text:
    Douglas SPARGO, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5584.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.

      Douglas Spargo, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Douglas Spargo seeks review of the order denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In his motion, appellant asserted that his trial counsel was ineffective by failing to adopt appellant’s motion to withdraw his guilty plea prior to sentencing on the ground that the plea had never been formally accepted by the trial court. For the reasons that follow, we reverse and remand for further proceedings.

In the trial court, appellant pled guilty to second degree murder and was sentenced to life imprisonment. We affirmed the judgment and sentence on direct appeal. Spargo v. State, 988 So.2d 626 (Fla. 1st DCA 2008).

Thereafter, appellant filed a rule 3.850 motion for post-conviction relief arguing, inter alia, that trial counsel was ineffective for failing to adopt appellant’s motion to withdraw the guilty plea prior to sentencing because the plea had never been formally accepted by the trial court. In connection with the post-conviction proceedings, appellant’s trial counsel was deposed and testified that he advised Appellant to enter the guilty plea to second degree murder, with the hopes of getting a term of years sentence; that he saw no good-faith basis to move for withdrawal of the plea; that he did not recall if the trial court stated it had formally accepted the plea; and that, if the law at the time allowed withdrawal of the plea, he would have, and should have, moved for withdrawal if appellant desired to do so.

The circuit court held an evidentiary hearing on appellant’s rule 3.850 motion, at which trial counsel’s deposition testimony was received in evidence. Following the evidentiary hearing, the court entered a written order denying appellant’s motion for post-conviction relief. The trial court found that trial counsel’s deposition testimony was more credible than the sworn allegations in appellant’s rule 3.850 motion; that the trial court never formally accepted the plea; that appellant had orally moved to withdraw his plea at a hearing that was held prior to sentencing; and that trial counsel had refused to adopt that motion because he felt there was no good-faith basis for it. The court stated that in light of trial counsel’s testimony, it would conduct its analysis as if trial counsel had been deficient by neglecting to file a motion to withdraw the plea based on the lack of formal acceptance.

The court examined the defenses available to appellant, the plea colloquy, and the sentence imposed, and concluded that appellant had failed to establish that he had suffered the required prejudice from trial counsel’s presumed deficient performance because there was no reasonable probability that appellant would not have pled guilty and insisted on going to trial. Further, the court reviewed case law interpreting a defendant’s right to withdraw his plea under Florida Rule of Criminal Procedure 3.172(g), and found that the rule only applies before sentencing; the court opined that because sentence has already been pronounced in appellant’s case, he is not now entitled to withdraw his plea because the trial court neglected to formally accept it. This appeal ensued.

“To prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate (1) trial counsel’s performance was deficient, and (2) there is a reasonable probability that the outcome of the proceeding would have been different without the deficient performance.” Hunter v. State, 87 So.3d 1273, 1275 (Fla. 1st DCA 2012); see also Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Each prong of the analysis consists of mixed questions of fact and law; appellate courts defer to the lower tribunal’s findings of fact that are supported by competent substantial evidence, and review the conclusions of law de novo. Hunter, 87 So.3d at 1275. When ineffective assistance is asserted in the context of plea bargaining or an entered plea, the prejudice analysis focuses on whether the defendant has shown:

[Tjhere is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial ... The critical inquiry, therefore, is not whether the defendant would have ultimately fared better had he not entered his plea ... the proper inquiry is instead whether he would have entered the plea had he been competently advised by his counsel.

Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002) (emphasis in original) (citations omitted).

Pursuant to Florida Rule of Criminal Procedure 3.172(g), “[n]o plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.” A plea is “formally accepted” for purposes of rule 3.172(g) “when the trial court ‘affirmatively states to the parties, in open court and for the record, that the court accepts the plea.’ ” Muse v. State, 23 So.3d 763, 764 (Fla. 1st DCA 2009) (quoting Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984)).

The Florida Supreme Court recently instructed that prior to a formal acceptance of the plea or pronouncement of sentence, “[ujnder rule 3.172 [ (g) ], the court has no discretion. If the court has not formally accepted the plea, it must allow withdrawal.” Campbell v. State, 125 So.3d 733, 739 (Fla.2013) (quoting Harrell v. State, 894 So.2d 935, 938-39 (Fla.2005)) (emphasis in original). The Supreme Court determined, however, that “actual sentencing of the defendant is a sufficient affirmative statement to the parties made in open court and on the record as to constitute formal acceptance of a plea under Florida Rule of Criminal Procedure 3.172(g),” and that, after such time, a defendant may not invoke rule 3.172(g) as a means to withdraw his plea, even if it had not been formally accepted by the trial court. Id. at 742. In Campbell, the Supreme Court disapproved of our decision in Cox v. State, 35 So.3d 47, 48-49 (Fla. 1st DCA 2010), where we reluctantly allowed a defendant to withdraw his plea more than two years after sentencing, pursuant to rule 3.172(g), because the trial court had never formally accepted the plea.

The facts in the instant appeal are distinguishable from the situations presented in Campbell and Cox, where in each case the defendant attempted to withdraw his plea pursuant to rule 3.172(g) after he had already been sentenced. Id. at 733. Here, prior to either formal acceptance of the plea or sentencing, appellant presented his trial attorney with letters and pro se motions to withdraw his plea, which the attorney refused to adopt. At a subsequent pre-sentencing hearing, appellant made an oral motion to withdraw his plea, which the trial court denied on the merits.

As the post-conviction court recognized, the trial court never formally accepted appellant’s plea. Because there was no formal acceptance, and sentence had not yet been pronounced, appellant had a right to withdraw his plea without any justification for doing so. See Fla. R. Crim. P. 3.172(g); see also Campbell, at 739. He attempted to assert this right, both independently and through his attorney, to no avail. Counsel was deficient in failing to adopt and present appellant’s motions to withdraw the plea because, under these circumstances, appellant had an affirmative right to withdraw the plea, and counsel’s failure to correctly advise or advocate appellant’s desire in this instance constitutes deficient performance. See Puglisi v. State, 112 So.3d 1196, 1205 (Fla.2013) (holding that decisions on whether to plead guilty or waive the right to a jury trial reside solely with the defendant).

Regarding the prejudice prong of the ineffective assistance analysis, the trial court’s order cogently describes why appellant would almost certainly not have fared any better if he had gone to trial rather than taken a plea and explains why various defenses or tactics were not available or would not have helped appellant’s case. Yet, that is not the relevant inquiry in this particular circumstance. The appropriate analysis, rather, is whether appellant has demonstrated that he would not have pled if he had been competently advised. See Brazeail, 821 So.2d at 368.

The record establishes that appellant would have withdrawn the plea if he had been allowed. Appellant’s trial counsel testified that, if he had known that the plea had never been formally accepted, he would have been obligated to adopt and present to the trial court appellant’s desire to withdraw the plea. In the order denying post-conviction relief, the court specifically found trial counsel’s testimony was credible, so it is logical to assume that if trial counsel had been aware that appellant did, in fact, have the right to withdraw his plea at the time he attempted to do so, counsel would have pursued withdrawal of the plea.

