assertion that he did not need to offer sworn proof because he only sought to use the informants' testimony in support of his defense at a suppression hearing and not at trial.

      . The record before us does not support the need for an in camera review.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell Glen ELMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3138.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After Russell Elmer’s convictions for capital sexual battery of his step-daughter were reversed on appeal, he pled no contest on remand to three counts of attempted sexual battery and agreed to pay restitution for the victim’s medical expenses and counseling. He now appeals the final restitution order, arguing first that the record does not demonstrate that he knowingly, intelligently, and voluntarily waived his presence at the hearing. Although the State correctly concedes error, neither party addresses the issue of whether this unpreserved error is fundamental. It is not. Although such error is often fundamental, case law holds that it is not fundamental when the defendant agrees to pay restitution as part of a plea agreement, the defendant has notice of the hearing, and his counsel affirmatively waives his presence at the hearing. Accordingly, we affirm as to this issue. Elmer also attacks each component of restitution ordered as improper, but we find error only in the award of lost wages, which is conceded by the State. Finally, Elmer is also correct that the trial court erred in admitting the victim’s treatment records without first conducting a Richardson hearing. Having reviewed the treatment records in light of the entire record, however, we conclude that the error in admitting the treatment records at the end of the restitution hearing was harmless beyond a reasonable doubt. No other issue merits discussion.

Relevant Facts

Elmer was arrested in 2010 for sexual crimes against his step-daughter that occurred before April 1989. In 2011, he was tried and convicted of three counts of (capital) sexual battery upon a person under twelve years old. In 2012, this court reversed his convictions and remanded for a new trial. Elmer v. State, 114 So.3d 198 (Fla. 5th DCA 2012).

On remand in January 2013, Elmer entered into a plea agreement, pursuant to which he pled no contest to three counts of attempted sexual battery upon a person under twelve years old. He received five years in prison (with credit for time served), followed by 7.5 years of sex offender probation. As a condition of probation, Elmer agreed to pay “restitution to victim or victim’s family for any medical expenses and counseling — restitution amount is to be determined.”

It appears from the record that Elmer was released from prison shortly after his sentence was imposed. In February 2013, Elmer filed a motion to modify probation. The court minutes for the hearing on that case reflect that he was present, but not in custody. In May, Elmer’s probation officer asked the court to modify his curfew so that he could commute to work in Hernan-do County.

Court minutes for June 18, 2003, reflect that Elmer’s presence was waived for a restitution hearing, which was continued to July 16th. Court minutes for July 30th reflect that Elmer’s presence was waived for a restitution hearing in which restitution was ordered.

At the outset of the July 30th hearing, the following exchange occurred:

The Court: Russell Elmer. You’re waiving your client’s appearance?
[Defense Attorney]: I’m waiving my client’s appearance.

The 36-year-old victim testified that she was the victim of several sexual batteries by Elmer that occurred when she was younger than twelve years old. She suffered emotional and psychiatric problems requiring treatment. She first sought help in 2011 at The Refuge, an inpatient trauma rehabilitation center with intense counseling. She stayed there five weeks and was treated for post-traumatic stress disorder (PTSD).

Before entering The Refuge, she spent three days at The Vines, a detox facility, to detoxify from alcohol and Xanax dependence. Although The Vines did not address the causes of her addiction, The Refuge required her to detoxify there before entering its treatment program. Her addiction was her way of “dealing with the pain and the hurt.” The Vines charged her $2,200 and The Refuge charged her $18,480. Insurance did not cover those bills. She paid some of the bill for The Refuge, but there was an $11,000 balance outstanding. She signed a contract promising payment.

The victim requested lost wages of $875 for herself and $2,205 for her husband while she was in treatment. The victim’s husband had to stay home from his lawn business with their five children while she was gone. On cross-exam, the victim admitted that she left her employment as a paralegal to enter treatment and did not return to the same employer afterward.

The victim also sought reimbursement for other expenses relating to her treatment, such as travel costs to and from treatment. In total, the State sought $24,252.42 in restitution, which the trial court ordered. In addition to the victim’s testimony linking these costs to Elmer’s crimes, the State called a certified trauma therapist and addictions professional from The Refuge, who helped treat the victim for PTSD, depression, anxiety and poly-substance abuse. This mental health professional linked the victim’s mental health and substance abuse problems to the .abuse that she suffered at the hands of Elmer. This witness also testified that the victim should have stayed longer at The Refuge, but did not have the financial resources to do so.

When the prosecutor attempted to introduce the victim’s treatment records from The Refuge, defense counsel objected because the prosecutor had not provided the records to him beforehand. The trial court found the victim’s treatment records to be cumulative of what had already been testified to by the victim and the mental health professional from The Refuge, and admitted the same.

In closing argument, defense counsel argued that although Elmer had agreed to pay restitution, case law mandated that such restitution was limited to what was proven to arise out of the offenses charged. Defense counsel argued that: (1) the amounts sought were “exorbitant” given that the crimes occurred about thirty years before; (2) there was “some connection” [between the crimes and restitution sought], “but all of it cannot be attributed to what happened thirty years ago” and the State failed to prove what percentage was attributable to Elmer’s conduct; (3) restitution for the victim’s lost wages was improper because she left her employment to go into treatment and did not return; and (4) restitution for the husband’s lost wages was improper because he did not have much lawn business in January.

The court ordered restitution for the entire amount sought, finding a “rock solid connection and nexus to the posttraumatic stress of which this woman suffers and the need for it to be taken care of at The Refuge, A Healing Place.” The court reiterated that it did not believe that the victim was trying to “‘get well’ at the instances of Russell Elmer,” but instead, “every single burden that has been visited upon” the victim resulted from “the criminality of Russell Elmer.”

After the court entered restitution orders, Elmer timely appealed. He then filed a motion to correct sentencing error pursuant to rule 3.800(b)(2). He argued that: (1) under the statute in effect at the time of the crime, only the victim could receive restitution, thus restitution for her husband’s lost wages was improper; and (2) under that same statute, restitution for the victim’s lost wages was only proper if the victim suffered bodily injury from the crime, which did not occur in this case. Upon being ordered to respond, the State conceded that the victim’s husband’s lost wages were not awardable, but asserted the victim’s lost wages were appropriate because the applicable statute did not require bodily injury. The court agreed with the State’s position, striking the lost wages for the victim’s husband, but retaining them for the victim.

