text:
    BRANCH BANKING AND TRUST COMPANY, a North Carolina banking corporation, as successor-in-interest to Colonial Bank by asset acquisition from the FDIC as Receiver for Colonial Bank, Appellant, v. ARK DEVELOPMENT/OCEANVIEW, LLC, a Florida limited liability company, Joseph Kodsi, individually, SKD Acquisition Corp., a Florida corporation, d/b/a Absolute Powder Coating, and Lae Nyy, LLC, a Florida limited liability company, Stone Profiles (I), LLC, a Delaware limited liability company, Smith & Sons Construction of Florida, LLC, a Florida limited liability company, and Michael Wall Plumbing Services, Inc., a Florida corporation, Appellees.
    Nos. 4D14-0046, 4D14-1925.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Christopher D. Donovan, W. Glenn Jensen and Shayne A. Thomas of Roetzel & Andress, LPA, Orlando, for appellant.
    Howard D. DuBosar and Robert C. Sheres of DuBosar Navon, PLLC, Boca Raton, for appellee Amy Kodsi.
   WARNER, J.

Branch Banking and Trust Company (“BB & T”) appeals a summary judgment order dissolving a writ of garnishment directed at a bank account owned by Amy Kodsi, the wife of BB & T’s judgment debtor, Joseph Kodsi. The trial court held that the evidence was conclusive that the wife, Amy, was the owner of the account and that it was not funded with monies from her husband, Joseph, and BB & T had not submitted any evidence to show that Joseph Kodsi had any equitable interest in the account. We agree and affirm.

BB & T secured a final money judgment against Joseph Kodsi and several companies associated with Joseph in August of 2011. Amy was not a party to the judgment. Attempting to collect on the judgment, BB & T served four writs of garnishment on Bank of America. Bank of America answered and identified three bank accounts and one safety deposit box which might be the subject of the writs. This appeal involves only the account ending in 8070. Bank of America set aside funds from that account, because the name on the account read “AMY KODSI POA JOSEPH KODSI ITF JOSEPH KODSI.” Shortly thereafter, Amy revoked the power-of-attorney and removed Joseph as a beneficiary of the account.

Pursuant to section 77.16, Florida Statutes (2013), Amy filed an affidavit alleging the funds in the 8070 account had been improperly garnished because they belonged to her and not her husband. BB & T filed a sworn statement objecting to Joseph’s claim of exemption as to some of the accounts. In this statement, BB & T did not allege that the funds in account 8070 were fraudulently transferred or are equitably the funds of Joseph.

Amy moved for summary judgment as to the garnishment of the 8070 account. She included depositions given by her and Joseph as well as affidavits from both spouses. In sum, the affidavits stated that she was the sole owner of the account, which was funded by income from two rental properties owned by her and Joseph as tenants by the entireties. She also supplied an affidavit from a Bank of America representative, which attached the account signature cards and the Bank of America’s policies as to those accounts.

BB & T opposed summary judgment on the grounds that there were genuine disputes of fact regarding the ownership and control of the 8070 account. It claimed, for the first time, that it was reasonable to infer that Joseph owned certain funds transferred into Amy’s account, although it did not allege the source of such funds. It did not file any affidavits to support its response, relying instead on Joseph and Amy’s depositions.

Amy filed a reply contending that BB & T was creating false ambiguities in her testimony and that the general source of funds in the account was undisputed. She argued BB & T had not brought forth any evidence to contradict her ownership of the funds.

The trial court granted Amy’s motion for summary judgment as to the garnishment of the 8070 account. It found that, because BB & T was a creditor only of Joseph and not of Amy, BB & T was only “entitled to garnish property owned exclusively by or due exclusively to Joseph Kod-si,” relying on section 77.01, Florida Statutes (2013), and Ginsberg v. Goldstein, 404 So.2d 1098 (Fla. 3d DCA 1981). It found BB & T had:

failed to submit any evidence to contradict the evidence submitted by Amy Kodsi which establishes that the Account is owned by Amy Kodsi and that the funds therein belong to Amy Kodsi. Moreover, [appellant] has failed to submit any evidence to establish that the Account or the funds therein belong exclusively to Joseph Kodsi such that they are subject to garnishment by [appellant]. :

From this ruling, BB & T appeals.