Moreover, appellant’s likelihood of success at trial is not determinative here, because he was seeking to withdraw his plea prior to sentencing or formal acceptance, which, based on the rules of criminal procedure and interpreting case law, he had an unfettered right to do. At the deposition, trial counsel testified that he explained to appellant that based on the facts of the case, appellant had almost no chance of being acquitted at trial, and that appellant’s best option was to enter a plea and try to get a term of years sentence. Based on that advice, appellant initially entered the plea. Later, despite being aware of the State’s seemingly overwhelming evidence against him, he decided that he wanted to withdraw his plea and risk going to trial, even if that meant facing the death penalty. Thus, appellant has established prejudice because he has shown a reasonable likelihood that he would have withdrawn his guilty plea and gone to trial, in spite of his slim odds, if he had not been ineffectively represented.

Accordingly, we REVERSE the order denying post-conviction relief and REMAND with instructions that appellant be permitted to withdraw his plea of guilt.

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


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    D.A., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Guardian Ad Litem Program, and B.C., V.A., A.A., D.A., L.A., and E.A., Appellees.
    No. 4D13-2523.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Rehearing Denied Feb. 14, 2014.

      Anthony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Rosemarie Farrell, Department of Children And Families, Orlando, for appellee Department of Children And Families.
    Hillary S. Kambour, Guardian ad Litem Program, Sanford, for appellee Guardian ad Litem Program.
    William Booth of Legal Aid Society of Palm Beach County, West Palm Beach, for appellees B.C., V.A., A.A., D.A., L.A., and E.A.
   GERBER, J.

The mother argues that her rights to due process and to a hearing by a fair and impartial judge were violated when the judge who ordered the Department of Children and Families to file a petition for termination of parental rights was the same judge who heard the termination trial and decided the termination petition. We conclude that the appellant’s right to due process and to a fair and impartial judge were not violated through this procedure. Cf. In the Interest of J.R.T., 427 So.2d 251, 252-53 (Fla. 5th DCA 1983) (a court has the authority to order the filing of a petition for termination of parental rights; “To hold that [the Department] alone could initiate termination proceedings would be to permit the [Department] to restrict and frustrate the inherent and statutory authority of the court to protect the welfare of minor children.”); Lisa K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 281 P.3d 1041, 1046-48 (2012) (permitting a judge both to direct the filing of a motion to terminate a mother’s parental rights and to preside over the termination hearing is not the equivalent of permitting a judge to order a criminal trial and also to preside over the trial, essentially permitting the judge to act as both prosecutor and trier of fact, where many procedural protections exist to ensure that termination is not a foregone conclusion once the judge directs the filing of a motion to terminate).

Affirmed.

DAMOORGIAN, C.J., and LEVINE, J., concur.


author: PER CURIAM.

text:
    Beau GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5187.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Beau Graham, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See e.g., Dixon v. State, 616 So.2d 61 (Fla. 3d DCA 1993).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Novel AUSTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0128.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Novel Austin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Eddie Dean FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0260.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Eddie Dean Ford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Michael F. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0283.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Michael F. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


author: SWANSON, J.

text:
    Derrick ALLEN, Appellant, v. Sergeant FRAZIER, Sergeant Clark, and Correctional Officer Stone, Appellees.
    No. 1D13-692.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Derrick Allen, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Cecilia Bradley, Senior Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

This appeal is from the trial court’s “Order of Dismissal,” dismissing with prejudice appellant’s complaint on the basis that his claim is moot or, alternatively, on the basis that appellees are immune from suit and because appellant’s additional claim for contribution “is not a cognizable cause of action” under the present circumstances. We affirm without further comment the latter ruling, but that decision is not dispositive. On the remaining points, for the reasons that follow, we hold the trial court erred in dismissing the complaint. Consequently, we reverse.

After exhausting his administrative remedies, appellant filed a complaint and, later, an amended complaint, seeking damages caused by an incident that occurred in his prison cell while he was on work duty elsewhere in the prison, initially naming as defendants the Secretary of the Department of Corrections, the prison warden, and appellees, who are employed as correctional officers by the Department. According to the complaint’s allegations, in the early morning hours of September 9, 2009, the toilets in appellant’s wing overflowed and the inmates were accused by appellees of intentionally flooding the cells. This prompted appellees to enter and search the cells in retaliation. During this “event,” personal property belonging to some of the inmates was damaged or destroyed. In appellant’s case, the complaint alleged appellees ripped up “$1,000.00” worth of “legal” transcripts, along with several of his books, and threw the pages in the contaminated water. In addition, it is asserted they threw three of appellant’s “Muslim kufl caps” in the toilet and urinated on them, and then damaged or destroyed other specialty items appellant used for his personal hygiene. These acts, according to the complaint, were done outside the scope of appellees’ employment and amounted to gross negligence that was “wanton,” “retaliatory,” “arbitrary and capricious.”

On September 16, 2011, a judge earlier assigned to the case entered an order granting the Secretary’s and warden’s motions to dismiss, but denying appellees’ motions. As for appellees, the judge ruled the allegations were sufficient to state a cause of action against appellees in their individual capacity, citing Hall v. Knipp, 982 So.2d 1196 (Fla. 1st DCA 2008). Thereafter, appellees filed a motion for summary judgment, relying on grievances appellant had filed in 2010, as well as an October 22, 2010, release appellant had executed. In the release, appellant stated he was voluntarily releasing the Department of Corrections “from all and any responsibility for [his] property that was lost or misplaced ... including] all grievances filed from Jan. 2010 thru [sic] October 22, 2010. All issues pertaining to inmate property is [sic] hereby resolved.” Appellees also claimed immunity from suit under section 768.28(9)(a), Florida Statutes; argued appellant failed to satisfy the conditions for contribution; and asserted that under Florida Administrative Code Rule 33-602. 203(8), they, as “officers,” were authorized to search an inmate’s cell for contraband at any time. Appellant responded to the motion by pointing out that the grievances and release appellees relied on “ha[d] nothing to do with the ease at hand” and appellees “were not authorized to destroy inmates[’] property or commit hate crimes by urinating on religious caps or take inmates[’] property without processing.”

Appellant’s complaint languished for over a year until he filed a “Motion to Hear and Rule.” In the meantime, the trial court judge who had earlier denied appellees’ motion to dismiss was reassigned and replaced by the present judge who, on January 29, 2012, reviewed appel-lees’ motion for summary judgment and, “on the court’s own motion,” dismissed appellant’s complaint because of the grievances and the release attached to the motion as exhibits. The judge held the release “involves the grievances [appellant] filed in this cause,” and, consequently, concluded the cause was moot. In the alternative, the judge ruled appellees are “immune in their individual capacity from allegations of a tort claim, as [appellant] has failed to allege ultimate facts sufficient to show a claim of wanton and willful disregard of human rights, safety or property,” as required by section 768.28(9)(a).

A careful review of the documents attached as exhibits to appellees’ motion for summary judgment supports appellant’s assertion that they are unrelated to the instant cause. The documents concern property appellant claimed had been lost during his transfer between Union Correctional Institution and Florida State Prison in 2010. They do not address the actions allegedly taken by appellees and the destroyed property at issue in his instant complaint and, therefore, do not support the trial judge’s conclusion that appellant’s complaint is mooted by the language contained in the release.