Waiver of Elmer’s Presence at Hearing

Elmer argues, and the State agrees, that the trial court reversibly erred by conducting a restitution hearing without determining if Elmer’s waiver of presence was knowing, intelligent and voluntary. Defendants have a constitutional right to be present at all stages of a criminal proceedings, including restitution hearings. J.C. v. State, 1 So.3d 1196, 1197 (Fla. 5th DCA 2009). The State has the burden to show that the defendant knowingly and voluntarily waived his right to be present, either by an express waiver or as implied by the circumstances of his voluntary absence. Id. Although a defendant may waive this right and exercise constructive presence through counsel, the court must determine that the defendant’s waiver is knowing, intelligent, and voluntary. Knespler v. State, 72 So.3d 299, 300 (Fla. 4th DCA 2011); M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006). The right to be present is a basic right that the defendant’s attorney cannot waive without the fully informed and publicly acknowledged consent of the defendant. Taylor v. Illinois, 484 U.S. 400, 418 n. 24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); see also 22 Fla. Prac., Criminal Procedure § 12:2 (2014 ed.) (“Accordingly, a trial judge may not accept the simple representation of a defense attorney that his client has waived his right to be present at a stage of a criminal proceeding at which the defendant has the right to be present. Instead, the judge may lawfully conduct the proceeding only upon establishment on the record that the defendant has knowingly, intelligently, and voluntarily waived his right to be present.”).

In this case, the trial court simply asked defense counsel if he waived Elmer’s presence and defense counsel said yes. The State concedes that it did not establish that Elmer either expressly waived his presence or voluntarily absented himself. And, both parties agree that reversal and remand for a new restitution hearing is appropriate. Despite the parties’ agreement on the need to reverse, neither party addresses the obvious procedural bar, which is that this issue was not preserved below, either at the restitution hearing or in Elmer’s rule 3.800(b) motion. None of the cases above that reversed on the merits discussed preservation or fundamental error. See Knespler, 72 So.3d at 300; J.C., 1 So.3d at 1197; M.W.G., 945 So.2d at 600.

In general, an unpreserved error may be considered on appeal only if the error is fundamental. Rosado v. State, 129 So.3d 1104, 1108 (Fla. 5th DCA 2013). This general rule also applies to sentencing errors, like this one, that occur during the sentencing process and are therefore not required to be raised in a rule 3.800(b) motion. Id. Fundamental error in this context must equate to a denial of due process. Id.

This court has stated that “[generally ... any error in denying a defendant his or her right to be present at a critical stage of any proceeding is fundamental error.” Blair v. State, 25 So.3d 46, 48 (Fla. 5th DCA 2009). However, Blair dealt with a defendant being absent on the final day of trial, which is expressly designated a critical stage of trial in Florida Rule of Criminal Procedure 3.180. Even violations of rule 3.180 do not automatically require reversal. Instead, “[t]he issue presented in circumstances involving purported violations of rule 3.180 is whether fundamental fairness has been thwarted which determines ‘whether the error is reversible.’ ” Blair, 25 So.3d at 48 (quoting Pomeranz v. State, 703 So.2d 465, 471 (Fla.1997)). Although a restitution hearing is a stage of a criminal proceeding for which a defendant has a right to be present, it is not expressly listed in rule 3.180 as a critical stage.

Three cases on point are all from the Fourth District and none considered such error fundamental. In Whitten v. State, 830 So.2d 247 (Fla. 4th DCA 2002), the defendant agreed to pay restitution and waived causation as to that restitution in his plea agreement. At a restitution hearing, his attorney objected to the amount sought and also to the defendant’s absence. The defendant appealed the resulting restitution orders. The appellate court began its analysis by noting that “[a] defendant has the right to be present at the restitution hearing, but he must expressly object to preserve the error for appeal.” Id. at 248. The court reversed and remanded for a new hearing in part because “the defendant objected to the hearing being conducted in his absence.” Id.

Whitten relied on Schotsch v. State, 670 So.2d 127 (Fla. 4th DCA 1996). In that case, the defendant agreed to pay restitution in his plea agreement, with the amount to be determined at a hearing. At the restitution hearing, “defense counsel affirmatively waived defendant’s presence on the record.” Id. at 128. The defendant appealed the restitution order based on his not being present and the lack of evidence supporting the amount. The appellate court affirmed. Regarding his lack of presence argument, the court stated:

Without an objection to defendant’s absence having been raised at the restitution hearing, and in light of defendant’s plea agreement and defense counsel’s affirmative waiver, defendant did not properly preserve the issue. See Strickland v. State, 610 So.2d 705 (Fla. 4th DCA 1992). Due process is not implicated here where there has been an agreement by defendant to pay restitution, notice and an opportunity to be heard, and an affirmative waiver. Cf. Wood v. State, 544 So.2d 1004 (Fla.1989).

Id.

Finally, in Strickland, supra, the court agreed that the defendant could not complain about his absence from a restitution hearing for the first time on appeal because he agreed to pay restitution in his plea agreement, had notice of the restitution hearing, and his counsel did not expressly object to his absence due to confinement in prison. 610 So.2d at 706-07. We agree with the Fourth District’s fundamental error analysis in this context, and hold that where a defendant affirmatively agrees to pay restitution as part of his or her plea agreement, has notice and an opportunity to be heard at the subsequent restitution hearing, and has his or her presence at the restitution hearing affirmatively waived by counsel on the record, reversal is not required based upon the defendant’s lack of presence at the hearing.

In the instant case, Elmer expressly agreed to pay restitution to the victim for “any medical expenses and counseling” as part of his negotiated plea. Elmer was clearly given notice of the hearing date and time through counsel, and has never asserted that he did not receive notice nor argued lack of notice as a basis for reversal. Finally, Elmer’s attorney “affirmatively waived” his presence on the record. Elmer does not argue fundamental error and the record does not support a finding of fundamental error. Accordingly, we find no basis for reversal as to this issue.

Restitution for the Victim’s Lost Wages

Elmer argues that the victim’s lost wages are not recoverable because the statute in effect at the time of the crime limited such recovery to cases involving bodily injury. See § 775.089(2)(c), Fla. Stat. (1988) (“When an offense has resulted in bodily injury to a victim, a restitution order entered pursuant to subsection (1) shall require that the defendant: ... (c) Reimburse the victim for income lost by such victim as a result of the offense.”). This argument was preserved and the State properly concedes error. See Garay v. State, 708 So.2d 631, 633 (Fla. 5th DCA 1998) (“[T]his court has held that lost profits or income are not recoverable under the 1993 version of the restitution statute, in the absence of bodily injury.”); Osteen v. State, 616 So.2d 1215 (Fla. 5th DCA 1993). Accordingly, we reverse the lost wages portion of the restitution order.

Admission of Treatment Records

Elmer argues that the trial court erred in admitting the victim’s treatment records without first conducting a Richardson hearing. The State asserts, inter alia, that Elmer is not entitled to any relief because he has not demonstrated any prejudice from the admission of the victim’s treatments records, that error, if any, was harmless beyond a reasonable doubt. When the State’s failure to comply with its discovery obligation is brought to the court’s attention, the court must conduct a Richardson hearing to determine if the defendant has been prejudiced. State v. Evans, 770 So.2d 1174 (Fla.2000); Stimus v. State, 886 So.2d 996 (Fla. 5th DCA 2004). A court’s failure to conduct a Richardson hearing can be found harmless only if the appellate court can determine, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the discovery violation. Scipio v. State, 928 So.2d 1138, 1149-50 (Fla.2006). Procedural prejudice in this context means whether the defense was materially hindered in its trial preparation and strategy by the discovery violation. Id. In this case, the record is sufficient for us to conclude that the defense was not prejudiced by the discovery violation because the records were, as recognized by the trial court, simply cumulative of the testimony of the witnesses who were timely disclosed by the State as to: (1) the victim’s diagnosis, (2) her history of sexual abuse by the defendant from ages eleven to fifteen, and (3) the causal relationship between the defendant’s sexual abuse and her substance abuse beginning at age twelve.

