author: LEWIS, C.J. BENTON, J.,

text:
    STATE of Florida, Appellant, v. Michael Vincent PARKER, Appellee.
    No. 1D13-5755.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.

      Pamela Jo Bondi, Attorney General, and Wesley Paxson III, Assistant Attorney General, Tallahassee, for Appellant.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellee.
   LEWIS, C.J.

The State appeals the trial court’s order granting Michael Vincent Parker’s motion to suppress. For the reasons that follow, we conclude that the trial court erred by granting the motion to suppress and, therefore, reverse the order.

Parker was charged with burglary with battery, attempted sexual battery on a physically incapacitated or physically helpless victim, sexual battery without physical force, and battery based on acts he allegedly committed on or about July 31, 2011. Parker filed a motion to suppress his recorded interview with the police and any statements he made therein and argued in part that the detective failed to give a good-faith answer to his prefatory question of “[c]an you just tell me if I need to get a lawyer or something” and “steamrolled” him. At the hearing on Parker’s motion, the State conceded that Parker posed a prefatory question during the interview; the parties stipulated that Deputy Buckley made contact with Parker at his apartment and read him his Miranda rights; and Deputy Buckley testified that Parker indicated he understood his rights. Parker voluntarily accompanied the officers to the police station for an interview.

The transcript of the interview showed that Parker was informed that he was not under arrest and he acknowledged that he had been read his rights. Detective Jones proceeded to read Parker his Miranda rights again, and Parker indicated that he understood them and wished to talk. Parker described his version of the events and answered the detective’s questions by providing a series of exculpatory statements. The detective’s subsequent insistence on Parker’s guilt prompted the following conversation:

PARKER: Can you just tell me if I need to get a lawyer or something? I’ll tell you but I just don’t — I don’t want to like—
DETECTIVE JONES: Listen, that’s your right. But what I’m interested in is the truth,—
PARKER: I know.

Parker then made numerous incriminating statements. In response to Parker’s questions about potential sentences, the detective said that was “beyond the scope of what [he was] allowed to give advice about, okay, so [Parker was] going to end up talking to a lawyer.” Parker repeatedly expressed a desire to write a letter of apology to the victims, but was uncertain as to whether it was a good idea. Detective Jones told Parker several times that he did not have to write a letter and it was his choice. The following conversation subsequently occurred:

PARKER: I want to say I’m sorry. I don’t know what to do right now. Is there — is there a lawyer in the building or am I going to have to f* * * * * * sit in there and wait?
DETECTIVE JONES: No, you would have to call one. Listen, man, if you don’t want to do it—
PARKER: Or a call to my parents. I mean, I just want — I just need some advice, man. I just — I want to say I’m sorry really bad, I just don’t want to— DETECTIVE JONES: What are you sorry for?

Parker ultimately called his father and was visited by his grandfather. At the end of the interview, Parker was arrested.

Following the hearing, the trial court entered an order granting Parker’s motion to suppress. The trial court found in pertinent part that the interview became an interrogation when Detective Jones confronted Parker with the allegations and that “[t]he audio of the interview reflects that there was no space between the words ‘right’ and ‘but’ in Detective Jones’ response to [Parker’s] question. It would more accurately be described as ‘Listen, that’s your right but what I’m interested in is the truth.’ ” The trial court further concluded that Parker made at least two attempts to request an attorney; that “[w]henever he asked if he could make a call to get advice, Detective Jones prevented him from doing so”; that Detective Jones failed to answer in good-faith Parker’s question of whether a lawyer was available; and that throughout the interrogation, Detective Jones engaged in gamesmanship and either overrode or steamrolled Parker as he attempted to invoke his right to counsel. Accordingly, the trial court granted Parker’s motion “as to the statements that he made as a result of custodial interrogation after he initially invoked his right to counsel (‘Can you just tell me if I need to get a lawyer or something?’).” This appeal followed.

A trial court’s ruling on a motion to suppress carries a presumption of correctness. Spivey v. State, 45 So.3d 51, 54 (Fla. 1st DCA 2010). This Court defers to the trial court’s findings of fact if they are supported by competent, substantial evidence, but reviews its findings of law de novo. Id. During custodial questioning, a suspect has the right to consult with an attorney and to have an attorney present. Id. (citing Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “If a suspect clearly and unequivocally requests counsel at any time during a custodial interview, the interrogation must immediately stop until a lawyer is present or the suspect reinitiates conversation.” Id. (explaining that a “suspect must ‘articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent’ ”). If, on the other hand, a suspect who has knowingly and voluntarily waived his rights makes an equivocal or ambiguous request for counsel, police officers are not required to stop the interrogation or ask clarifying questions. Id. (holding that the appellant’s statement, “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer,” was not an unequivocal request for counsel because it “did not clearly indicate that [he] wanted counsel present at that time or that he would not answer any further questions without counsel”); see also Walker v. State, 957 So.2d 560, 571, 574 (Fla.2007) (Ending that the appellant did not make an unequivocal request for counsel where he said, “I think I might want to talk to an attorney” and later asked the agent if he needed an attorney); Jones v. State, 748 So.2d 1012, 1020 (Fla. 1999) (finding that the appellant’s statement that he wanted to speak “to his mother, his attorney, and Detective Parker” was not an unequivocal request for counsel).

In Almeida v. State, 737 So.2d 520, 523-24 (Fla.1999), the Florida Supreme Court distinguished an equivocal statement that requires no clarification from a question that is “prefatory to — and possibly determinative of — the invoking of a right.” The Court held:

if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise — i.e., to give an evasive answer, or to skip over the question, or to override or “steamroll” the suspect — is to actively promote the very coercion that Traylor [v. State, 596 So.2d 957 (Fla.1992) ] was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State.