Review of an order granting summary judgment is de novo. Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000).

A judgment creditor has the right to garnish

any debt due to defendant [i.e., the judgment debtor] by a third person or any debt not evidenced by a negotiable instrument that will become due absolutely through the passage of time only to the defendant by a third person, and any tangible or intangible personal property of defendant in the possession or control of a third person.

§ 77.01, Fla. Stat. (2013). A judgment creditor may serve such a writ of garnishment on a garnishee, such as a bank. See § 77.06(1), Fla. Stat. (2013). If a third party claims the property belongs to him, rather than the judgment debtor, he can file an affidavit to this effect. See § 77.16(1), Fla. Stat. (2013). Amy filed such an affidavit, claiming full ownership of the funds.

We agree with the trial court that the evidence is uncontradicted that Amy is the title holder to the account. The POA and ITF designations did not give Joseph an ownership interest in the account. The signature card Amy signed when she added the POA and ITF designations indicated the account was still an “individual” account, as opposed to a joint account with survivorship or a tenancy by the entireties. Additionally, the Bank of America deposit agreement and disclosures effective at that time provided, “If more than one person’s name appears in the title of an account without a fiduciary, beneficiary or other designation, then the account is a joint account.” (Emphasis added). Here, there were other designations, meaning it did not become a joint account. Based upon the account documents, Amy was the sole owner of the account.

The trial court correctly cited to Ginsberg v. Goldstein, 404 So.2d 1098 (Fla. 3d DCA 1981), which held: “For the purposes of garnishment a bank deposit prima facie belongs to the person in whose name it stands....” Id. at 1099 (quoting 38 C.J.S. Garnishment § 80 (1943)). Relying on this language, other district courts have held, “For garnishment purposes, funds on deposit in a financial institution are presumed to belong to the person or entity named on the account.” Green v. Dep’t of Revenue ex rel. Williams, 78 So.3d 555, 557 (Fla. 5th DCA 2011) (quoting Thomas J. Konrad & Assocs., Inc. v. McCoy, 705 So.2d 948 (Fla. 1st DCA 1998)). Not only did the account documents show that the account belonged to Amy, BB & T did not produce any evidence to rebut this presumption.

BB & T mainly claims that Joseph may have had some equitable interest in the funds or that a fraudulent transfer has occurred which could have been derived from Joseph’s funds. It argues that to obtain summary judgment, Amy must prove both her legal ownership of the funds as well as conclusively refute any allegation that the funds in her account may have been the result of a fraudulent transfer. Although it has been held that a garnishor may use garnishment to obtain funds fraudulently transferred to a third party, it is the garnishor’s burden to prove that the property garnished was the property of the debtor. Nat’l Car Rental Sys., Inc. v. Bruce A. Ryals Enters., Inc., 380 So.2d 529, 530 (Fla. 5th DCA 1980).

Amy moved for summary judgment and produced evidence showing her sole title to the account. She and Joseph also testified that the transfers BB & T questioned were either proceeds from two named rental properties they held as tenancies by the entireties or proceeds from investments owned solely by Amy. Thus, they did present evidence of the source of the funds. BB & T came forth with no evidence to show that a genuine issue exists that Joseph solely owned funds which were transferred into Amy’s account.

Assuming, without deciding, that Amy had the obligation on summary judgment to refute BB & T’s unpled claim that the monies in the account equitably belonged to Joseph or were the subject of a fraudulent transfer, Amy met that burden.

A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once [the movant] tenders competent evidence to support [the] motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.

Landers v. Milton, 370 So.2d 368, 370 (Fla.1979). Amy and Joseph both testified that the funds in the 8070 account came from income generated from Amy and Joseph’s rental properties, held as tenancies by the entirety. Funds owned by a husband and wife as tenants by the entireties are “beyond the reach of a creditor of either one of the tenants. Such funds are immune from garnishment except where the debt was incurred by both spouses.” Antuna v. Dawson, 459 So.2d 1114, 1116— 17 (Fla. 4th DCA 1984); see also Beal Bank, 780 So.2d at 53. Therefore, as those funds were deposited into Amy’s account, they never became the solely owned property of Joseph and thus would not be subject to garnishment for his debts.