Conclusion

In summary, we affirm the restitution in all respects except for the amount included for the victim’s lost wages during her treatment. On remand, the trial court is directed to issue a new restitution order that excludes the lost wages amount.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

PALMER, LAWSON and BERGER, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . The victim initially reported the abuse to her mother and to police in 1995, when she was fifteen years old, but Elmer was not arrested until 2010, after he had admitted the abuse to the victim in a controlled phone call.


text:
    George Terry DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-149.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.
    George T. Durden, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

George Terry Durden appeals the order summarily dismissing as untimely his motion for jail credit filed pursuant to rule 3.801, Florida Rules of Criminal Procedure. Durden filed his motion under the mailbox rule on December 2, 2013. Effective July 1, 2013, all jail credit issues must be handled pursuant to Florida Rule of Criminal Procedure 3.801, which limits the time for seeking correction of jail credit to one year from the date the sentence becomes final. Defendants with sentences such as Durden’s that became final before that time would have until July 1, 2014, to file a jail credit claim. Therefore, the trial court erroneously dismissed Durden’s rule 3.801 motion as untimely. Accordingly, we reverse the order under review and remand this case to the trial court to consider Durden’s timely filed motion.

REVERSED and REMANDED.

SAWAYA, ORFINGER, and LAWSON, JJ., concur.

      . On December 5, 2013, the Florida Supreme Court clarified, by amendment to the rule, that a one-year grace period for filing a rule 3.801 motion exists for defendants whose sentences were imposed prior to July 1, 2013. See In re Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate Procedure, 132 So.3d 734, 746-47 (Fla.2013) (amending rule 3.801(b) to add, "For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014”).


text:
    Willie MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4297.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.

      Willie Mitchell, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying the rule 3.801 motion filed by appellant, Willie Mitchell, based on the facial insufficiency of the motion. Such affirmance is without prejudice to Mitchell amending his motion to state a facially sufficient claim. See Fla. R. Crim. P. 3.801(e).

PALMER, EVANDER and LAMBERT, JJ., concur.


text:
    James H. SCHARFSCHWERDT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-531.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.
    James H. Scharfschwerdt, Bonifay, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. CF11-507, in the Circuit Court in and for St. Johns County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

TORPY, CJ., ORFINGER and EVANDER, JJ. concur.


author: TORPY, C.J.

text:
    Sia-Mack ALAVI and Valerie Alavi, Appellants, v. Francisco A. GARCIA, Appellee.
    No. 5D13-473.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.

      Shyam N. Dixit of Dixit Law Firm, P.A., Tampa, for Appellants.
    Joseph C. Shoemaker of Bogin, Munns & Munns, PA, Leesburg, for Appellee.
   TORPY, C.J.

Appellants challenge the summary judgment entered against them in this action on a promissory note. Because we repeatedly see this issue and there appears to be no precedent directly on point, we address Appellants’ contention that Appel-lee’s failure to file the original note at least twenty days before the summary judgment hearing was fatal to his application for summary judgment. We affirm the summary judgment.

This case involves the interplay between Florida Rule of Civil Procedure 1.510 and section 90.953, Florida Statutes, commonly known as the best evidence rule. Rule 1.510(e) expressly authorizes the attachment of copies of documents to a summary judgment affidavit, but the affidavit must “set forth such facts as would be admissible in evidence.” The best evidence rule provides that a duplicate of a document is admissible to the same extent as an original, unless the document is a negotiable instrument. § 90.953(1), Fla. Stat.

Appellants argue that the best evidence rule applies to summary judgment motions and that the original note must be attached to the affidavit or filed at least twenty days before the hearing. We disagree. The best evidence rule applies to proceedings wherein evidence is introduced. A summary judgment hearing is not such a proceeding. Evidence is not “admitted” in a summary judgment hearing. The purpose of the hearing is to determine whether a trial is necessary. The summary judgment affidavit need only set forth facts that “would be” admissible in a trial. With respect to a note, this means that the affiant must properly authenticate the note and set forth a factual foundation for its admissibility. This foundation may be shown by reference to a copy of the original note that is attached either to the affidavit or the complaint. See Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719 (Fla. 4th DCA 1978) (holding that true and correct copies of note and mortgage attached to complaint satisfied requirements of rule 1.510(e)).

Even assuming that the best evidence rule applies in the summary judgment context, we hold that the presentment of the original note at or before the hearing satisfies that rule. See Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58 (Fla. 4th DCA 2012) (best evidence rule satisfied when original note is filed with court prior to trial, even if copies not admitted in evidence).

Of course, the original note must be surrendered before judgment may be entered unless it is properly re-established through pleadings and proof that the instrument is lost or destroyed. Id. at 62. The reason for this requirement is that a negotiable instrument is just that — negotiable. If it is not removed from the stream of commerce, there is a risk that it might be thereafter negotiated. Id. To satisfy the “surrender” requirement, it is not necessary that the original note be attached to the affidavit in support of summary judgment, provided that it is surrendered to the court by filing it with the clerk or judge before judgment is entered on the note. Id.

This does not mean that an original note may be offered at a hearing for the first time to supply some missing piece of the pleading puzzle, such as ownership of the note. That is what happened in the case relied upon by Appellants, Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010). There, the plaintiff bank attached a copy of a mortgage to its complaint that did not identify it as the mortgagee. Neither the note nor an assignment to the plaintiff were attached to the complaint. The plaintiff sought summary judgment and filed an affidavit in support. It again failed to attach to the affidavit either the note or an assignment of the note to it. Instead, less than twenty days before the scheduled hearing, the plaintiff “filed” the original note and assignment, which, for the first time in its pleadings, demonstrated its ownership of the note and mortgage. On appeal from the summary judgment in favor of the plaintiff, our sister court reversed because the note and assignment were not timely served. This case does not stand for the proposition cited by Appellants, that an original note must be filed at least twenty days before the hearing, when the purpose for filing the note is to surrender it as a precondition to obtaining a judgment.

We have carefully considered Appellants’ other points on appeal and conclude that they lack merit.

AFFIRMED.

SAWAYA and BERGER, JJ., concur.


text:
    Lennie RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3043.
    District Court of Appeal of Florida, First District.
    June 23, 2014.
    Lennie Rodgers, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Lennie Rodgers, appeals the dismissal of a postconviction motion challenging his conviction and sentence, which he entitled “Writ of Habeas Corpus for Illegal Detainment and Ineffective Assistance of Counsel by Deprivation of Constitutional Rights.” The gist of his motion was that his trial counsel was ineffective for not attempting to suppress statements obtained from a recording device during a sting inside his home and for advising him to enter a plea. Because we find no jurisdictional problem with the circuit court’s ability to review the merits of Mr. Rodgers’ motion, we reverse and remand.