Id. at 525-26 (“whenever constitutional rights are in issue, the ultimate bright line in the interrogation room is honesty and common sense”). A prefatory utterance must be subject to the following three-step analysis: (1) whether the defendant was in fact referring to his right to counsel; (2) whether the utterance was a clear, bona fide question calling for an answer, not a rumination or a rhetorical question; and (3) whether the officer made a good-faith effort to give a simple and straightforward answer. Id. at 523-25.' Accordingly, the Court reversed the appellant’s conviction upon concluding that the detective steamrolled him by ignoring his question of “[w]ell, what good is an attorney going to do?” and continuing the interrogation. Id.

In State v. Glatzmayer, 789 So.2d 297, 300, 304-05 (Fla.2001), the Florida Supreme Court held that where the appellee “asked the officers if ‘they thought he should get a lawyer?,’ ” the officers’ response that it was the appellee’s decision was a good-faith effort to give a simple and straightforward answer because “[t]heir response was simple, reasonable, and true.” “Unlike the situation in Almeida, the officers did not engage in ‘gamesmanship’; they did not try ‘to give an evasive answer, or to skip over the question, or to override or steamroll’ the suspect.” Id. at 305 (concluding that “[a]ll that is required of interrogating officers under Almeida and [State u] Owen[ 696 So.2d 715 (Fla. 1997) ] ‘ is that they be honest and fair when addressing a suspect’s constitutional rights”); see also Chaney v. State, 903 So.2d 951, 951-52 (Fla. 3d DCA 2005) (rejecting the appellant’s arguments that the detective failed to make a good-faith effort to give a simple and straightforward answer and was evasive and intended to steamroll him where the appellant asked the detective if he thought the appellant needed a lawyer and the detective responded, “Do you think you need a lawyer?,” because the detective’s “question in effect correctly informed [the appellant] that it was up to [him] to decide whether or not he needed a lawyer”).

In the present case, the issue turns on the third step of the Almeida analysis: whether Detective Jones gave a good-faith answer to Parker’s prefatory question of “[c]an you just tell me if I need to get a lawyer or something?,” or tried to override or steamroll him. We conclude that Detective Jones’s response of “[l]isten, that’s your right. But what I’m interested in is the truth, — ” complied with Almeida because the response was simple, straightforward, and true and in effect communicated to Parker that he had the right to counsel and whether to ask for one was his choice. We further find with regard to Parker’s prefatory question of “[i]s there — is there a lawyer in the building,” that Detective Jones’s response of “[n]o, you would have to call one” satisfied Almeida because it, too, was simple, straightforward, and honest.

Contrary to the dissent’s characterization of the majority opinion, we are not controverting the trial court’s findings of fact; rather, we disagree with the trial court’s application of the law to those facts. Aside from the above-discussed prefatory utterances, Parker made no other reference to counsel. The dissent contends that the trial judge was entitled to conclude that when Parker asked whether there was a lawyer in the building, he was requesting legal assistance. However, the trial court did not find, and Parker does not argue, that he made an unequivocal request for counsel. Instead, the parties and the trial court properly recognized that the Almeida analysis applies. We agree that Parker was in fact referring to his right to counsel when he posed that prefatory question and that his utterance called for an answer. However, we conclude that the detective made a good-faith effort to give a simple and honest answer.

For these reasons, the trial court erred by granting Parker’s motion to suppress his statements. Accordingly, we REVERSE the trial court’s order.

MARSTILLER, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

“A trial court’s ruling on a motion to suppress comes to this Court clothed with a presumption of correct[ness] and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” San Martin v. State, 111 So.2d 462, 469 (Fla.1998). Given the trial court’s findings and the record on which they are based, the trial court’s ruling should be affirmed.

After a scholarly discussion of the pertinent cases, the trial court summarized its findings of fact in the following paragraph:

Here, the record reflects that, Defendant made at least two, if not more, attempts to request access to an attorney. Though Detective Jones did tell Defendant that it was his right to speak to an attorney, he continued on with the interrogation without any pause. It is clear from Detective Jones’ responses to Defendant, on at least the two occasions when that word, lawyer, is used, that Detective Jones understood that Defendant wanted to speak to an attorney. Furthermore, Defendant repeatedly requested to use the phone after asking if he needed an attorney. Whenever he asked if he could make a call to get advice, Detective Jones prevented him from doing so. Even when he explicitly asked if a lawyer was available to speak with him, Detective Jones still did not make a good-faith effort to answer his question. Even when answering the question initially, Detective Jones stated to Defendant that he had a right to an attorney, but he (Detective Jones) just wanted the truth. Throughout the interrogation, Detective Jones engaged in “gamesmanship” with Defendant; and, either overrode or “steamrolled” Defendant as he attempted to invoke his right to counsel. See State v. Glatzmayer, 789 So.2d 297, 305 (Fla.2001). For this reason, Defendant’s statements to law enforcement after invocation of his right to counsel are suppressed.

On this basis, the trial court understandably ordered “Defendant’s statements to law enforcement after his invocation of his right to counsel ... suppressed.”

The majority opinion’s claim that the appellant never sought to invoke his right to counsel and that his interlocutor never rebuffed or “overrode” these efforts — and thus that the trial court erred as a matter of fact — cannot be squared with the detailed findings the trial court made on the circumstances surrounding the statements and the evidence underlying the findings:

On July 31, 2011, Detective Jones went to Defendant’s apartment with deputies from the Alachua County Sheriffs Office to investigate an alleged burglary and sexual batteries. The deputies indicate on an audio recording at the scene that Defendant has been given his Miranda warning. Subsequent to that statement, Detective Jones begins to question Defendant about the events of the previous night and that morning. Ultimately, Defendant agrees to go to the Sheriffs Office with Detective Jones. Prior to being taken to the Sheriffs Office, and while Detective Jones was collecting Defendant’s clothes for evidence, Defendant asks him, “Do I need to call somebody else?” Detective Jones responds, “No, we’re going to get this resolved.” Later, while, still preparing to go to the Sheriffs Office, Defendant asks Detective Jones, “Can you bring my phone?” Detective Jones agrees to bring the phone? but states “All right. Just power it off and we’ll bring it with us. We’re not talking to anybody else right now but you’re going to have it.” They then proceed to the Sheriffs Office.
Upon arrival at the Sheriffs Office, Detective Jones repeatedly advised Defendant that he was not under .arrest. Then, the following colloquy occurred:
[Detective Jones:] I’m going to read you your rights. It’s really 'simple. It just clarifies it, it makes it I’m the one who did it, I can stand up and say, “I’m the one who told him his rights.”
You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask any questions and have him with you during questioning if you wish. If you can’t afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. You have the right to stop answering at any time until you talk to a lawyer. Do you understand each of these rights that I’ve explained to you?
[Defendant:] Yes, sir.
[Detective Jones:] Okay. With these rights in mind, do you wish to talk to me?
[Defendant:] Yes, sir.
At this point, Defendant begins to tell Detective Jones what occurred the previous evening and that morning. When Defendant finished with his description of the events, Detective Jones confronted him with the allegation that he returned to the victims’ apartment and sexually battered them. Several minutes into what had now become an interrogation, the following occurs:
[Defendant:] Can you just tell me if I need to get a lawyer or something? I’ll tell you but I just don’t — I don’t want to like—
[Detective Jones:] Listen, that’s your right. But what I’m interested in is the truth,—
[Defendant:] I know.
[Detective Jones:] — okay?
The audio of the interview reflects that there was no space between the words “right” and “but” in Detective Jones’ response to Defendant’s question. It would more accurately be described as “Listen, that’s your right but what I’m interested in is the truth.” The ongoing desire of Defendant to either make a call or talk to an attorney continues:
[Defendant:] I don’t know. Just — can I — can I call my dad?
[Detective Jones:] You can, but we need to get through this first. I promise that, no matter what, when we’re done with this I’m going to let you use the phone.
[Defendant:] Don’t I get my one call?
[Detective Jones:] That’s not true.
[Detective Long:] You’re not in jail, man.
[Detective Jones:] You’re not in jail.
[Defendant:] Can I—
[Detective Jones:] But you are stuck—
[Defendant:] May I make a call first?
[Detective Jones:] You are stuck dwelling on that.
[Defendant:] What else is there, man?
[Defendant:] Dude, am I suppose— should I be saying this stuff?
[Detective Jones:] I’m just after the truth.
[Defendant:] I know. But is it going to go different for me — do I need — I just don’t know if I need to do something else.
[Detective Jones:] It’s always your choice. And like we told you, you don’t have to talk to us.
[Defendant:] I need to — am I supposed to be writing something or do I need to — I don’t want to fuck myself more than—
[Detective Jones:] If you want to—
[Defendant:] I want to say—
[Detective Jones:] I can’t let you communicate with them directly, but I will, you know, give that to them if that’s what you want to do. You don’t have to.
[Defendant:] I know, but I don’t want to fuck myself more than I already am, dude. I mean—
[Detective Jones:] That’s your choice.
[Defendant:] I want to say that I’m sorry. I don’t know what to do right now. Is there — is there a lawyer in the building or am I going to have to fucking sit in there and wait?
[Detective Jones:] No, you would have to call one. Listen, man, if you don’t want to do it—
[Defendant:] Or a call to my parents. I mean, I just want — I just need some advice, man. I just — I want to say that I’m sorry really bad, I just don’t want to—
The interrogation continues on from there until Defendant is ultimately arrested and taken to jail.

(Boldface emphasis in the original omitted.) The trial judge was entitled, inter alia, to conclude that, as a matter of fact, when the defendant asked whether there was a lawyer in the building, he was requesting legal assistance, just as somebody asking whether there is a doctor in the house can be understood to be seeking medical assistance.

“‘Aspects or components of the trial court’s decision resolving legal questions are subject to de novo review, while factual decisions by the trial court are entitled to deference commensurate with the trial judge’s superior vantage point for resolving factual disputes.’ State v. Setzler, 667 So.2d 343, 344-45 (Fla. 1st DCA 1995). See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 605 (Fla.2001); State v. Eldridge, 814 So.2d 1138, 1140 (Fla. 1st DCA 2002) (‘The standard of review of an order granting a motion to suppress evidence depends on the issue adjudicated by the trial court.’).” Green v. State, 824 So.2d 311, 314 (Fla. 1st DCA 2002). We are bound by the trial court’s findings of fact on orders granting suppression just as we are bound on orders denying suppression.

“‘An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence.’ ” Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011) (quoting Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011)). See M.J. v. State, 776 So.2d 341, 342 (Fla. 1st DCA 2001) (“[T]he reviewing court is bound by the trial court’s findings of fact on this matter, made after the suppression hearing, unless the findings are clearly erroneous.”); Warren v. State, 701 So.2d 404, 405 (Fla. 1st DCA 1997) (same); Kennedy v. State, 641 So.2d 135, 136 (Fla. 5th DCA 1994) (same). While giving this principle lip service, the majority opinion honors it only in the breach. I respectfully dissent from today’s unwarranted reversal. The suppression order should be affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The LAW OFFICES OF LYNN W. MARTIN, P.A., Appellant, v. Torben S. MADSON, III, Appellee.
    No. 1D13-3071.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Lynn W. Martin of the Law Offices of Lynn W. Martin, Orange Park, pro se, Appellant.
    Griffith J. Winthrop, III, and Jeffrey S. Hammer of Alvarez, Sambol & Winthrop, Orlando; Ileana Haedo, Gainesville, for Appellee.
   PER CURIAM.

We affirm the trial court’s order dismissing with prejudice the appellant’s amended complaint without comment, but write to explain our award of fees to the appellee, Torben Severin Madson, III.