Furthermore, we hold the trial judge erred in concluding, in the alternative, that appellant “failed to allege ultimate facts sufficient to show a claim of wanton and willful disregard of human rights, safety, or property,” as required by section 768.28(9)(a). Section 768.28(9)(a) reads as follows:

No officer, employee, or agent of the state or of any of its 9 subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(Emphasis added.) “ “Whether a complaint should be dismissed is a question of law.’” Hall, 982 So.2d at 1198 (quoting City of Gainesville v. State, Dep’t of Transp., 778 So.2d 519, 521 (Fla. 1st DCA 2001)). Our standard of review is de novo. City of Gainesville, 778 So.2d at 521. At this stage of review, “we are bound to accept as true for purposes of decision the amended complaint’s well-pleaded factual allegations and draw all reasonable inferences from these allegations in appellant’s favor.” Hall, 982 So.2d at 1198 (citing Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002)). Applying this standard of review to appellant’s complaint, we conclude, as did the predecessor judge, that the allegations were sufficient to withstand a motion to dismiss. The allegations describing the manner in which appellees conducted the search of appellant’s cell as being “outside the scope of their employment,” the wanton destruction of appellant’s property, and the desecration of his religious items are sufficient at this stage of the proceedings to fall within the exception to immunity provided in section 768.28(9)(a).

Consequently, we hold the trial court erred in holding appellant failed to state a claim for which relief may be granted against appellees, individually. The final order is therefore reversed and remanded for further proceedings.

REVERSED and REMANDED.

BENTON and OSTERHAUS, JJ., concur.


text:
    Foster Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2634.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Foster Lee Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Foster Lee Brown appeals the summary denial of his motion seeking postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, the postconviction court’s denial of the appellant’s first and third claims. However, as to his second claim, we reverse.

“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003) (citing Lippman v. State, 633 So.2d 1061 (Fla.1994); Clark v. State, 579 So.2d 109 (Fla.1991); and N.H. v. State, 723 So.2d 889 (Fla. 5th DCA 1998)). The post-sentencing amendment of a judgment to impose an HFO designation is a double jeopardy violation that can be remedied pursuant to rule 3.800(a) if it is apparent from the face of the record. State v. Akins, 69 So.3d 261, 268-71 (Fla.2011). Further, where a defendant has stated a facially sufficient claim that is cognizable pursuant to rule 3.800(a), a trial court is required to attach records to an order of denial which conclusively refute his entitlement to relief. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994).

In the instant case, the appellant argued in his second claim that he was originally sentenced to 30 years for the charge of aggravated battery, and then was brought back to court two days later to be sentenced on this charge to 30 years as a habitual felony offender. He cited specific documents in the record to support his claim. The trial court denied this claim by stating that the appellant had failed to demonstrate a basis for relief. However, the appellant’s claim was cognizable pursuant to rule 3.800(a) and facially sufficient. Further, as the State concedes in its response to this Court’s Toler order, the trial court failed to attach documents to its order which refuted the appellant’s claim.

Accordingly, we reverse the trial court’s order denying the appellant’s rule 3.800(a) motion as to the second claim for relief. On remand, should the trial court again conclude that appellant’s claim lacks merit, it shall attach to its order the portions of the record conclusively refuting that claim. Otherwise, it shall grant the relief requested.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    William Cody LATNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2987.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; William Cody Latner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence but remand for correction of a scrivener’s error. The record indicates that the state charged the appellant with three counts of aggravated assault. However, as part of the plea agreement the state agreed to nolle prosse one of the aggravated assault charges. The judgment reflects that the appellant was convicted of all three aggravated assault charges. This appears to be a scrivener’s error.

We therefore remand the judgment for the trial court to enter an amended judgment striking the third aggravated assault charge.

AFFIRMED, but REMANDED with instructions to correct the scrivener’s error.

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


text:
    Courtney Darnell HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6216.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Courtney Darnell Henderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition and amended petition for writ of habeas corpus are collectively treated by the court as a petition alleging ineffective assistance of appellate counsel. The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Arthur D. FRASIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-742.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Arthur D. Frasier, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief with the sole exception of appellant’s claim that his conviction for aggravated battery under section 784.045(l)(a), Florida Statutes (2009), could not be reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009), based on the use of a weapon, which was an essential element of the offense. The jury in this case returned a verdict finding appellant “[gjuilty of Aggravated Battery Causing Permanent Disability, Permanent Disfigurement, or Great Bodily Harm and with a Deadly Weapon, as charged in the Information.” Appellant’s conviction for aggravated battery under both statutory theories cannot be reclassified pursuant to section 775.087(1) because it cannot be determined that the conviction was not based on the use of a deadly weapon. Descault v. State, 90 So.3d 997 (Fla. 1st DCA 2012); Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010); Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008); Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006); Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996); McNeal v. State, 653 So.2d 1122 (Fla. 1st DCA 1995); Brown v. State, 583 So.2d 742 (Fla. 1st DCA 1991). Accordingly, we reserve and remand for resen-tencing of the offense as a second-degree felony.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Richard KITTLES, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-2851.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Richard Kittles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

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


text:
    Michael Leon GEORGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4268.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the circuit court’s order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. The defendant argues he was entitled to relief because his first attorney did not properly advise him of a favorable plea offer which he claims he would have accepted on the two counts charged. We reverse and remand for the circuit court to reconsider its order in light of the Florida Supreme Court’s later pronouncement of the four-part prejudice analysis in Alcorn v. State, 121 So.3d 419 (Fla.2013).

At the evidentiary hearing on the motion, the defendant testified that his first attorney did not properly advise him of a fifty-two month plea offer. The defendant also testified that his first attorney did not advise him of the maximum sentences he faced upon conviction for the charged offenses, that he qualified for enhanced sentencing as a prison releasee reoffender (“PRR”) and as a habitual felony offender (“HFO”), and that the plea offer would expire on a specific date. The defendant’s first attorney similarly testified that he did not recall whether he advised the defendant about the maximum sentences, the potential enhancements, or the plea offer’s expiration date.

From that point, the record is undisputed. The plea offer expired and the defendant decided to enter an open plea. At the plea hearing, the court properly advised the defendant of his maximum sentences. However, after the defendant entered the open plea, but before sentencing, the parties learned that the defendant qualified for enhanced PRR and HFO sentencing.

After learning of the defendant’s PRR and HFO qualifications, the state acknowledged that the defendant could withdraw his open plea. However, the state notified the defendant that if he withdrew his open plea, it would seek both the PRR and the HFO enhancements, and if the defendant maintained his open plea, it would seek only the PRR enhancement. The defendant, represented by a new attorney, chose not to withdraw his open plea. The court sentenced the defendant to concurrent terms of fifteen years in prison as a PRR on count one and ten years on count two.

After considering the record, the circuit court denied the defendant’s rule 3.850 motion, finding that the defendant failed to demonstrate prejudice. The court reasoned that the first attorney’s misadvice regarding the plea offer was cured when the court properly advised the defendant of his maximum sentences before he entered his open plea.

This appeal followed. While this appeal was pending, our supreme court decided Alcorn, which involved a comparable claim. In Alcorn, the defendant claimed his attorney misadvised him that his maximum sentence was thirty years, when in fact he faced a maximum life sentence because he qualified as an HFO. Based on that mis-advice, the defendant rejected the state’s twelve-year plea offer. After trial, the state discovered that the defendant was eligible for enhanced sentencing as an HFO. The trial court imposed a thirty-year HFO term.