It appears that the trial court dismissed the case below ostensibly because Mr. Rodgers mislabeled his pleading as a motion for “writ of habeas corpus.” Mr. Rodgers’ motion did not actually constitute a genuine habeas petition, however, because he was challenging his conviction and sentence, not his detention. Postcon-viction relief from a conviction and sentence are appropriately sought by filing a motion under Florida Rule of Criminal Procedure 3.850. But it is not typically fatal, or a jurisdiction problem, to mislabel the motion. In fact, circuit courts routinely “convert an improperly filed habeas corpus petition into a [Rule] 3.850 motion.” Razz v. State, 828 So.2d 433, 434 (Fla. 1st DCA 2002); Hall v. State, 85 So.3d 1116, 1117 (Fla. 4th DCA 2012) (“the court could have considered the claim under rule 3.850 because it was filed within the two-year window for seeking relief under the rule.”); Watts v. State, 985 So.2d 21, 22 (Fla. 2d DCA 2008) (concluding that “the circuit court should have treated [a habeas corpus] petition as a motion for postconviction relief, despite its improper title.”). See also Art. V, § 2(a), Fla. Const. (requiring court rules prohibiting cases from being dismissed because an improper remedy has been sought).

In addition, Mr. Rodgers has filed in the correct court. Because Mr. Rodgers was convicted and sentenced in circuit court in Washington County less than two years before filing his motion there, no jurisdictional bar appears on the face of the record that prevents the circuit court from reviewing his motion. See, e.g., Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996) (noting that the county where the plea was accepted and not county of incarceration has jurisdiction to hear a collateral challenge). See also Zuluaga v. State, Dept. of Corr., 32 So.3d 674, 677 (Fla. 1st DCA 2010) (noting that Rule 3.800(a) allows a court to correct an illegal sentence “imposed by it”).

For these reasons, we reverse the order dismissing for lack of jurisdiction and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., concur.


text:
    H. Lee MILLS, Appellant, v. Helen M. MILLS, Appellee.
    No. 1D13-2152.
    District Court of Appeal of Florida, First District.
    June 24, 2014.

      Larry E. Ciesla, Brent G. Siegel, and Nicolas B. Harvey of Siegel Hughes & Ross, Gainesville, for Appellant.
    Charles W. Littell, Scruggs & Carmichael, Gainesville; Jesse Caedington, Holden Carpenter & Roscow, Gainesville; Judith Paul, Belo & Paul, LLC, Gainesville; Shannon M. Miller, Gainesville; and Jennifer Cates Lester, Dean Mead & Bovay, P.A., Gainesville, for Appellee.
   PER CURIAM.

The issue on appeal is whether the trial court properly granted a motion for involuntary dismissal of an incapacity proceeding. Appellant H. Lee Mills filed a petition to determine the capacity of his mother, Appellee Helen M. Mills, in order to potentially challenge certain changes that were made to his parents’ estate planning documents by other family members. In his petition, Mr. Mills described his mother’s mental and physical health as “declining” and stated that “[h]er memory is failing and she exhibits confusion, irrationality and fabrication in her behavior.” During his case-in-chief, several witnesses offered testimony. Mrs. Mills’s granddaughter testified about her grandmother’s phobias, routines, examples of odd behavior throughout the years, and said that as long “as you stayed out of her path, you were fine” because she was “like a loaded cannon waiting to explode.” An expert committee of three medical professionals also examined Mrs. Mills and unanimously concluded that she lacked capacity. On cross-examination, counsel for Mrs. Mills and counsel for her other son, Lyn Mills, who intervened in the matter, attempted to impeach some of the assumptions and statements made by the examining committee. In addition, Mrs. Mills’s primary care physician testified that she was frail and probably weak, that her husband’s medical conditions were causing her a lot of mental anguish, but that he felt as though “she was very competent, able to make decisions.”

At the conclusion of Mr. Mills’s ease-in-chief, Mrs. Mills and Lyn Mills moved for an involuntary dismissal, which the trial court granted. The trial court’s Order of Involuntary Dismissal states that Mr. Mills did not meet his burden of proving incapacity by clear and convincing evidence. This was error because the correct burden of proof for granting or denying a motion for involuntary dismissal is competent substantial evidence. See Curls v. Tew, 346 So.2d 1242, 1243 (Fla. 1st DCA 1977); Crowe v. Crowe, 763 So.2d 1183, 1184 (Fla. 4th DCA 2000); Teller v. Richert, 744 So.2d 1230, 1231 (Fla. 3d DCA 1999); Valdes v. Ass’n I.N.E.D., H.M.O., Inc., 667 So.2d 856, 857 (Fla. 3d DCA 1996).

It was also improper for the trial court to weigh the evidence, even if conflicting, at the conclusion of Mr. Mills’s case-in-chief because that task is reserved for after all of the evidence has been offered. This Court has succinctly stated that “[i]f substantial competent evidence has been adduced, though conflicting, which, when considered in the light most favorable to the non-moving party would sustain a judgment in favor of that party then the motion should not be granted.” Curls, 346 So.2d at 1243. This is true even though the trial judge may not personally feel that Mr. Mills sustained his burden of proof at that point in the trial. See Tillman v. Baskin, 260 So.2d 509, 511 (Fla.1972) (holding that a trial judge cannot weigh evidence when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff.) It was premature for the trial court to weigh evidence, such as the examining committee’s opinions. Accordingly, the order on appeal is reversed and the matter is remanded to the lower court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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

      . Now deceased, but the case is not moot because there are collateral legal consequences that affect Mr. Mills’s rights which prevent an otherwise moot case from being dismissed.


text:
    Russell SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2444.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Russell Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Donald ADAMS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2421.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Donald Adams, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    Jerome BLACKSHEAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1101.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Jerome Blackshear, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because the circuit court has granted the petition for writ of mandamus filed below, the petition for writ of mandamus is dismissed as moot. Any objection petitioner has to the lower tribunal clerk’s compliance with the circuit court’s order is properly filed with the circuit court.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    PROFESSIONAL HOME HEALTH SERVICES, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D14-1911.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    James M. Barclay of the Law Office of James M. Barclay, P.A., Tallahassee; Daniel Loren Leyton and Javier Talamo of Kravitz, Talamo & Leyton, L.L.P., Miami and Hialeah, for Appellant.
    Tracy Lee George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s unopposed motion to remand filed in this case, the final order on appeal is hereby vacated, and this case is remanded for further proceedings pursuant to sections 120.569 and 120.57(2), Florida Statutes (2013).

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Timothy FLOWERS and Cathleen Flowers, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, etc., et al., Appellee.
    No. 5D13-3828.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2014.

      Carl Michael Duncan of Duncan Law Offices, P. A., Tavares, for Appellants.
    Ronnie J. Bitman and Allison M. Morat of Pearson Bitman, LLP, Maitland, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Concession of Error, the circuit court’s September 25, 2013 Final Judgment of Foreclosure is reversed and this cause is remanded to the circuit court for further proceedings.