Section 57.105, Florida Statutes (2013), provides, in part:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

(Emphasis added.)

It is well settled that appellate courts can award appellate attorney’s fees under this provision. See Waddington v. Baptist Med. Ctr. of Beaches, Inc., 78 So.3d 114, 117 (Fla. 1st DCA 2012). A finding under section 57.105(1) is “tantamount to a conclusion that the claim was frivolous when filed, or later became frivolous.” Id. (quoting E. Indus., Inc. v. Fla. Unemployment Appeals Comm’n, 960 So.2d 900, 901 (Fla. 1st DCA 2007)). An award of appellate fees under section 57.105 is appropriate here as the appellant knew or should have known the instant appeal was frivolous. The alleged guarantee claim against the appellee was within the Statute of Frauds and was neither reduced to writing nor signed by him. The law applicable to the case is clear and well-settled such that the appellant should have known that the relief sought was not supported by an application of the law. Given the mandatory nature of section 57.105 and our finding that the basis for the appeal and the arguments made were groundless, we grant the appellee’s motion for appellate attorney’s fees pursuant to section 57.105. See de Vaux v. Westwood Baptist Church, 953 So.2d 677, 682-85 (Fla. 1st DCA 2007) (affirming the dismissal of a complaint seeking specific performance on alleged oral agreement that was within the Statute of Frauds and discussing the award of sanctions pursuant to section 57.105 because the appeal was frivolous).

AFFIRMED and REMANDED to the trial court for assessment of section 57.105 attorney’s fees.

WOLF and ROWE, JJ., and PARKER, GREGORY S., Associate Judge, concur.


author: RAY, J.

text:
    CLAY COUNTY EDUCATION ASSOCIATION, Appellant, v. CLAY COUNTY SCHOOL BOARD, Appellee.
    No. 1D13-4858.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Jennifer S. Blohm and Lynn C. Hearn of Meyer, Brooks, Demma, and Blohm, P.A., Tallahassee, for Appellant.
    J. Bruce Bickner, Green Cove Springs, for Appellee.
   RAY, J.

Clay County Education Association (“CCEA”) appeals from an order dismissing its complaint for writ of mandamus seeking to compel the production of certain public records from the School Board of Clay County (“School Board”). CCEA argues that the circuit court erred in dismissing the complaint and failing to hold an evidentiary hearing to resolve disputed issues of fact. We agree. For the reasons that follow, we reverse and remand.

Before filing its complaint, CCEA requested certain records related to the School Board’s operation, control, and supervision of the public schools within Clay County. While certain information was provided, the School Board failed to produce the remaining requested materials, all of which CCEA alleged are public records in the School Board’s custody. CCEA requested an immediate hearing on its complaint, as provided for in section 119.11(1), Florida Statutes (2013). The trial court then issued an alternative writ of mandamus directing the School Board to provide written defenses to CCEA’s complaint. In its unsworn response, the School Board contended that it either had already provided the documents, did not have the information in the format requested, or could not produce the documents because they did not exist. Based solely on the pleadings before it, the trial court determined that CCEA failed to establish a clear legal right to the requested relief and dismissed CCEA’s complaint.

This Court reviews de novo the trial court’s dismissal of a complaint for writ of mandamus. See Walker v. Ellis, 989 So.2d 1250 (Fla. 1st DCA 2008). A motion to dismiss tests the legal sufficiency of a complaint and does not resolve factual issues. Felder v. State, Dep’t ofMgmt. Servs., Div. of Retirement, 993 So.2d 1031, 1034 (Fla. 1st DCA 2008). When ruling on a motion to dismiss, the court must consider only the allegations within “the four corners of the plaintiffs complaint” and “must accept the plaintiffs allegations as true and resolve all inferences in the plaintiffs favor.” Miller v. Nelms, 966 So.2d 437, 439-40 (Fla. 2d DCA 2007).

To be entitled to a writ of mandamus, a party must allege a violation of a clear legal right and the breach of an indisputable legal duty. Polley v. Gardner, 98 So.3d 648, 649 (Fla. 1st DCA 2012). CCEA’s complaint alleged each of these elements, citing article I, section 24(a), of the Florida Constitution and chapter 119, Florida Statutes (2013). Moreover, when all reasonable inferences are drawn in CCEA’s favor, its requests satisfy the broadly defined category of “public records.” See § 119.011(12), Fla. Stat. (2013). Therefore, CCEA’s complaint shows a pri-ma facie case for relief, and the trial court’s dismissal was improper.

Because the complaint was not properly subject to dismissal, the court erred in failing to hold an evidentiary hearing to resolve disputed issues of fact. See Jo-hanson v. State, 872 So.2d 387 (Fla. 4th DCA 2004) (reversing the denial of a petition for writ of mandamus based on an unsworn response filed by the State that it did not possess the records requested and remanding to the trial court for an evidentiary hearing, including an in camera inspection of the state attorney’s file, to determine who possessed the required records); Radford v. Brock, 914 So.2d 1066, 1068 (Fla. 2d DCA 2005) (reversing the dismissal of a mandamus action because the petition and answer raised a factual dispute as to who possessed the requested recording and stating “[i]f the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties”). Further, CCEA correctly observes that a hearing should have taken place immediately under section 119.11(1), which provides, “Whenever an action is filed to enforce the provisions of this chapter, the eourt shall set an immediate hearing, giving the case priority over other pending cases.”

Accordingly, we reverse the trial court’s dismissal and remand for an immediate hearing under section 119.11(1) and, if necessary, further proceedings to resolve any factual disputes that remain between the parties’ complaint and answer.