Because Amy submitted evidence to support her motion for summary judgment, BB & T was required to come forward with evidence to reveal a genuine issue of fact as the ownership of funds. It had to submit something to show Joseph’s sole ownership of the funds transferred into Amy’s account, which would suggest a fraudulent transfer, or his equitable ownership in such funds. All BB & T points to is some confusion in the testimony of Joseph and Amy, including Amy’s lack of knowledge about the specifics of some of the transfers. None of these discrepancies amount to either Amy or Joseph making conflicting statements as to the source of the funds. They testified consistently that the sources were their two rental properties held as tenants by the entirety or Amy’s individual investments. BB & T has not presented any counterevidence to show that a genuine issue exists and that the funds come from Joseph’s solely owned assets. Suspicion does not constitute evidence.

The cases cited by BB & T are distinguishable, as in those cases the judgment creditor provided evidence that the funds in the joint account came from a source solely in control of the judgment debtor. For instance, in Ellis Sarasota Bank and Trust Co. v. Nevins, 409 So.2d 178 (Fla. 2d DCA 1982), the judgment creditor garnished an account held as tenants by the entirety between the judgment debtor and his wife. The evidence was undisputed, however, that the funds in the account came from the husband’s salary and therefore were his own, individual funds. Id. at 179. The disputed issue of fact was the intent of the parties in setting up the account after the judgment against the husband. Id. at 180.

Similarly, in Thomas J. Konrad and Associates, Inc. v. McCoy, 705 So.2d 948 (Fla. 1st DCA 1998), the creditor obtained a judgment against the debtor and garnished a joint account. In response to a motion to dissolve the writ of garnishment, the creditor responded that the funds in the account had been received by the debt- or in satisfaction of a debt due to the debtor alone. The intent in depositing those funds in a joint account was to put them beyond the reach of the debtor’s judgment creditor. Id. at 949. Thus, the creditor had identified a source of funds owned solely by the judgment debtor.

In this ease, in contrast, BB & T has not alleged or identified any source of funds which were solely the property of the judgment debtor, as the creditors did in Konrad and Ellis. It notes that at one time Joseph owned a lot of corporations, but it never tied them to any monies available at the time the 8070 account was opened. If BB & T simply had stated in a pleading that the account may have been funded from other sources owned by Joseph alone, it would be legally insufficient to assert a fraudulent transfer. Cf. Green, 78 So.3d at 558. We conclude that the trial court did not err in entering summary judgment for Amy.

We note, however, that while this case was on appeal from the non-final order dissolving the writ of garnishment, the trial court entered a final judgment in Amy’s favor. The court was without jurisdiction to do so. See Fla. R. App. P. 9.130(f); Gareia-Lawson v. Lawson, 82 So.3d 137, 137 (Fla. 4th DCA 2012) (“[A] trial court lacks jurisdiction to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity.”). On remand, the court is directed to reenter the final judgment, as the non-final appeal of the order dissolving the garnishment writ has been resolved by this opinion.

Affirmed.

STEVENSON and GERBER, JJ„ concur.

      . In Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 59 (Fla.2001), the supreme court expressed doubt that the garnishment action in that case was the appropriate means for a creditor to challenge fraudulent transfers, noting, "Concerns such as preventing fraud on creditors or fraudulent transfers ... are more properly addressed by those statutes that prevent fraudulent transfers; for example, the Uniform Fraudulent Transfer Act, found in chapter 726 of the Florida Statutes. See §§ 726.101-.201, Fla. Stat. (2000).” Id. In this case, BB & T has already filed such an action against Amy and Joseph.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ruben Danyon McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5320.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Rehearing Denied Nov. 26, 2014.

      James T. Miller, Jacksonville, and Deana K. Marshall, Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General,' Jennifer J. Moore, Assistant Attorney General, and Wesley Cross Paxson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Ruben McCloud challenges his conviction and sentence on two counts of attempted second-degree murder and one count of shooting or throwing a deadly missile. We find merit to one of his claims and reverse for a new trial.