REVERSED and REMANDED.

PALMER, ORFINGER and LAMBERT, JJ., concur.


text:
    William Nathaniel TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2832.
    District Court of Appeal of Florida, First District.
    June 27, 2014.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

William Nathaniel Taylor appeals his convictions and sentences for aggravated battery and resisting arrest without violence. Taylor argues the trial court reversibly erred when, believing it could not appoint standby counsel, it forced him to be represented at trial by appointed counsel despite finding he had knowingly and voluntarily waived counsel and had unequivocally asserted his right to self-representation. We agree, and the State properly concedes that the trial court erred. See Behr v. Bell, 646 So.2d 837, 837 (Fla. 1st DCA 1994) (“After Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ], it is clear that the trial court may appoint ‘standby counsel’ for a defendant who successfully asserts his right to represent himself at trial.”); see also McKenzie v. State, 29 So.3d 272, 284 (Fla.2010) (observing that standby counsel can help defendant “overcome procedural or evidentiary obstacles” without infringing on defendant’s constitutional right to self-representation). Because the error in not allowing Taylor to defend himself is structural and not subject to harmless error review, see Neal v. State, 132 So.3d 949, 951 (Fla. 1st DCA 2014), we reverse and remand for a new trial.

REVERSED and REMANDED.

VAN NORTWICK, PADOVANO and MARSTILLER, JJ., concur.


author: MAKAR, J.

text:
    LEVY COUNTY SHERIFF’S OFFICE/North American Risk Services, Appellants, v. Herman ALLEN, Appellee.
    No. 1D13-5020.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    James N. McConnaughhay of MeCon-naughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellants.
    Sharon H. Proctor of Proctor Appellate Law, P.A., Merritt Island, and Lance F. Avera of Avera & Smith, LLC, Gainesville, for Appellee.
   MAKAR, J.

While driving his personal car to work, Deputy Herman Allen came upon a tractor-trailer parked in the right-of-way and jutting into his lane. He decided to take steps to protect other motorists from the hazard, but ran into the tractor-trailer before he could do so. The question we address is whether Deputy Allen’s injuries are compensable because he was “acting within the course of employment” under section 440.091(1), Florida Statutes, or non-compensable because he was “going to or coming from” work under 440.092(2), Florida Statutes.

I.

Deputy Allen is a 41-year veteran of the Levy County Sheriffs Department. On February 11, 2013, he left his Cedar Key home in the early morning hours, driving eastbound on Highway 24 en route to his job of providing security at the county courthouse in Bronson, Florida. He was in his personal vehicle, wore his uniform, and carried his assigned badge and gun. It was about 6 a.m. and “real dark” when he saw a tractor-trailer stopped and jutting out four to five feet into the roadway, partially blocking his lane. He testified that he instantaneously became concerned about the safety of other motorists and intended to stop, call a road deputy, try to get the vehicle off the roadway, and direct traffic. Before he could accomplish any of those plans, Deputy Allen was unable to avoid hitting the tractor-trailer, which caused him significant injuries (charges against both the tractor-trailer driver and Deputy Allen were later dropped).

The employer-carrier disputed that Deputy Allen’s accident arose out of his employment, arguing that it arose during his personal time while going to work. It also argued that Deputy Allen’s primary responsibility was to provide courthouse security services, and that these more limited obligations govern whether he was acting within his course of employment in deciding to intervene when he spotted the tractor-trailer. At the evidentiary hearing, Deputy Allen and other Levy County Sheriffs Office employees testified that the office has a policy that requires off-duty officers to conduct themselves as if they were on-duty to resolve hazards they observe. Based on this testimony, the trial court concluded that Deputy Allen’s “duty assignment as courthouse security does not relieve him of his obligation to resolve hazards when he sees them while off-duty. [Deputy Allen’s] fundamental, primary obligation is to safeguard the citizens of Levy County and Florida.... By protecting motorists from road hazards [Deputy Allen] is discharging one of his primary obligations.”

Based upon her factual findings, the judge of compensation claims (JCC) analyzed the applicability of two statutory provisions. The first, entitled “Going and coming,” states the general rule that “[a]n injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.” § 440.092(2), Fla. Stat.

Noting that the section’s two exceptions did not apply (the injury did not occur “during the officer’s work period or while going to or coming from work in an official law enforcement vehicle”), the JCC turned to the provisions of section 440.091(1), which provides that an “employee is considered to have been acting within the course of employment” if the employee:

(a) Is elected, appointed, or employed full time by a municipality, the state, or any political subdivision and is vested with authority to bear arms and make arrests and the employee’s primary responsibility is the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state;
(b) Was discharging that primary responsibility within the state in a place and under circumstances reasonably consistent with that primary responsibility; and
(c) Was not engaged in services for which he or she was paid by a private employer, and the employee and his or her public employer had no agreement providing for workers’ compensation coverage for that private employment^]

§ 440.09(l)(a)-(c), Fla. Stat. Finding that Deputy Allen met the requirements of being a “full time” employee who had the “authority to bear arms and make arrests,” the JCC analyzed whether an off-duty police officer who is “suddenly thrust” into the “performance of an official duty” meets the statutory test. In reviewing the statute’s language and caselaw on the topic, the JCC concluded that section 440.091(1) applies where an “officer’s duty status” changes due to intervening events that require the performance of the “employee’s primary responsibility,” which statutorily must be “the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state[.]” Id. § 440.091(l)(a).

Based on the facts presented, the JCC concluded that “regardless of his assigned duties involving courthouse security, [Deputy Allen] was required by the Levy County Sheriffs Office standards of conduct to automatically go on-duty and safeguard the drivers on the road.” Moreover, at the time of the accident, Deputy Allen “was discharging his primary responsibility of enforcing traffic and highway laws, under circumstances reasonably consistent with that primary responsibility, by making a conscious decision to safeguard the drivers on the road and resolve the hazard as required by the Levy County Sheriffs Office standards of conduct.” For these reasons, the JCC concluded that Deputy Allen established he was “acting within the course of employment” under section 440.091(1) because he was discharging his primary responsibility at the time of the accident.

The employer/carrier argued that that section 440.092(2) applies because it is an exception to and more specific than 440.091(1), but the JCC determined that both sections contain “exceptions to the going and coming rule as it relates to law enforcement officers, and each provides criteria that must be met before an accident is deemed to have occurred in the course and scope of employment.” The JCC thereby concluded that Deputy Allen’s accident was compensable, which the employer/carrier now appeals.

II.

The employer-carrier raises three issues, two of which are inter-related and involve the scope and purpose of sections 440.091(1) and 440.092(2); the third involves a claim that Deputy Allen was not a “full time” employee, but competent substantial evidence supports that he was.