WOLF and PADOVANO, JJ., concur.


text:
    Bruce Niven BROCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3325.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Gary S. Shumard, Jacksonville, and Matthew A. Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 25, 2018, judgment and sentence rendered in Duval County Circuit Court case number 16-2009-CF-006442-AXXX-MA. 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). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    STATE of Louisiana v. Donald K. SWANZY. State of Louisiana v. Donald K. Swanzy.
    No. 2012-K-1281.
    Supreme Court of Louisiana.
    April 1, 2013.
   PER CURIAM.

hThe state and defendant have filed cross applications seeking review of the Fifth Circuit’s decision affirming defendant’s conviction and sentence on one count of felony theft over $500 in violation of La.R.S. 14:67, but reversing his conviction and sentence on a second count of felony theft over $500. We deny defendant’s application in 12-K-1281, but grant the state’s application in 12-K-1297. For reasons that follow, we reinstate the conviction and sentence vacated by the court of appeal.

The state charged defendant by bill of information with theft of $6,500 from Lloyd Michell, and in a second count with theft of $25,000 from Charles McGowan, by means of fraudulent conduct, practices, or representations. The charges stemmed from the post-Katrina, 2007 demolition of the TwiRopa Mill, originally a twine rope manufacturing facility later remodeled as a nightclub, on | gTchoupitoulas Street in New Orleans. The demolition project brought Terry Kutcher, owner of Chisholm Trail Construction in Cashion, Oklahoma, to Louisiana in the spring of 2007, with associated heavy construction equipment, including a John Deere backhoe excavator and a John Deere 850 bulldozer. According to the state, defendant, owner of Diesel Truck Service on Destrahan Boulevard in Gretna and the original general contractor on the TwiRopa project, misappropriated both pieces of heavy machinery, sold them to Michell and McGowan, and then refused repayment after the equipment was seized by the police as stolen property.

After trial by jury in August 2009, defendant was found guilty as charged on both counts. The trial court sentenced him to concurrent terms of six years’ imprisonment at hard labor on each count, suspended, with two years’ active probation and three years’ inactive probation. By the time of sentencing, and at the direction of the trial court, defendant had made full restitution to both victims. On appeal, addressing defendant’s single assignment of error challenging sufficiency of the evidence, the Fifth Circuit affirmed defendant’s conviction and sentence on count two charging the theft of $25,000 from Charles McGowan but reversed defendant’s conviction and sentence for the theft of $6,500 from Lloyd Michell. State v. Swanzy, 11-0882 (LaApp. 5 Cir. 5/8/12), 96 So.3d 498. The instant cross applications to this Court followed.

Testimony at trial indicated that the relationship between Terry Kutcher and defendant began well enough in the early spring of 2007, when Kutcher signed on as a subcontractor to demolish the TwiRopa facility and collect the remaining lumber and bricks in good condition for salvage. At the time, defendant was the general contractor on the project, and among the heavy equipment brought to Louisiana, Kutcher delivered to defendant’s shop, Diesel Truck Service, in April |s2007, a balky John Deere 850 bulldozer for an estimate to repair a damaged engine. Kutcher testified at trial and emphatically stated that he had asked defendant only for an estimate, not for actual repair of the bulldozer, although he also conceded it was possible, given that he was traveling back and forth to Louisiana from Oklahoma, someone else in his employ, although not authorized to order the repairs, might have done so anyway. Nevertheless, defendant sent a letter to Kutcher in Oklahoma at the end of June 2007 demanding payment of all outstanding invoices. Among the invoices were bills from Hydraulic Equipment Service, Inc. for building a dirt and concrete ramp to off-load the bulldozer at Diesel Truck Service and to repair two batteries. Kutcher testified that he had not personally authorized any repairs to the bulldozer and that the trailer on which it was delivered to defendant had its own ramp to off-load the equipment.

On the morning of July 23, 2007, or less than a month after defendant sent his demand letter to Terry Kutcher, Timothy Gooch, one of Kutcher’s employees from Oklahoma who was living in a trailer across from the TwiRopa site, awoke to the sound of defendant knocking on his door. Defendant informed Gooch he was removing the equipment from the site but would give Gooch until the night to pack up and leave because he “needed to lock the place up.” Gooch testified that when he told defendant “you can’t take this equipment, it’s not yours,” defendant “basically said I’m going to do what I’m going to do. I can do whatever I want to do.” Gooch recalled that defendant “had several trucks there picking stuff up, and I wasn’t going to get in the way of nobody.” Among the equipment removed by defendant from the job site was a 690 John Deere excavator belonging to Kutcher, a smaller John Deere Skid Steer, and at least one Dodge pickup, also belonging to Kutcher. The. Skid Steer and Dodge truck had been picked up by Dale’s Towing, a wrecker service located in Gretna and owned by Lloyd Miehell, and taken to ^defendant at Diesel Truck Service. Gooch called the police, who responded but informed him the missing equipment was a civil matter and then left.

In the fall of 2007, the excavator, sitting in the lot at Diesel Truck Service, caught the eye of Charles McGowan, who was working across the street on a job at the Harvey Canal. When McGowan inquired about buying the excavator, defendant informed him that it was not for sale at that moment but he was working on a letter and would be able to sell it in within a month. Defendant had already placed a notice in The Times-Picayune on September 14, 2007 that he would obtain a permit to sell several pieces of equipment, including the 690 John Deere excavator, the 850 John Deere bulldozer, and the John Deere Skid Steer, if payment of repairs and storage fees were not made by October 25, 2007. Defendant had then sent a facsimile transmission to Kutcher on October 19, 2007 indicating that Kutcher owed repair and storage fees in an amount of $3,700 for the bulldozer and $5,500 for the excavator. A demand letter accompanied the bill indicating that defendant had the necessary permits to sell the equipment if he did not receive payment. Kutcher testified that he never received the transmission because it was sent to the wrong number but he had received by October 2007 at least five other invoices for storage and repairs of both the excavator and bulldozer in addition to the original invoices for the offloading of the bulldozer and the servicing of the batteries at Diesel Truck Service in April 2007. In particular, one invoice, dated September 12, 2007, charged nearly $2,500 for towing and storage fees for the bulldozer. For the most part, the additional invoices came from Hydraulic Equipment Service, Inc. Kutcher testified that the invoices surprised him as he had not authorized repairs to either piece of equipment, or agreed to any storage fees, let alone towing fees for the bulldozer he had delivered to Diesel Truck Service in April 2007.