We agree with Appellant that after the motion to disqualify the trial judge was granted (see Fla. R. Jud. Admin. 2.330), the successor judge who did not conduct the trial could not competently rule on Appellant’s motion for a new trial because it required weighing the credibility of witnesses and competing witness testimony to resolve conflicts in the evidence. See Colson v. State, 75 So.3d 306, 307 (Fla. 1st DCA 2011). “Defendants have the right to have the trial judge evaluate and weigh the evidence independently of the jury’s findings to determine whether the jury verdict was contrary to the weight of the evidence.” Kelley v. State, 16 So.3d 196, 197 (Fla. 1st DCA 2009) (internal quotation marks and citation omitted).

In this case, the State’s evidence identifying Appellant as the shooter was based solely on the identification made by the two victims. But Appellant put on an alibi defense with multiple witnesses claiming that he was at home miles away at the time of the shooting and could not have been the shooter. Appellant’s conviction depended entirely upon the jury’s resolution of conflicts in the evidence and the relative credibility of the witnesses. Under these circumstances, a successor judge, who was not present at trial, could not competently assess the weight of the evidence as required to resolve Appellant’s motion for new trial. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


text:
    PANZER LAW, P.A., Appellant, v. PALM BEACH COUNTY SCHOOL DISTRICT and Fara, A York Risk Services Company, Appellees.
    No. 1D14-0908.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Rehearing Denied Nov. 25, 2014.

      Bill McCabe, Longwood, and Gilbert R. Panzer, Jr., Boca Raton, for Appellant.
    Hinda Klein and Elizabeth Ann Izquier-do of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation matter, we have for review an order of the Judge of Compensation Claims (JCC) denying Appellant, Claimant’s former attorney (Panzer), entitlement to an attorney’s fee based on the failure of the relevant petition for benefits (PFB) to meet the requirements of section 440.192, Florida Statutes (2006). Because the JCC erred by failing to give full effect to all of the provisions of section 440.192, we reverse and remand for further proceedings.

Because the facts are not in dispute, our review is de novo. See Airey v. Wal-Mart, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009) (noting that when “[t]he pertinent facts are undisputed ... the issue is one purely of law, subject to de novo review”). In addition, because resolution of this appeal requires statutory interpretation, our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004).

Panzer filed a PFB on behalf of his client seeking, in relevant part, authorization of a second opinion with a shoulder surgeon. At the time the PFB was filed, Claimant was under the care of Dr. Kolet-tis, an orthopedic surgeon authorized by the Employer/Carrier (E/C) to treat Claimant’s right shoulder injury. It is not disputed that Claimant did not attach to this PFB a written recommendation from Dr. Kolettis for such a referral. Nor is it disputed that the E/C did not file a motion to dismiss the PFB based on a lack of specificity, or answer the petition within 30 days. See, e.g., Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997) (“In practical effect, ... failure to respond to the petition for benefits ... operated not as an admission of compensability but as a denial of every allegation [and demand for benefits] in the petition for benefits.”).

Under the version extant both in 2006 and in 2008, section 440.34 provided “that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer: ... [i]n any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition,” § 440.34(3)(b), Fla. Stat., while section 440.192, Florida Statutes (2006 and 2008), provided in part:

(1) Any employee may, for any benefit that is ripe, due, and owing, file ... a[PFB] which meets the requirements of this section and the definition of specificity in s. 440.02_
(2) Upon receipt, the Office of the Judges of Compensation Claims shall review each petition and shall dismiss each petition or any portion of such a petition that does not on its face specifically identify or itemize the following:
(i) The type or nature or treatment care or attendance sought and the justification for such treatment. If the employee is under the care of a physician for any injury identified under paragraph (c), a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition.
The dismissal of any petition or portion of such a petition under this section is without prejudice and does not require a hearing.
(3) A [PFB] may contain a claim for past benefits and continuing benefits in any benefit category, but is limited to those in default and ripe, due, and owing on the date the petition is filed....
(5) All motions to dismiss must state with particularity the basis for the motion .... Any grounds for dismissal for lack of specificity under this section which are not asserted within 30 days after receipt of the [PFB] are thereby waived.
(7) Notwithstanding the provisions of s. 440.34, a[JCC] may not award attorney’s fees payable by the carrier for services expended or costs incurred prior to the filing of a petition that does not meet the requirements of this section.