On the main issues, the employer-carrier asserts that because Deputy Allen was off-duty and on his way to work, section 440.092(2) applies to the exclusion of section 440.091(1). Stated differently, it views section 440.092(2) as precluding a finding of compensability if an officer suffers an injury while going to or coming from work, the only two exceptions being those in 440.092(2) itself, which create a presumption of compensability: if an injury occurs (a) “during the officer’s work period” (i.e., normal working hours) or (b) “while going to or coming from work in an official law enforcement vehicle,” neither of which apply in this case. Because neither of the exceptions apply, the employer-carrier’s view is that no accident can ever be compensable — even if the requirements of section 440.091(1) are otherwise met — if an officer is in the process of going to/coming from work, even if interrupted by an event that requires the officer to engage in action required of the officer as part of his official responsibilities.

But section 440.092(2) cannot be read to extinguish the intended scope of section 440.091(1), which provides that officers (who otherwise fulfill the other statutory requirements) engaging in their “primary responsibility” are considered acting within the course of employment regardless of whether they happen to be going to/coming from work. The two statutes can be harmonized, the former generally precluding compensability when an employee is going to/coming from work (with two exceptions), the latter defining the scope of compensability for the official acts of an officer.

Here, because Deputy Alen was driving his personal vehicle to work, an accident ordinarily would not be compensable. But extraordinary intervening events made the fact he was going to work irrelevant under section 440.091(1). He was a full-time deputy with the “authority to bear arms and make arrests” who happened upon a situation that his employer deemed by written policy to require Deputy Allen to intervene. At that moment, Deputy Allen was no longer “going to work” but instead was — for purposes of section 440.091(1)— engaged in his “primary responsibility” which was “the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state” as the Levy County policy required. And he was “discharging that primary responsibility within the state in a place and under circumstances reasonably consistent with that primary responsibility.” Once Deputy Allen made the determination that his employment required him to' intervene in the dangerous situation that confronted him and other motorists — a factual finding that is not contested — his status changed from a mere commuter to one falling squarely within the parameters of section 440.091(1), thereby supporting the JCC’s legal conclusion that he was acting within the course of his employment and his accident compensable.

That Deputy Allen falls within the criteria for compensability in section 440.091(1) is not inconsistent with the history and purpose of section 440.092(2), • which was adopted in 1990 and stated:

Going or coming. — An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

Ch. 90-201, § 14, Laws of Florida. This “going and coming” provision applied to employment generally and was not limited solely to law enforcement officers. In applying section 440.092(2) in the law enforcement context, however, this Court has consistently construed it as precluding compensability in the generic situation where an officer is involved in an accident in her private vehicle, but argues she was on-call or otherwise poised to be on-duty at the time (the typical argument being she had her badge, her police radio, and was on-call). See, e.g., Levine v. Brevard Cnty. Sheriff’s Dep’t., 658 So.2d 1044, 1047 (Fla. 1st DCA 1995) (officer’s accident while in personal vehicle going to work was compensable where officer saw an “illegal turn that resulted in a motor vehicle collision, thrust[ing] him immediately into an on-duty status, with the obligation to take appropriate action with respect to the accident scene and the injured drivers.”) (noting that parties and JCC agreed that three 1990 eases applied including Palm Beach County Sheriff's Office v. Ginn, 570 So.2d 1059, 1061 (Fla. 1st DCA 1990) (accident non-compensable because officer “was fully prepared to be called on duty, but was not actually on duty when the accident occurred.”)).

Indeed, one of the 1990 cases discussed in Levine is almost directly on point here. In Hanstein v. City of Ft. Lauderdale, 569 So.2d 493 (Fla. 1st DCA 1990), a uniformed police officer was on his way to work when he came upon a tractor-trailer making an illegal turn. The officer made a “conscious decision” to cite the driver but was unable to do so after the tractor-trailer hit his vehicle. This Court found that the officer was discharging his “primary responsibility while traveling to the police station, and it was not necessary to actually issue a citation or take any affirmative action in this regard for the officer to be within the course of his employment as delineated in section 440.091.” Id. at 494. As the JCC below noted, the caselaw both from 1990 (pre-section 440.092(2)) and thereafter in the context of law enforcement officers has been to determine whether the status of an off-duty officer, even if in her private vehicle going to/coming from work, can change when the officer observes an event requiring her to carry out her primary responsibility under the statute. As the JCC said, the “common feature of these cases is that the officer’s duty status is changed by events the officer has observed.”

We note that subsection (2) was amended in 2001 with language to effectuate the Legislature’s declaration that:

[L]aw enforcement officers perform state and municipal functions, that it is their duty to protect life and property at their own risk and peril, and that their activities are vital to the public safety. Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide workers’ compensation coverage to law enforcement officers during work periods and while going to and coming from work in an official law enforcement vehicle...

Ch. 2001-168, Laws of Fla. Consistent with this declaration, subsection (2) was amended to include the two presumptive exceptions referenced: the injury occurred during “the officer’s work period” or while “in an official law enforcement vehicle” at the time. The employer-carrier, as a part of its statutory interpretation argument, views these exceptions as supporting the conclusion that compensability is permissible only under the “going or coming” context when an officer is injured during her “work period” or while “in an official law enforcement vehicle,” an argument that no appellate court has addressed since section 440.092(2) was amended in 2001.

But as mentioned earlier, we view the current, post-2001 version of section 440.092(2), as not inconsistent with a finding of compensability in this case under section 440.091(1). The 2001 amendment to section 440.092(2) at issue merely established two situations in which a presumption of compensability arises as exceptions to its general “going or coming” provisions. We divine no legislative intent that the addition of these two exceptions in 2001 were intended to alter the long-standing principle under section 440.091(1) that the status of an off-duty law enforcement officer can change to on-duty when a situation arises requiring the officer’s exercise of her primary responsibility. As this Court concluded in Levine, when an off-duty officer in his personal vehicle is “thrust” into a situation requiring the immediate exercise of his primary responsibility, he is deemed to have changed to an on-duty status and, provided other statutory requirements are met, an injury suffered is compensable. 658 So.2d at 1047. That is the identical situation presented here, one in which we agree with the JCC that compensability has been established. The fact that Deputy Allen made the decision to intervene to assist the public but somehow ran into the stationary tractor-trailer before he could do so does not change the result. Id.

Because the record establishes that Deputy Allen was acting within his course of employment when the accident at issue occurred, we affirm the order of compens-ability.

AFFIRMED.

SWANSON, J. and SJOSTROM, JONATHAN, Associate Judge, concur.


text:
    Shawn C. HOLLAND, Appellant, v. Sherry Ann HOLLAND, Appellee.
    No. 1D14-288.
    District Court of Appeal of Florida, First District.
    June 30, 2014.

      Jerry L. Rumph, Jr., Tallahassee, for Appellant.
    Sherry Holland, pro se, Appellee.
   PER CURIAM.

The appellant, Shawn Holland, challenges the trial court’s temporary modification of a parental time-sharing schedule which had been established by the parties in a marital settlement agreement and later modified by a Full Mediation Agreement. He argues that the trial court erred by finding there was no final order in place and by modifying the parents’ time-sharing schedule without findings to show a substantial change in circumstances or the best interests of the children. We agree and reverse.