| sKutcher informed jurors that he began working on recovery of his equipment immediately after he received the report of the taking from the TwiRopa job site and that after his efforts to secure a police report of the incident proved futile, he recruited private individuals to help him, including Jerry Blake, whom he sent as an emissary to defendant with a check to pay the invoices for the excavator and bulldozer and recover that much of his equipment. Kutcher testified defendant rejected the offer because “[h]e didn’t want to release the excavator and dozer without releasing all of the equipment that he had on his lot.” That equipment included the John Deere Skid Steer removed from the Twi-Ropa site on July 23, 2007. Kutcher acknowledged that his relationship with defendant deteriorated over the spring of 2007 as both sides began submitting invoices to each other that neither side paid, and that the TwiRopa site was then shut down, only 75% completed, “for nonpayment.” Kutcher further acknowledged that the contract disputes arising from the TwiRopa project remained unresolved at the time of trial. But he flatly denied that the contract authorized defendant to seize any of his equipment if there were disputes over amounts owed.

Three weeks after their initial discussions about the excavator, defendant informed McGowan that he had the right to sell it and asked for $30,000. The two men agreed on a price of $25,000 in cash and the sale took place in defendant’s office on November 6, 2007. McGowan used $8,000 of his own money and $17,000 borrowed from his lifelong friend, Lloyd Miehell. A month later, McGowan purchased a 1981 LoBoy trailer from defendant to use in transporting the excavator. Timothy Gooch did not identify the trailer as one of the three pieces of heavy equipment removed from the TwiRopa site but it, too, belonged to Terry Kutcher, and for this transaction, defendant had gone through Total Recovery | ^Professionals of Louisiana [TRPL] to obtain a permit to sell the trailer from the Office of Motor Vehicles.

Michell knew defendant personally and in discussions about the excavator, defendant informed him that he had obtained a mechanics lien on the machine and that he was selling it because “somebody had abandoned it on him.” When Michell expressed interest in the John Deere 850 bulldozer sitting on the lot at Diesel Truck Service, defendant claimed that it, too, had been abandoned and that he was selling the bulldozer for non-payment of repairs and storage fees. Defendant initially asked for $80,000, but readily accepted Michell’s counter offer of $6,500, a steep discount that reflected the poor condition of the bulldozer’s engine.' The sale took place on December 20, 2007, but Michell refused to sign the bill of sale because a notary was not present. On the following day, another trucking service delivered the bulldozer to property owned by Michell across the parish line in Plaquemines Parish. Michell testified that taking the machine off the |7trailer took nearly two hours, as the engine would “stop and kill and stop and kill,” and they had to restart it by “jumping the batteries off of the battery charger.” He then determined that the engine had a cracked head gasket. At the time, Michell was unaware of any connection between the excavator in which he was a part investor and the bulldozer.

Shortly after the sale of the bulldozer, McGowan called Michell and informed him that his newly-purchased excavator had disappeared. McGowan reported the apparent theft to the police, but in looking around for the excavator on his own he learned that “the guy who owned the machine had stole it back from me.” In fact, Kutcher had used some self-help and recovered the excavator on his own -with the aid of J.C. Trulan. The excavator eventually made its way to Dale’s Towing, where it was recovered by State Trooper Andrew Pratt on July 24, 2008, after a meeting with Terry Kutcher, who had satisfied the trooper that he was the owner of the equipment. Ultimately, Kutcher allowed McGowan to use the excavator on a job for a couple of weeks and then reclaimed it and returned the excavator to Oklahoma.

In December 2008, Terry Kutcher contacted Trooper Pratt about his John Deere 850 bulldozer and satisfied the officer he also owned that piece of heavy equipment. By then, J.C. Trulan, "with the aid of a deputy sheriff, had recovered the bulldozer from Michell’s yard in Plaquemine’s Parish and removed it to a location a couple miles away. On December 19, 2008, Pratt executed a search warrant for the location and recovered the bulldozer. Defendant’s arrest followed. With the agreement of Terry Kutcher, the bulldozer was returned to Michell for storage.

After learning that the police were in the process of recovering stolen property from him, an irate Michell insisted on obtaining a notarized bill of sale 1sfrom defendant for the bulldozer. They executed that document in the office of a local attorney, backdating it to December 20, 2007. Michell also insisted that defendant produce paperwork to prove that he actually obtained possession of the bulldozer through a mechanics lien. The men met in defendant’s office and defendant handed Michell a thick file relating to the bulldozer for him to copy. Among the papers was an application to TRPL relating to storage of the bulldozer, although Michell knew from his own extensive experience in the trade that permits to sell do not issue for off-road, unregistered heavy equipment. The file also included a copy of the newspaper notice demanding payment for repairs to the excavator, bulldozer, and Skid Steer by October 25, 2007, and invoices relating to the excavator purchased by Charles McGowan with the help of Michell. After inspecting the documents, Michell realized for the first time the connection between the excavator and bulldozer because “both of them ... came from the same fellow in Oklahoma.”