Our supreme court concluded that although the defendant ultimately received what he was misadvised was the maximum sentence, this result did not preclude a finding of prejudice. To reach its conclusion, the court clarified that prejudice is determined based upon the circumstances “at the time of the offer and what would have been done with proper and adequate advice.” Alcorn, 121 So.3d at 432 (analyzing Missouri v. Frye, _ U.S. _, _, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, _ U.S. _, _, 132 S.Ct. 1376, 1384-85, 182 L.Ed.2d 398 (2012)). The court then held that, to establish prejudice in connection with a lost plea, a defendant must demonstrate: (1) the defendant would have accepted the plea offer if counsel had advised the defendant correctly; (2) the prosecutor would not have withdrawn the plea offer; (3) the court would have accepted the plea offer; and (4) the conviction or sentence, or both, under the plea offer’s terms would have been less severe than the actual judgment and sentence imposed. Id. at 433.

Here, the circuit court’s denial of the defendant’s rule 3.850 motion predated Al-corn and is not consistent with our supreme court’s modified prejudice analysis. Thus, we are unable to review the defendant’s appeal in its current posture. See Alcorn, 121 So.3d at 425-26 (“In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.”) (citation omitted). Consequently, we remand for the circuit court to apply Alcorn’s four-part prejudice analysis set forth above.

Reversed and remanded for proceedings consistent with this opinion.

CIKLIN, GERBER and LEVINE, JJ., concur.

      . The ten-year term on count two was given an HFO designation. The state, in responding to the defendant's rule 3.850 motion challenging the HFO designation, conceded that the court should strike the HFO designation.


text:
    Armando CABALLERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-335.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Armando Caballero, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Armando Caballero (Defendant) appeals an order summarily denying his Rule 3.850 motion and the order denying his motion for rehearing. Defendant chai-lenged the summary denial of his motion on several grounds, but we reverse based only on Grounds Four and Seven: that trial counsel was ineffective in failing to call a witness at trial to testify regarding the victim’s statements and in failing to investigate and present mitigating evidence at Defendant’s sentencing. We affirm as to the other grounds raised by Defendant without further discussion.

Defendant was charged with four counts of sexual battery by a person in familial or custodial authority committed between March 1,1998, and June 30,1999; and two counts of indecent assault completed by December 18, 1998. The victim was Defendant’s daughter, who was born in December 1982, and with whom he had no contact from the time she was an infant until she was twelve years old. When she was thirteen, the daughter spent the summer of 1996 visiting Defendant in New York, where he and his wife resided. The relationship between Defendant and his daughter became a “boyfriend/girlfriend” relationship, and she became pregnant. When she visited Defendant again in December 1996, her mother agreed to let her remain in New York during the pregnancy. She gave birth to a baby girl in May 1997, but hid from her mother the true identity of the baby’s father.

The charges at issue relate to events that allegedly occurred in Florida in 1998 and 1999. In January 1998, the victim and her baby moved back to Florida to live with the victim’s mother. Defendant followed in March 1998, sleeping in the bedroom that his daughter shared with the baby, and allegedly continuing to have sexual contact with her. In June 1999, Defendant and his daughter moved into their own apartment, where they had sexual contact almost every day. Later, the daughter returned home to live with her mother. During an argument between the two women in November 1999, the daughter told her mother that Defendant was the baby’s father. Her mother immediately called the police, and a paternity test indicated there was a 99.994% chance that Defendant was the baby’s father.

Evidence of Defendant’s acts of molestation in New York before the charged acts in Florida was admitted at Defendant’s jury trial. The trial court overruled his objection to this evidence after concluding that it was inextricably intertwined. Defendant was found guilty of all counts as charged and sentenced immediately after trial to 844.75 months (70.4 years) on each count, to be served concurrently. His sentence was at the top of his scoresheet range; the bottom was 506.85 months, or 42.24 years.

In the fourth ground of his Rule 3.850 motion, Defendant claimed his trial counsel was ineffective for failing to call his common law wife, Mayda Velazquez, as a defense witness at trial. He had told counsel she would testify that after Defendant’s arrest, the victim disclosed to her that Defendant had not had any type of sexual contact with the victim since they were in New York, but she had been pressured by her mother to make the statements against him because he had broken off his relationship with her mother after the victim found him and her mother involved in a sexual act. Counsel told Defendant he would call Velazquez, but failed to do so. Velazquez attended the trial every day, waiting to testify. Before the trial ended she approached counsel, who informed her Defendant would be acquitted with the admission into evidence of the New York birth certifícate. But counsel did not call Velazquez to testify or introduce the birth certificate into evidence. According to Defendant, if the jury had heard Velazquez testify that the victim said she and Defendant had not had any sexual relations in Florida and that she was pressured to make false allegations, there was a reasonable probability of a different verdict.

The state argued in its response that the proposed testimony would have been mere hearsay, so the witness could not have been called. Second, the witness did speak at Defendant’s sentencing and never said anything then about what the victim told her. Finally, before the defense rested, Defendant was asked whether he was satisfied with counsel’s services, and Defendant said he was, rather than saying he was not satisfied because he wanted counsel to call Velazquez as a witness.

In his motion for rehearing, Defendant argued that characterizing Velazquez’s proposed testimony as hearsay did not negate its admissibility, citing Alvarez v. State, 817 So.2d 1037 (Fla. 3d DCA 2002). In that case, the defendant was convicted of numerous counts of sexual battery on a minor. The trial court excluded, as hearsay, the victim’s friend’s statement that the victim told her that her (the victim’s) father was paying her off to say the defendant was molesting her. The appellate court concluded, “That ruling was error. The statement was not hearsay, as it was not offered to prove the truth of its contents.” Id. at 1038 (citing, inter alia, § 90.801(l)(c), Fla. Stat. (1997) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”) (emphasis added); and Ehrhardt, Florida Evidence § 801.2 (2000 ed.)).

The current edition of the same treatise contains the following pertinent statement: “Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather that the witness has made two inconsistent statements and therefore should not be believed.” EhRhardt, Florida Evidence § 801.4 (2013 ed.) (emphasis added).

In his brief, Defendant points out that his motion contained all the necessary elements to make this ground sufficient — the witness’ identity, the substance of the testimony, the availability of the witness, and how the omission prejudiced the outcome of the trial. He argues that Velazquez’s testimony was crucial to his defense; without it, the state’s version of the events went unrefuted. He never denied engaging in illegal acts with the victim in the past, but contended he never did such acts in Florida. He attaches Velazquez’s February 8, 2013 affidavit, which corroborates his allegations.

In its response to this court’s order to show cause, the state agrees that Defendant satisfied all the requirements for a claim of ineffective assistance of counsel for failing to call a witness, Nelson v. State, 875 So.2d 579, 582 (Fla.2004). Nevertheless, the state continues to argue Defendant is not entitled to relief — for the same reasons that the state argued below, including that the proposed testimony would have been excluded as hearsay. We conclude, however, that this fourth ground is sufficient, reverse the summary denial, and remand for further proceedings.

Defendant’s seventh ground was ineffective assistance of counsel in failing to discover mitigating evidence which could have been presented at his sentencing. This evidence concerned his extensive childhood abuse, mental illness in him and his family, a history of depression and homelessness during the fifteen years he lived in New York, physical and sexual abuse he suffered in foster homes in Cuba from seven to twelve years of age when his mother was incarcerated, extreme poverty, alcoholic parents, and brutal beatings and torture when he was arrested as a child. Defendant contends that had the trial court heard this evidence, there was a reasonable probability that the trial court would have given him a sentence below the maximum. Defense counsel, however, encouraged the court to sentence Defendant immediately after trial without any preparation for sentencing. Defendant argues that counsel should have made at least a minimal effort to discover available mitigating evidence.