The parties were married in 1994, and two children were born during the marriage. In 2008, in anticipation of dissolution of marriage, the parties entered into a marital settlement agreement (MSA) which included a detailed parental responsibility and time-sharing schedule. On February 19, 2009, the trial court entered a final judgment of dissolution of marriage which ratified the MSA. Ten months later, the parties sought to modify the MSA, and following mediation, entered into a Full Mediation Agreement which modified the parenting and time-sharing schedule. On January 14, 2011, the trial court approved the Full Mediation Agreement and incorporated the agreement into a final order. On August 29, 2011, the former wife filed a petition to modify the time-sharing schedule. Following a hearing before a General Magistrate, the trial court denied the petition for modification based on lack of evidence to show a substantial change in circumstances.

The former wife filed a second petition for modification less than a year later. On December 19, 2013, the trial court held a hearing during which the court stated it intended to enter a temporary order to modify the time-sharing schedule. The court found there was no final order in place because no prior orders of the court had used “magical words of final judgment of parenting.” No evidence was presented at the hearing. Following the hearing, the trial court entered a written order finding there was “no permanent time-sharing in place” and entered a written order modifying the parties’ time-sharing schedule without any findings or evidence.

ANALYSIS

A trial court’s order modifying a parenting plan and time-sharing schedule is reviewed for an abuse of discretion. See Wade v. Hirschman, 908 So.2d 928, 935 (Fla.2005). The trial court has much less discretion to modify a parenting plan than it does in fashioning the original parenting determination. Langdon v. Langdon, 96 So.3d 1053, 1055 (Fla. 1st DCA 2012). For the reasons that follow, we hold that the trial court abused its discretion by finding there was no final order in place and by modifying the parties’ time-sharing plan without proper findings or evidence.

First, the record does not support the trial court’s determination that there was no final order in place at the time the former wife sought modification of the parties’ time-sharing schedule: The January 14, 2011, order adopting the Full Mediation Agreement is a final order, as well as the March 9, 2012, order approving the General Magistrate’s Report and denying the former wife’s petition to modify. While an order must contain “unequivocal language of finality,” an order or judgment of a court does not need to contain any particular or “magic” words to make it final. See Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002); see also Howard v. Ziegler, 40 So.2d 776, 777 (Fla.1949).

Second, the trial court erred by modifying the parties’ time-sharing agreement without evidence to show a substantial change in circumstances. See § 61.18(3), Fla. Stat. (2013); Voorhies v. Voorhies, 705 So.2d 1064, 1065 (Fla. 1st DCA 1998). It is well settled that a trial court abuses its discretion in modifying a parenting plan and time-sharing schedule when the record contains no evidence that such a modification is supported by a substantial, material, unanticipated change in circumstances. See, e.g., Zediker v. Zediker, 444 So.2d 1034, 1038 (Fla. 1st DCA 1984).

Third, the trial court abused its discretion by modifying the time-sharing agreement without findings or evidence that a modification is in the best interests of the children. See § 61.13(3), Fla. Stat. (2013); Dobbins v. Dobbins, 584 So.2d 1113, 1116 (Fla. 1st DCA 1991). Instead, the trial court focused only on the interests of the mother without any consideration of the best interests of the children in granting the petition for modification.

Because the trial court abused its discretion by temporarily modifying the parties’ time-sharing schedule, by disregarding the prior final order and by failing to make proper findings, we reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMAS, ROWE, and MAKAR, JJ., concur.


author: WOLF, J.

text:
    Richard PAULETTE and Carolyn Williams, Appellants, v. Anelson ULYSSE, Appellee.
    No. 1D13-2480.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Rhonda B. Boggess and Gina P. Grims-ley of Taylor, Day, Frimm, Boyd & Johnson, Jacksonville, for Appellants.

      Kelly B. Hampton of Fenderson & Hampton, LLC, Jacksonville, for Appellee.
   ON MOTION FOR CLARIFICATION

WOLF, J.

This cause is before us on appellant’s motion for clarification. We grant the motion for clarification, withdraw our former opinion of April 30, 2014, and substitute this clarifying opinion.

In this personal injury case, where the trial court granted directed verdict as to entitlement to past medical expenses for four months but reserved ruling as to the disputed amount of expenses, the court erred in setting aside a jury verdict as to the disputed amount.

Appellee claims that the issues of entitlement to past medical expenses and the disputed amount were taken away from the jury by the grant of the directed verdict. However, the parties never reached an agreement concerning whether the disputed amount would be determined by the judge or the jury. A motion for summary judgment was never presented to the court to establish a lack of disputed facts. The record indicates that the jury was presented evidence, instructed, and given a verdict form permitting it to decide the issues. After the verdict, the trial judge conducted a hearing and overrode the verdict based on evidence, of questionable admissibility, never presented to the jury. Appellee cannot now assert that an issue was not a jury issue when he did not object to jury instructions and a verdict form giving that very issue to the jury. See Cocca v. Smith, 821 So.2d 328, 331 (Fla. 2d DCA 2002). In addition, the procedure utilized by the trial judge to override the verdict is unauthorized and denied appellant’s right to have the disputed issue determined by the jury.

We, therefore, VACATE the Final Judgment, QUASH the post-verdict order, and REMAND and DIRECT the trial court to reconsider the issue of setoff in the context of the jury award.

LEWIS, C.J., and MAKAR, J„ concur.


text:
    Gary Craig RICHARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5562.
    District Court of Appeal of Florida, First District.
    June 30, 2014.

      Lloyd L. Vipperman, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Gary Craig Richards petitions for a writ of prohibition following the denial of his motion to dismiss. He argues that double jeopardy bars him from being retried for two counts of aggravated assault with a firearm, possession of a controlled substance (LSD), battery, and possession of drug paraphernalia, following a defense-requested mistrial. We deny the petition.

The first witness called at trial was Andrea Reprogle, the victim, who testified that she was involved in a romantic relationship with Richards at the time of the alleged incident. She testified that she and Richards started arguing as he was driving her home and he threatened to kill her. Ms. Reprogle testified that Richards had a gun in his possession when he made the threat. On cross-examination, defense counsel used Ms. Reprogle’s deposition testimony to impeach her description of the altercation. Ms. Reprogle admitted that she testified in her deposition that Richards did not have a gun in his hand when he threatened to kill her. She explained that she was still in love with Richards and was trying to protect him when she gave that testimony. In an attempt to demonstrate Ms. Reprogle’s motive for giving false testimony during the deposition, the prosecutor asked on redirect whether she was addicted to cocaine while she was involved with Richards. When she responded in the affirmative, the prosecutor asked if she had ever used cocaine with Richards.

Defense counsel objected and moved for a mistrial, arguing that the question was irrelevant and highly prejudicial. The prosecutor argued that he was attempting to show the jury that it should not believe Ms. Reprogle’s deposition testimony because it occurred while she was under Richards’ influence as he was her drug supplier, her lover, her abuser, and her protector. After finding that the question was overly prejudicial, the trial court granted defense counsel’s request for a mistrial. Defense counsel proceeded to move to dismiss the charges against Richards, arguing that the prosecutor goaded the defense into moving for mistrial. The trial court denied the motion and found that the prosecutor did not act in bad faith nor did he engage in misconduct when he asked the victim about her cocaine usage with Richards. This timely petition follows.