Defendant insisted the sale was legal, but Michell hired a private investigator to look into matters and the investigator eventually put him in contact with Terry Kutcher, who cooperated in the return of the bulldozer to Michell for storage. Mic-hell testified that he asked for his money back on both the excavator, for which he had paid the majority of the price, and for the bulldozer, but defendant refused, insisting that he “had done it right.” In fact, defendant had sent a letter to Lieutenant Terry Poche in the auto theft division of the Jefferson Parish Sheriffs Office, “mainly to have the necessary paper trial” for his records, stating that he had followed all of the legal requirements for taking possession of the equipment in his yard on Destrahan Avenue, including an advertisement placed in The Times-Picayune providing notice of the bills associated with the machines in his possession to all responsible parties, and asking Poche to contact him “to |9discuss the best way ... to handle this situation,” as he needed “to be certain before selling or disposing of this machinery that we have followed all rules and ... completed all necessary steps to obtain this equipment both legally and professionally.” The letter is dated November 7, 2007, or one day after defendant sold the excavator to Charles McGowan.

Defendant did not testify at trial but his defense emerged in the testimony of Valerie Oxner, an attorney who had represented him for 15 years and who had set up several of his corporations for which he served as the director. Oxner assured jurors that both sales had been lawful and that because she and defendant were fully aware TRPL would not process the necessary paperwork for issuing permits to sell off-road, non-titled machines, she advised defendant to follow the procedures for executing mechanics liens provided by La.R.S. 9:4502. “As far as I know,” Oxner told jurors, “he followed all the proper procedures and he did it exactly as the law provided for, and it was legal.” Oxner also testified about extensive correspondence with Terry Kutcher and Chisholm Trail Construction and emphasized that no claim had ever been made by Kutcher in the course of the paper trail that any equipment had been stolen from him. In fact, investigation of the sales as a criminal matter began in July 2008, a full year after the excavator had been removed from the TwiRopa site and over a year after Terry Kutcher had delivered the bulldozer to Diesel Truck Service. On the other hand, Kutcher never |10paid on invoices totaling $48,190 for repairs and storage fees accumulated from April to November 2007, a ruinous situation for defendant, who had “spent money buying parts and supplies to repair these vehicles and this equipment ... it was disastrous for him.” Oxner also underscored that no one involved in the investigation of the dispute between Terry Kutcher and defendant as a criminal matter had come to her for a statement and that the documentary evidence in her possession had thus never come to light before defendant was charged with misappropriation of Kutcher’s equipment and theft of the cash provided by Michell and McGowan. Oxner indicated that she was “in the process of filing a civil suit against the parties to this matter to recoup the money” they owed defendant. On cross-examination, Oxner acknowledged that of various corporations she had set up for defendant, some of them had had their licenses revoked by the state for failure to submit annual reports. Among them was Hydraulic Equipment Service, Inc., which, as documented by the state at trial, had its license revoked in 2005.

Reviewing all of this evidence on appeal, the Fifth Circuit panel concluded that with respect to the excavator, rational jurors could have found defendant had the requisite specific intent to commit theft by misappropriating the equipment and then selling it for cash to Charles McGowan. The lynchpin of that finding was the unrebut-ted testimony of Timothy Gooch who “specifically told defendant he could not take the equipment” from the TwiRopa site, “but defendant did so anyway.” Swcmzy, 11-0882, p. 8, 96 So.3d at 502. The defense had no answer to that testimony and the court noted “[t]he fact that defendant attempted to obtain a repairman’s lien on the excavator after seizing it does not negate the fact he took the excavator without permission with the intent to permanently deprive the owner of the excavator ... [and] then misrepresented to Mr. McGowan that he had the authority to sell the excavator, which he took without permission.” Swanzy, lLj0882n at 8, 96 So.3d at 502. Defendant had further refused to refund the $25,000 paid in cash for the excavator even after his “authority to sell ... was questioned and the excavator was seized as stolen property.” Id.

On the other hand, the court of appeal noted that unlike the excavator, Terry Kutcher had voluntarily delivered the bulldozer to defendant in April 2007, at least for an estimate for repairs, and thereafter never attempted to reclaim the machine before receiving an invoice in September 2007 for storage fees and before defendant then sold it to Lloyd Michell in December 2007, after he had run newspaper notices of his intent and consulted with the Jefferson Parish Sheriffs Office. The court of appeal further noted that “[t]he documentary and testimonial evidence shows defendant consulted an attorney, communicated verbally and in writing with Mr. Kutcher and other representatives of Chisholm Trail about the outstanding invoices and his intent to sell the bulldozer under a lien, and advertis[ed] his intent to sell the bulldozer under a lien in the newspaper.” Swanzy, 11-0882 at 11, 96 So.3d at 504. Although “cognizant that we may not substitute our judgment for that of the jury,” the court of appeal also observed that “the jury’s conclusion cannot stand if the evidence is such that reasonable jurors must have a reasonable doubt.” Id., 11-0882 at 11-12, 96 So.3d at 504 (citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). The court ultimately concluded that “reasonable jurors must have a reasonable doubt as to defendant’s specific intent to commit theft” involving the bulldozer, as opposed to theft involving the excavator, because “the evidence shows nothing more than a personal dispute between the parties.” Id.

We agree with the court of appeal that the evidence presented at trial supported the jury’s guilty verdict with respect to theft of the $25,000 paid by Charles McGowan for the excavator and, thus, defendant’s application does not 112warrant the exercise of our supervisory authority. The application in 12-K-1281 is therefore denied. We find merit, however, in the state’s application in 12-K-1297 that the court of appeal erred in setting aside defendant’s conviction for the theft of $6,500 from Lloyd Michell because, even as it disclaimed any intent to do so, the court of appeal ultimately substituted its own appreciation of the evidence for that of the fact finder in concluding a rational trier of fact would necessarily have a reasonable doubt with respect to the specific intent necessary to convict defendant of theft. State v. Captville, 448 So.2d 676, 680 (La.1984) (‘When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant ] ... that hypothesis falls, and the defendant is guilty unless there is another hypothesis.... sufficiently reasonable that a rational juror could not ‘have found proof beyond a reasonable doubt.’ ”) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A jury acting as the fact finder may reasonably reject the hypothesis of innocence offered by the defendant unless that hypothesis “is sufficiently reasonable and sufficiently strong [that] a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.” Captville, 448 So.2d at 678, n. 2 (internal quotation marks and citation omitted).