In its response, the state argued that there was no evidence that Defendant had told counsel about his history so that counsel would conduct an investigation; therefore, counsel could not reasonably be expected to present such evidence at the sentencing hearing.

In his motion for rehearing, Defendant argued he should have had an opportunity to amend under Spera v. State, 971 So.2d 754 (Fla.2007), as the failure to investigate mitigating evidence for sentencing constitutes a sufficient claim. Morton v. State, 995 So.2d 233 (Fla.2008) (finding investigation was not deficient); Hildwin v. Dugger, 654 So.2d 107, 110 (Fla.1995) (agreeing trial court erred in concluding defendant was not prejudiced by counsel’s failure to investigate and present additional mitigating evidence at sentencing, depriving defendant of reliable penalty phase hearing).

On appeal, Defendant now contends counsel was aware of mitigation evidence that could have helped him, but chose not to present it. Defendant told him all about his childhood of physical and sexual abuse, but counsel never provided an expert to examine or interview him. As noted, failure to present available mitigating evidence at a sentencing hearing can be a sufficient postconviction claim. E.g., Rivera v. State, 1 So.3d 1158 (Fla. 2d DCA 2009) (reversing summary denial of claim that counsel failed to present mitigating evidence that victim consented to sexual activity, and circumstances of defendant’s arrest between plea and sentencing hearings); c.f. Lightbourne v. State, 471 So.2d 27 (Fla.1985) (affirming denial of rule 3.850 motion, inter alia finding trial counsel was not ineffective for failing to present mitigating evidence at sentencing because record reflected sentencing judge was aware of many mitigating factors and other factors were merely cumulative). The state did not attach a transcript showing what defense counsel argued at sentencing. In his initial brief, Defendant showed he could allege, if given an opportunity to amend, that counsel was aware of mitigation evidence.

We reverse the summary denial of this ground and direct the trial court on remand to strike it as legally insufficient and allow Defendant sixty days in which to amend. Fla. R. Crim. P. 3.850(e), (f)(3).

Affirmed in part; Reversed in part and Remanded.

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

      . In the affidavit, Velazquez stated the following:
      I was a common law wife of Armando Caballero the Defendant at the time of his jury trial on January 23-25 of 2006. I also had a friendly relationship with the victim in this case ... who confided to me that Armando did not have any type of sexual contact with her since they left New York. Armando’s attorney Mr. O’Connell was aware of that and I was willing and aviable [sic] to testify. I showed up every day of Armando’s trial but his attorney never called me as a witness. I was only called as a mitigation witness to ask for mercy at Armando’s sentencing after trial finished.


author: CONNER, J.

text:
    Heather M. MINTY, Appellant, v. MEISTER FINANCIAL GROUP, INC., Appellee.
    No. 4D13-699.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Theresa B. Edwards and June M. Clark-son of Edwards & Clarkson, P.A., Fort Lauderdale, for appellant.
    Paula Levy and Michael Rothman of Rothman & Tobin, P.A., Coral Springs, for appellee.
   CONNER, J.

This case comes before us a second time after we previously remanded for further proceedings. In the first appeal, we reversed the circuit court after determining it erred in failing to conduct an evidentiary hearing on a motion to dissolve a temporary injunction and in severing some counterclaims from the claim for a mandatory injunction. Minty v. Meister Fin. Grp., Inc., 97 So.3d 926 (Fla. 4th DCA 2012). The temporary injunction required that money held in an attorney’s trust account for a closing to refinance a loan be transferred to the registry of the court. We remanded for the circuit court to hold an evidentiary hearing on the motion to dissolve, with instructions that the lender shall have the burden to present evidence sufficient to grant injunctive relief.

The- circuit court complied with our previous decision, conducted an evidentiary hearing, and entered a written order determining that there were grounds for a temporary injunction to keep the money in the registry of the court and requiring a bond. That order was not appealed. Subsequently, the circuit court modified the injunction and directed that the funds be disbursed to the lender who provided the funds with no further restrictions. We reverse for a second time because the procedure followed by the circuit court in modifying the temporary injunction granted the lender the permanent relief requested by the lender without properly considering the borrower’s counterclaims.

Factual Background and Proceedings After Remand

A brief discussion of the facts leading up to the remand will give context to what happened thereafter.

The borrower was sued in a different case by a non-party bank seeking to foreclose its mortgage. To avoid the foreclosure, the borrower entered into a loan refinance agreement with the lender in this case. The refinance agreement provided for the existing mortgage in foreclosure to be paid off so that the lender would have a first mortgage lien on the borrower’s property. The borrower’s attorney was to be the closing agent for the refinance loan closing.

Four years after the loan proceeds were sent to the closing agent, the borrower fell behind in her payments on the refinance loan. In preparing to file suit, the lender learned that the funds were not used to pay off the mortgage in default; instead, the money remained in the closing agent’s trust account. During those four years, the borrower made the payments on the refinance loan.

Upon learning the prior mortgage had not been paid off, the lender filed a complaint for a temporary injunction and a permanent injunction against the borrower and the closing agent. The complaint requested that the money retained in the closing agent’s trust account be transferred to the trust account of the lender’s attorney. The lender also requested that these funds be used to pay off the prior mortgage, and that if the prior mortgage holder rejected the funds as insufficient, the funds be returned to the lender and its loan extinguished.

After filing the complaint, the lender moved for and obtained a temporary injunction without an evidentiary hearing. The temporary injunction directed that the money be transferred from the closing agent’s trust account to the trust account of the lender’s attorney.

The borrower filed her answer, affirmative defenses, and counterclaims. Her counterclaims sought damages for the lender’s alleged misconduct regarding the loan agreement. The borrower also filed a motion to dissolve the temporary injunction. The circuit court did not conduct a hearing on the motion to dissolve. Instead, the circuit court entered an order amending the temporary injunction to direct that the money be transferred to the court registry.

The circuit court also granted the lender’s motion to sever the counterclaims from the injunction proceeding. The borrower appealed both the temporary injunction and the order granting severance of her counterclaims.

We reversed the temporary injunction for the reasons stated above. We also reversed the order granting severance after determining that the parties’ claims were inextricably interwoven. We remanded the case for the circuit court to conduct a hearing on the motion to dissolve the temporary injunction and we directed that the circuit court try all claims together. Minty, 97 So.3d at 931.

On remand, as directed, the circuit court held an evidentiary hearing to determine if there were sufficient grounds for an injunction and to consider the previously filed motion to dissolve the temporary injunction. After determining that the lender made a sufficient showing for a temporary injunction, the circuit court entered a temporary injunction that included the necessary determinations required by Florida Rule of Civil Procedure 1.610(c) and set a bond for the injunction. In addition, the temporary injunction directed the lender’s attorney to negotiate the payoff and satisfaction of the prior mortgage and to report back to the circuit court within thirty days with the status of the negotiations. In the last paragraph, the injunction states, “[a]t the conclusion of 30 days, the Court will make a determination as to what further relief may be necessary and proper.” No appeal was taken as to the temporary injunction entered after the evidentiary hearing.

Subsequently, the lender filed a motion to disburse funds held in the court registry, and the court held a hearing on the matter. At the hearing, the lender’s counsel explained that the prior mortgage holder would not accept the funds in the court registry in satisfaction of its loan. After the ten minute, non-evidentiary hearing, the circuit court granted the lender’s motion to disburse the funds. It is this order, entered after the grant of a temporary injunction, which the borrower now appeals.