Generally, when a motion for mistrial is declared on the defendant’s motion, jeopardy does not attach and the defendant may be retried. Rutherford v. State, 545 So.2d 853, 855 (Fla.1989). “An exception occurs when the prosecution goads the defense into moving for mistrial and gains an advantage from the retrial.” Id. (citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)). Here, the prosecutor’s question sought to elicit testimony that would have explained the differences between the witness’s deposition testimony and her trial testimony. While the testimony was prejudicial, it was relevant and the prosecutor believed it was admissible. Thus, the record fails to demonstrate any prosecutorial intent to goad Richards into moving for a mistrial. State v. Santiago, 928 So.2d 480, 482 (Fla. 5th DCA 2006) (holding that the prosecutor did not intend to goad the defendant into moving for a mistrial where the prosecutor’s motive was to introduce what he believed to be relevant and admissible testimony).

Further, “[t]he objective of seeking to cause the other party to move for mistrial is to ‘save’ a losing case.” Rutherford, 545 So.2d at 855. The prosecutor had no need to “save” a losing case in this instance as the mistrial was granted during the testimony of the very first witness at trial. See State v. Tyson, 86 So.3d 538, 541 (Fla. 2d DCA 2012) (holding that there was no indication that the prosecutor was goading the defense into seeking a mistrial where the comments that resulted in a mistrial were made during opening statements and no evidence had been presented). In contrast, in Duncan v. State, 525 So.2d 938 (Fla. 3d DCA 1988), the Third District determined that the record showed that the prosecutor’s conduct was calculated to cause a mistrial. In Duncan, the trial court excluded the admission of a gun found in the area where Duncan was arrested. Id. at 940. Prior to closing arguments, the prosecutor asked for a short recess so his associate could retrieve something for him. Id. The prosecutor pulled a blue, plastic toy gun from his pocket and “twirled it around for the jury to see” during a critical portion of the defense’s closing. Id. The trial court granted the defense’s motion for mistrial; Duncan was convicted at a subsequent trial. Id. at 941. The Third District held that the prosecutor sent for the toy gun after studied thought and reflection and that the prosecutor gained an advantage from the mistrial because a different judge allowed the admission of the gun on retrial. Id. at 942. Based on these facts, the district court concluded that the prosecutor goaded the defendant into moving for a mistrial. Id.

There is no indication in the record before us that the State would have benefited in any way from a mistrial being declared at such an early stage in the proceedings. The trial court specifically found that the prosecutor was not acting in bad faith nor engaging in misconduct when he asked the witness if she had used cocaine with Richards. Because the record supports the trial court’s conclusion that there was no intentional misconduct on the part of the prosecutor, the mistrial does not bar a subsequent prosecution of Richards. Accordingly, we deny the petition for a writ of prohibition.

DENIED.

THOMAS, ROWE, and MAKAR, JJ., concur.


text:
    Devin Dejuan MIDDLETON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0934.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Bruce A. Miller, Public Defender, and Francis Mohamed Sahr Roberts, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 27, 2014, order denying motion for posteonviction relief in Escambia County Circuit Court case number 2010-CF-002939A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Carly BRUBAKER, Appellant, v. NORTHEAST FLORIDA STATE HOSPITAL, Appellee.
    No. 1D14-1266.
    District Court of Appeal of Florida, First District.
    July 3, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    J. Melton Bessinger, Jr., Institution Counsel, Northeast Florida State Hospital, Macclenny, for Appellee.
   PER CURIAM.

AFFIRMED. Burke v. Ne. Fla. State Hosp., 94 So.3d 725 (Fla. 1st DCA 2012); Pullen v. State, 818 So.2d 601 (Fla. 1st DCA 2002).

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    In re John Foster DILLON.
    No. 2014-B-1090.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

b The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent misused his client trust account and allowed the account to become overdrawn on one occasion. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15 and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John F. Dillon, Louisiana Bar Roll number 18586, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re David Augustus CAPASSO.
    No. 2014-B-1186.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to promptly refund an unearned fee, and mishandled his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.3, 1.5(f), and 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David A. Capasso, Louisiana Bar Roll number 24990, be suspended from the practice of law for a period of eighteen months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply -with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, C.J., would reject.

KNOLL, J., would reject.


author: PER CURIAM. JOHNSON, C.J.,

text:
    In re Bridget Brennan TYRRELL.
    No. 2014-B-1187.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I,Respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline in which respondent acknowledges that she practiced law while ineligible to do so and failed to cooperate with the ODC in its investigation. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Bridget Brennan Tyrrell, Louisiana Bar Roll number 29100, be suspended from the practice of law for a period of eighteen months.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, C.J., dissents in part and assigns reasons.

JOHNSON, C.J.,

dissents in part.

hi respectfully dissent from the period of suspension ordered. I would impose a lesser period of suspension.


text:
    STATE of Louisiana v. Timothy L. SHAW.
    No. 2013-KP-1393.
    Supreme Court of Louisiana.
    June 20, 2014.
   PER CURIAM.

|, Granted. The court of appeal erred in ordering respondent sentenced under Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the district court’s order denying respondent’s Motion to Correct an Illegal Sentence is hereby reinstated. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, No. 13-8915, — U.S. -, 134 S.Ct. 2663, 189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014).

JOHNSON, C.J., dissents and would deny the writ with reasons.

JOHNSON, C.J.,

dissents and would deny the writ.

hi respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


text:
    In re Channing J. WARNER.
    No. 2014-B-1060.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, commingled client funds, and failed to promptly deliver settlement funds to a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Channing J. Warner, Louisiana Bar Roll number 29017, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re William Fabian KENDIG, Jr.
    No. 2014-B-1059.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

h The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a consensual sexual relationship with a client. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.7, 2.1, and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that William F. Kendig, Jr., Louisiana Bar Roll number 17644, be suspended from the practice of law for a period of one year and one day, with all but six months deferred, followed by a two-year period of unsupervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: JOHNSON, C.J.,

text:
    STATE of Louisiana v. Arthur FUNCHES.
    No. 2013-KP-1479.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Funches, Arthur; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 43263.

L Denied. The decision in Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively in relator’s case. See State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, cert. denied, Tate v. Louisiana, No. 13-8915, — U.S. -, 134 S.Ct. 2663, 189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014).

JOHNSON, C.J., dissents and would grant the writ and assigns reasons.

JOHNSON, C.J.,

dissents and would grant the writ.

hi respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


text:
    STATE ex rel. Nathan JONES v. STATE of Louisiana.
    No. 2013-KH-2114.
    Supreme Court of Louisiana.
    April 11, 2014.
   In re Jones, Nathan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-3066; to the Court of Appeal, Fifth Circuit, No. 13-KH-545.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.