The circumstances involving the sale of Terry Kutcher’s excavator and bulldozer, brought to Louisiana in support of the TwiRopa demolition project, were so inextricably intertwined that even in separate trials, the evidence would have been virtually the same to provide a narrative completeness “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 658, 136 L.Ed.2d 574 (1997). In assessing whether defendant had the requisite fraudulent intent with |1sregard to the sale of Terry Kutcher’s bulldozer, following the previous sale of Kutcher’s excavator to Charles McGowan, rational jurors could take into account the testimony of Kutcher that he began working on the recovery of his equipment immediately after its removal from the TwiRopa job site and attempted to recover both his excavator and the bulldozer from defendant by sending his emissary to Diesel Truck Services with a check to -pay the disputed invoices on those two pieces of equipment. Kutcher testified without objection that defendant had rebuffed that effort with a demand that he pay all invoices or free up none of his equipment. Kutcher was not specific as to dates, but rational jurors could find that the effort to reclaim the equipment took place before defendant sold either the excavator or the bulldozer, and find that evidence completely at odds with defendant’s representations to Charles McGowan and Lloyd Michell that the equipment had been “abandoned” by its owner. Thus, although the bulldozer and excavator had traveled different routes to the same place at Diesel Truck Services, rational jurors could find that defendant had no more right to assert a claim of privilege in the bulldozer after Kutcher unsuccessfully tendered payment for it, and then represent that claim as a basis for selling the equipment to satisfy storage and repair costs, than he did in the excavator, which the evidence established had been removed without authority from the TwiRopa job site.

In addition, rational jurors could also take into account the supposed repairs of the bulldozer were performed on behalf of a corporation, Hydraulic Equipment Service, Inc., that had lost its license in 2005, that the repairs in no way addressed the problem of the cracked head gasket plaguing the bulldozer, and that at least some of the repairs may not have been performed at all, as Michell had to boost the batteries from a battery charger to off-load the sputtering bulldozer from its trailer. Rational jurors could thus take defendant at his word when he wrote to the [ M Jefferson Parish Sheriffs Office in November 2007, after he had already sold the excavator, that he was doing so “mainly” to create a paper trial, which was no more a reliable indicator of his subjective intent than the invoices were a reliable indicator of repair and storage fees for both the excavator and the bulldozer, or, for that matter, the towing fees for the bulldozer assessed by Hydraulic Equipment Service, Inc., for a piece of equipment that had been delivered to Diesel Truck Service.

Rational jurors could thus find that the evidence in its entirety supported a finding that defendant converted not only Terry Kutcher’s excavator but also his bulldozer to his own use in a fraudulent scheme to sell the heavy equipment to unsuspecting buyers on assurances the equipment had been “abandoned.” Rational jurors could thus conclude that whatever the civil ramifications of the case arising out of the unsettled contractual issues, the count involving the bulldozer, as well as the count involving the excavator, did not stem from only a personal dispute between the parties but properly charged defendant with felony theft in that, with the specific intent to deprive Lloyd Michell of his money permanently, he took something of value from Michell “by means of fraudulent conduct, practices, or representations.” La.R.S. 14:67(A).

Accordingly, the state’s application is granted, the court of appeal decision is reversed in part, and defendant’s conviction and sentence on count one for the theft of $6,500 from Lloyd Michell are hereby reinstated.

      . Testimony at trial established that Towing and Recovery Professionals of Louisiana is a nonprofit trade association that serves as an agent of the Office of Motor Vehicles to process paperwork for storage facilities in the state, including towing companies, body shops, repair shops "that basically store[] vehicles or titled movables to go through procedures to report to legally charged storage and notify the owners of the property and, if the owners do not come and claim it, the owner and/or lien holder, then [TRPL] help[s] them go through the procedures to obtain a permit to sell.” The permit to sell is issued by the Officer of Motor Vehicles and allows the storage facility to sell the vehicle as if it had title to it. The testimony also made clear that the procedure for obtaining a permit to sell encompasses only registered vehicles capable of traveling on the highway and thus does not govern disposition of unregistered farm or heavy construction equipment. Diesel Truck Services is one of TRPL's customers and was involved in the permit to sell issued by the Office of Motor Vehicles for the sale of the 1981 LoBoy trailer that qualified although it is not a motorized vehicle. As explained by Jennifer Wall, a TRPL representative, the disposition of unclaimed heavy construction equipment by a storage facility is something of a grey area in Louisiana. She supposed that the facility would hold the equipment for at least 90 days and then run notices for it in the newspaper and "after that they would just contact counsel for legal advice on how they would pursue for disposal of something.” She made clear that TRPL would not be in-, volved in that process and would not give that legal advice with respect to liens or writs of seizure, based on the assumption that at some point the courts would have to become involved. She also made clear, with respect to the 1981 LoBoy, that the permit to sell did not validate the lawful ownership of the equipment but meant only that Diesel Truck Service had complied with the procedures necessary to dispose of the equipment on a claim that its fees for storage and repair had not been satisfied.

      . As provided in La.R.S. 9:4502(A)(1), ‘'[a]ny person engaged in the making or repairing of ... machinery ... or movable objects or movable property of any type or description, has a privilege on the thing for the debt due him for materials furnished or labor performed ... [and] such privilege continues as long as such thing remains in such place of business.” The statute further provides that when the machinery or movable remains in the place of business, the holder of the privilege may sell "such property at private sale and without appraisement, after advertising such property for ten days as provided by law in case of judicial sales of movables.” La.R.S. 9:4502(C). During deliberations, jurors requested a copy of the statute along with all of the documentary exhibits introduced at trial and inspected by them at the close of the state’s case in chief. At the urging of both state and defense, the trial court declined the request and committed jurors to memory in deciding the case.