Legal Analysis

The borrower argues on appeal that the circuit court failed to comply with the mandate issued after the first appeal. The borrower contends that our previous opinion ordered that the money was not to be disbursed until a trial was conducted to resolve both the lender’s claims for an injunction and the borrower’s counterclaims. The borrower asserts that it was error for the circuit court to convert the evidentiary hearing on her motion to dissolve the injunction into a final hearing of the case.

We begin our analysis by noting that the order on appeal (directing that the money in the court registry be disbursed to the lender) modified a previously issued temporary injunction (directing that the money be held in the court registry). The purpose of the temporary injunction was to keep the funds secured until a final hearing was conducted.

A circuit court’s decision to modify a temporary injunction is reviewed under an abuse of discretion standard. Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842, 843 (Fla. 3d DCA 2007) (holding that modification or dissolution of a temporary injunction is subject to same abuse of discretion standard as with a permanent injunction); Elias v. Steele, 940 So.2d 495, 497 (Fla. 3d DCA 2006) (“[T]rial courts have broad discretion in dissolving or modifying [permanent] injunctions, and unless a clear abuse of discretion is established, appellate courts will not disturb the trial court’s decision.”) (citations omitted). In this district, modification of a temporary injunction entered after notice and hearing does not require an evidentiary showing of a change in circumstances demonstrating the temporary injunction is no longer equitable. See Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744, 745-46 (Fla. 4th DCA 1999). The problem is that the trial court did not simply amend the temporary injunction so as to keep the funds secured pending disposition of the case.

The order on appeal disbursed the funds to the lender with no restrictions. We agree with the borrower that the order in essence granted the permanent injunctive relief sought by the lender, avoiding a trial on the borrower’s counterclaims. As we said in our previous opinion in this case,

[t]he parties’ claims are inextricably interwoven because the borrower’s affirmative defenses and counterclaims allege the lender committed misconduct regarding the loan agreement. Accordingly, if we allow the borrower’s affirmative defenses and counterclaims to remain severed, then a final judgment in the lender’s favor on its claim will moot the borrower’s affirmative defenses and counterclaim, leaving the borrower no adequate remedy on appeal.... The circuit court shall try all claims together, with a jury to decide any legal claims and the court to decide any equitable claims.

Minty, 97 So.3d at 931. Disbursing the money to the lender with no further requirement to hold the money in trust until the final hearing was not in compliance with our previous decision that the lender’s claims and the borrower’s counterclaims were to be tried together.

The lender argues that the circuit court’s order on appeal was proper because during the evidentiary hearing the borrower testified, and the circuit court found, that she made no claim of interest in the money in response to questions asked by the court. The borrower’s testimony was too ambiguous and equivocal to be competent, substantial evidence supporting a finding that she claimed no interest in the funds. Hillier v. City of Plantation, 935 So.2d 105, 107 (Fla. 4th DCA 2006).

Reversed and Remanded for further proceedings.

TAYLOR and KLINGENSMITH, JJ, concur.

      . We also determined that the circuit court erred in entering the temporary injunction by not making written findings as to the reasons justifying an injunction and not determining an appropriate bond amount.

      . The complaint alleged that the borrower directed her attorney, the closing agent, not to transfer the money to the prior mortgage holder so that she could negotiate a lower payoff of the prior mortgage.

      . Although the order granting the temporary injunction after the evidentiary hearing does not explicitly state the motion to dissolve the injunction was denied, by granting the temporary injunction on remand, the circuit court implicitly denied the motion to dissolve.

      . The Third District also agrees that modification of a temporary injunction entered after notice and hearing does not require an evi-dentiary showing of a change in circumstances demonstrating the temporary injunction is no longer equitable. Bay N Gulf, Inc., 971 So.2d at 843. However, the First, Second, and Fifth Districts do not authorize the dissolution or modification of a temporary injunction entered after notice and hearing absent evidence showing a significant change in facts or circumstances. See Thomas v. Osler Med., Inc., 963 So.2d 896, 900 (Fla. 5th DCA 2007) ("If proper notice was provided and an evidentiary hearing conducted prior to issuance of the temporary injunction ... a motion to dissolve is limited to raising only new matters and a trial court will not abuse lts discretion in denying the motion if the enjoined party does not establish that a change in conditions justifies dissolution.”); Hunter v. Dennies Contracting Co., 693 So.2d 615, 616 (Fla. 2d DCA 1997) (holding that it was incumbent upon the enjoined to party to prove "some change of circumstance” that would justify dissolution despite the fact that the movant made "a persuasive argument that the evidence submitted at the initial temporary injunction hearing was legally insufficient to support issuance of the temporary injunction”); Brock v. Brock, 667 So.2d 310, 312 (Fla. 1st DCA 1995) ("A temporary injunction should be dissolved only where the facts and circumstances have changed to the point that equity dictates the injunction is no longer needed.”).

      . The borrower was not represented by counsel at the evidentiary hearing.


text:
    Nancy STONE, Appellant, v. Ross G. STONE and Alma G. Stone, Appellees.
    No. 4D12-2642.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Peter Matwiczyk, Benjamin P. Brown, and Thornton B. Henry of Matwiczyk & Brown, LLP, West Palm Beach, for appellant.
    William T. Viergever of Sonneborn Rut-ter Cooney & Smith, P.A., West Palm Beach, for appellee Ross G. Stone.
   PER CURIAM.

Appellant, Nancy Stone, appeals the trial court’s order striking her motion for costs and denying her motion to have the motion for costs deemed timely filed. We reverse and remand because Florida Rule of Civil Procedure 1.525 did not apply to appellant’s motion for costs.

Generally, in civil proceedings, “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment ... which judgment or notice concludes the action as to that party.” Fla. R. Civ. P. 1.525. However, under Florida Probate Rule 5.025(d)(2), adversary probate proceedings, “as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.” This probate rule is applicable to the order on appeal in this case. In re Amendments to the Florida Probate Rules, 95 So.3d 114, 115 (Fla.2012). The inapplicability of rule 1.525 in adversary probate proceedings functions identically to the inapplicability of the rule in proceedings governed by the Florida Family Law Rules of Procedure. See Montello v. Montello, 961 So.2d 257, 258-59 (Fla.2007); Hollister v. Hollister, 965 So.2d 841, 349-50 (Fla. 2d DCA 2007); Smith v. Smith, 902 So.2d 859, 862-63 (Fla. 1st DCA 2005).

As such, the trial court erred in striking appellant’s motion for costs based on the motion being untimely served under the thirty-day rule of Florida Rule of Civil Procedure 1.525. We, therefore, reverse and remand for further proceedings on appellant’s motion for costs.

Reversed and remanded for further proceedings.

MAY, LEVINE and CONNER, JJ., concur.

      . We find this issue preserved for our review, even though it was presented by appellant for the first time in a motion for rehearing. See Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 278-79 (Fla. 1st DCA 2012); Philip J. Padovano, Florida Civil Practice § 22:9 (2014 ed.) ("If the motion for rehearing presents a pure issue of law, the trial judge must decide the issue according to the applicable principles of law and may not exercise discretion.”).


author: DAMOORGIAN, C.J.

text:
    Marina Yadira PADILLA, Appellant, v. Arnoldo Noel VINDEL, Appellee.
    No. 4D12-4156.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Curt Sanchez and Ross Baer of The Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    No appearance for appellee.
   DAMOORGIAN, C.J.

Appellant, Marina Yadira Padilla, appeals the trial court’s final order dismissing her petition for dissolution of marriage for lack of jurisdiction. We reverse because the record before us established that the Appellant resided in the state six months before the filing of the petition as required by section 61.021, Florida Statutes (2012). See Rudel v. Rudel, 111 So.3d 285, 290 (Fla. 4th DCA 2013).

Reversed.

GERBER and LEVINE, JJ., concur.


text:
    Matthew TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4475.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Carey Haughwout, Public Defender and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Matthew Turner, appeals the trial court’s revocation of probation based on a finding that he committed the new crime of burglary of a dwelling. The trial court’s finding was supported solely by hearsay evidence. Because hearsay alone is insufficient to establish a violation of a condition of probation, the trial court abused its discretion in revoking appellant’s probation. Hendricks v. State, 59 So.3d 368, 370 (Fla. 4th DCA 2011); Ford v. State, 678 So.2d 432, 432 (Fla. 4th DCA 1996); Clayton v. State, 422 So.2d 83, 83 (Fla. 2d DCA 1982). Appellant’s original probationary period began on July 21, 2010, and would have expired on July 21, 2012. For this reason, on remand, the trial court shall discharge appellant from incarceration and not restore him to supervision. Thompson v. State, 974 So.2d 594, 599-600 (Fla. 2d DCA 2008).

Reversed and remanded.

DAMOORGIAN, C.J., GERBER and LEVINE, JJ., concur.


text:
    Jeanne HELD, Appellant, v. GABRIEL TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 4D13-482.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Kenneth E. Zeilberger of Katzman Gar-finkel and Berger, Margate, for appellee.
   PER CURIAM.

Affirmed. See Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994).

WARNER, GROSS and CONNER, JJ., concur.


author: HUGHES, J.,

text:
    Lange Walker ALLEN, II v. Susan Taylor ALLEN.
    No. 2013-CC-596.
    Supreme Court of Louisiana.
    June 21, 2013.
   HUGHES, J.,

assigning reasons.

Respectfully, I would grant the writ application. Applicant was found guilty of contempt of court and sentenced to 30 days jail time before his scheduled hearing date on that issue, and before the judgment upon which the contempt was based was reduced to writing and signed by the trial court. Applicant had been ordered to execute a vehicle title conveying ownership (not interim use) before the merits of the partition action were heard. Applicant was ordered to pay attorney’s fees, not authorized by La. R.S. 13:4611(d). Other procedural irregularities are alleged.

Criminal contempt of court must be strictly applied upon an unequivocal basis. Notice and due process are required.


text:
    STATE of Louisiana in the Interest of J.M.
    No. 2013-CK-2877.
    Supreme Court of Louisiana.
    Dec. 18, 2013.
   HUGHES, J.,

would grant the writ.

Louisiana Children’s Code article 819 provides:

If a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s entry into the juvenile detention center or shelter care facility. If the hearing is not held, the child shall be released unless the hearing is continued at the request of the child.

With regard to the hearing required by article 819, Louisiana Children’s Code article 821 provides:

A. At the outset of the continued custody hearing, if not before, the court shall advise the child of his rights to counsel pursuant to Articles 809 and 810.
B. At the continued custody hearing, the state and the child may produce witnesses, who shall be examined in the presence of the child and shall be subject to cross-examination. The child may also testify, subject to cross-examination.
C. Hearsay evidence shall be admissible.
D. If probable cause has not been demonstrated, the court shall order the child’s release.
E. If probable cause has been demonstrated, the court may release the child. The court may also require bail or other security pursuant to Articles 823 through 825 if the court finds that such is necessary to secure the child’s appearance for subsequent hearings.
F. Notwithstanding any other provisions of this Code to the contrary, and due to the expedited nature of these hearings, in a judicial district comprised of more than one parish, a continued custody hearing may be conducted in any parish in the judicial district.


text:
    STATE of Louisiana v. Ray BOUDREAUX.
    No. 2013-KK-2732.
    Supreme Court of Louisiana.
    Jan. 17, 2014.
   PER CURIAM.

| tGranted. The state seeks review of the trial court’s judgment denying its motions to quash subpoenas duces tecum for the medical, education, and social security records of Keith Townsend, one victim of the crimes charged against respondent, and for the personnel files and disciplinary records of at least one former New Orleans Police Officer who testified at respondent’s first trial while still on the force. The trial court ruled that the state lacked standing to oppose the subpoenas and had, in any event, abandoned any opposition regarding the subpoenas for police records. The court nevertheless set a hearing on the requested production of Mr. Townsend’s medical records from University Hospital in New Orleans. The court further directed the state to disclose his contact information to the defense for purposes of providing him with notice of the hearing and an opportunity to appear and either oppose or consent to the disclosure. The failure of respondent’s trial attorneys to obtain those records formed one of several bases for granting respondent post-conviction relief on his prior convictions stemming from the same incident in a multifaceted claim of ineffective assistance of counsel. State v. Boudreaux, 13-0808 (La. App. 4 Cir. 6/18/13) (unpub’d), writ denied, 13-1687 (La.9/11/13), 120 So.3d 274.

| ¡¡The trial court erred. The state ordinarily is not the legal representative of its witnesses. United States v. Nachamie, 91 F.Supp.2d 552, 560-61 (S.D.N.Y.2000) (“[T]he Government cannot undertake to act as counsel to its witnesses.... [T]he Government’s interests and that of its witnesses are not identical and it would therefore be inappropriate for the Government’s attorney to act as counsel to its witnesses.”). The legislature has, however, charged prosecutors in Louisiana with the duty of protecting the rights of victims “in a manner no less vigorous than the protection afforded the criminal defendants.” La.R.S. 46:1841. The legislature has further provided that “[t]he victim shall be protected at all times by all rules and laws governing the criminal procedure and the admissibility of evidence applicable to criminal proceedings.” La.R.S. 46:1844(1). Thus, while the victim has the right to secure his (or her) own legal representative during prosecution of a criminal offense, with whom the prosecutor “may confer,” La.R.S. 46:1844(D)(1), the prosecutor remains first and foremost the protector of the victim’s rights and interests in conducting criminal proceedings. This duty gave the state in the present case sufficient interest to have standing to oppose the issuing of the subpoenas for the protection of the victim’s privacy interests in his medical, educational, and social security records.

The trial court nevertheless erred in setting a hearing on the production of the medical records from University Hospital in New Orleans, where the victim was taken immediately after sustaining knife wounds and blunt trauma to his head. Those records were, in fact, provided to defense counsel before trial, and then introduced by the state in connection with the testimony of Dr. John Hunt, who performed the emergency surgery to save lathe victim’s life. See State v. Boudreaux, 08-1504, p. 6 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, 1148-49, writ denied, 10-2434 (La.4/8/11), 61 So.3d 682. To this extent, the victim’s medical history is a matter of public record and he no longer has a privilege of confidentiality with respect to any information disclosed therein. The defense is, in fact, seeking only the graphic images made in connection with the surgery and after-care in the hospital, ie. X-rays and CAT scans. Given the prior admission of the victim’s documentary medical records in respondent’s first trial, the subpoena satisfied all of the criteria adopted by this Court in State v. Marcelin, 10-2036 (La.10/15/10), 46 So.3d 191, from the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), for the issuing of subpoenas duces tecum to non-parties in advance of trial or any pre-trial hearings. The requested graphic images are relevant and admissible; the request is specific; and production does not entail turning a subpoena duces tecum issued under La.C.Cr.P. art. 732 into a vehicle for conducting extensive pre-trial discovery never contemplated by the legislature in its comprehensive 1966 revision of the Code of Criminal Procedure when it added the article to “fill[] the gap [in existing law] without including the broad discovery procedures of the Federal Rules of Criminal Procedure.” La.C.Cr.P. art. 732, Off'l Rev. Cm’t-1966(a).

The trial court may therefore reissue the subpoena without conducting further proceedings in that respect. To this extent, the court’s order is modified. The order is, however, maintained with respect to the production of the victim’s medical records from Touro Infirmary Rehabilitation Center, where he was treated after his release from University Hospital, the New Orleans School District, Exceptional Children’s Services, and the Social [4Security Administration. The victim is to be given the opportunity to assert any privacy interests he has in those records. Cf. Fed. R.Crim.P. 17(c)(3)(2012) (“After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.”). The state need not divulge the victim’s contact information as long as it undertakes the responsibility for producing him at the hearing, during which the state may assert the Nixon/Marcelin criteria as additional grounds for quashing the subpoenas. Our prior denial of review in post-conviction proceedings leading to relief for respondent, has no precedential value with respect to production of those records. St. Tammany Manor v. Spartan Bldg. Corp., 509 So.2d 424, 428 (La.1987) (“A writ denial by this Court has no precedential value.”).

With respect to the police records, it appears that the state’s motion to quash the subpoena issued for one of the named officers addressed the grounds for opposing the motion under the Nixon/Marcelin criteria without the need for an independent supporting memorandum. The trial court should therefore reconsider the subpoena request(s) for production of police personnel and disciplinary records according to the Nixon/ Marcelin factors and determine whether the state, as opposed to a legal representative of the New Orleans Police Department, has standing to object to the subpoenas on grounds they are unreasonable and oppressive as a matter of La.C.Cr.P. art. 732.


text:
    In re Ford DIETH.
    No. 2013-B-2728.
    Supreme Court of Louisiana.
    Jan. 17, 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 deposit an advance fee into a client trust account, and incorrectly reported on his trust account disclosure statement that he does not handle client funds. 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 Ford J. Dieth, Louisiana Bar Roll number 4939, be suspended from the practice of law for a period of one year, with all but ninety days deferred, followed by a one-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 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.


author: PER CURIAM. JOHNSON, C.J.

text:
    In re David J. MOTTER.
    No. 2013-B-2591.
    Supreme Court of Louisiana.
    Jan. 17, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to communicate with a client, failed to hold disputed funds in trust, commingled client funds with personal funds, engaged in conduct constituting a conflict of interest, and engaged in conduct prejudicial to the administration of justice. Following 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 David J. Motter, Louisiana Bar Roll number 21366, 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.

JOHNSON, C.J., dissents and rejects consent discipline.

JOHNSON, C.J.

dissents.

|J reject the consent discipline. I find this matter requires further elucidation by the hearing committee, thus I would allow the matter to proceed to a hearing on the formal charges.


author: JOHNSON, Chief Justice,

text:
    STATE of Louisiana v. Skyler B. SACK.
    No. 2013-KK-2733.
    Supreme Court of Louisiana.
    Jan. 17, 2014.
   JOHNSON, Chief Justice,

would deny the writ application.

| tBased on the record, I find the Court of Appeal properly reversed the trial court’s denial of the motion to suppress. The probable cause evidence in this case is lacking as the anonymous Crime Stopper tip was approximately three months old and contained no corroborating information. Moreover, the “exigent circumstances” provided by the State — that the officers entered the home because people were beginning to gather outside and they did not want to attract attention — is unsupported by the evidence. The officers were in unmarked cars and were dressed in plain clothes, thus not alerting anyone to police action. Further, no testimony was provided to demonstrate that officers entered the home to conduct a protective sweep or that they believed other people were inside. A search warrant issued after illegal entry into the home does not cure the defect. Therefore, defendant’s motion to suppress evidence found after an unlawful search was properly granted by the trial court.


text:
    In re Ermence DeBOSE-PARENT.
    No. 2013-OB-2897.
    Supreme Court of Louisiana.
    Jan. 23, 2014.
   ORDER

|,Tlie Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent neglected her clients’ legal matters and failed to properly address the resulting fee disputes with her clients, improperly borrowed money from a client, allowed her client trust account to become overdrawn, and converted client and third-party funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Ermence DeBose-Parent, Louisiana Bar Roll number 20584, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Ermence DeBose-Parent for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Er-mence DeBose-Parent shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which she is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which she is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    Ashton MILLER, JR., et al. v. SATTLER SUPPLY COMPANY, INC., and Geico.
    No. 2013-CC-2558.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   PER CURIAM.

1 ¶ Plaintiffs’ decedent died as a result of injuries sustained in a workplace accident, which occurred when a large engine block he was cleaning fell on him. Plaintiffs subsequently filed the instant tort suit against decedent’s employer and its insurer, alleging the employer failed to adhere to proper safety procedures, which resulted in decedent’s death. Defendants moved for summary judgment, alleging plaintiffs’ exclusive remedy was in workers’ compensation, as plaintiffs were unable to show an intentional act on the employer’s part. The district court denied summary judgment, and the court of appeal denied supervisory writs. This application followed.

To recover in tort against defendants under La.R.S. 23:1032(B), plaintiffs must prove the employer (1) consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Moreau v. Moreau’s Material Yard, 12-1096 (La.9/21/12), 98 So.3d 297. In the instant case, plaintiffs do not allege the employer consciously desired to cause harm to decedent. Rather, they assert decedent’s injuries were substantially certain to follow as a result of inadequate equipment and procedures.

In Reeves v. Structural Preservation Systems, 98-1795 at pp. 9-10 (La.3/12/99), 731 So.2d 208, 213, we discussed the “substantial certainty” requirement as follows:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.
* * *
“ ‘Substantially certain to follow' requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ ” Jasmin v. HNV Cent. Riverfront Corp., supra [642 So.2d 311] at 312 [La.App. 4 Cir.1994], “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty' requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir.1993), writ denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir.1991)).

In the instant case, plaintiffs rely on the deposition of decedent’s co-worker, who testified he repeatedly told the employer about the frayed straps, rusted chains, and lack of a safety latch on the engine hoisting equipment. However, even accepting this testimony, it does not establish that decedent’s fatal accident was substantially likely to occur. As we explained in Reeves, the substantial certainty requirement has been held to require more than a mere probability of injury; rather, injury must be inevitable. The mere knowledge that a machine is dangerous, and that its use creates a high probability that someone will eventually be injured, is not sufficient to meet the substantial certainty requirement.

|sUnder the facts presented, we do not find decedent’s injury was inevitable. Rather, defendants point out similar cleaning machines had been used for nearly fifty years, and employees had performed the same procedures thousands of times without injury. As we explained in Simoneaux v. Excel Group, LLC, 06-1050 at p. 3 (La.9/1/06), 936 So.2d 1246, 1248, the employer’s actions in providing poor working conditions “may have been negligent or even grossly negligent, but they were not intentional.”

Accordingly, the writ is granted. The judgment of the district court is reversed, and summary judgment is granted in favor of defendants.

JOHNSON, C.J., dissents.

KNOLL, J., dissents and would deny the writ.