§ 440.192, Fla. Stat. Rather than litigate in the main proceeding any issue concerning the claimant’s entitlement to a second opinion, the employer and carrier eventually authorized the benefit, albeit approximately a year after the request was made. At least for fee purposes, this capitulation established, if not that the benefit requested was ripe, due and owing at the time that the petition for benefits was filed, then at a minimum that “the injured employee ha[d] employed an attorney in the successful prosecution of the petition.” § 440.34(3)(b), Fla. Stat. (2006 and 2008).

Whenever a “physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition,” § 440.192(2)(i), Fla. Stat., the requirement that the claimed benefits be “ripe, due, and owing” is inextricably intertwined with the subsection 440.192(2) specificity requirement. For that reason, we have held that the E/C’s failure to file a motion to dismiss the PFB for lack of specificity when the physician’s recommendation is not attached resulted in a waiver of any entitlement to challenge the ripeness of the claimed benefit in the fee hearing. See Straw v. Steve Moore Chevrolet, 651 So.2d 708, 709 (Fla. 1st DCA 1995) (reversing denial of E/C-paid attorney’s fee where E/C failed to move to dismiss claim, which likely failed to comply with specificity requirements, but instead responded to it and litigated it to resolution). The Straw panel agreed with Mr. Straw’s argument that Steve Moore Chevrolet “waived its right to raise the lack of specificity defense at the fee hearing because of the failure of the [E/C] to move for dismissal of the claim.” Id. at 711. The Court further noted that “[i]f the [E/C] do not move to dismiss and the claim proceeds on the merits, it must be assumed that the claim sufficiently puts the [E/C] on ‘notice’ of the benefits sought by the claimant to make an informed decision with respect to the claim.” Id. at 712.

In the present case, too, an attachment would both have established ripeness and satisfied the specificity requirement, and the E/C’s failure to object to the absence should be deemed a waiver of both legal defenses. Our conclusion in this regard is buttressed by the Legislature’s adding to section 440.192 the language now found in subsection (5), when section 440.192 was first enacted in 1993 — “Any grounds for dismissal for lack of specificity under this section which are not asserted within 30 days after receipt of the [PFB] are thereby waived.” § 440.192(5), Fla. Stat.

Plainly “ripeness” and “specificity” will not be the same in every case. Here, however, where section 440.192(2)(i) required that a copy of the request or recommendation be attached to the PFB in order to meet the specificity requirement, that same attachment would have established the ripeness of the PFB. Thus, because the E/C failed to move to dismiss the PFB in a timely manner, the JCC erred in failing to give effect to the waiver provision of section 440.192(5).

Accordingly, we REVERSE and REMAND this matter for proceedings consistent with this opinion.

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

      . We note that the relevant statute in Straw was the 1991 version of the Workers’ Compensation Law and the statutory citations were to section 440.19, not 440.192. A comparison of the two subsections reveals, however, that the relevant provisions are essentially identical. Section 440.192 first appeared in chapter 440 in 1993, moving the provisions relating to the “Procedure for Resolving Benefit Disputes” from section 440.19 to section 440.192. See Ch. 93-415, § 25, at 137, Laws of Fla.


text:
    Herman GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2082.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Rehearing Denied Nov. 24, 2014.
    Herman Green, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm, without further discussion, the denial of grounds one through four of the appellant’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). However, we reverse and remand the denial of ground five for the trial court to strike the $699.05 fine imposed pursuant to section 775.083, Florida Statutes, and the related surcharge of $34.95. See Willits v. State, 884 So.2d 73, 74 (Fla. 2d DCA 2004). The appellant need not be present when the fine is stricken. Id.

Affirmed in part, reversed and remanded in part, with directions.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: CONNER, J.

text:
    Brian M. BEAUCHAMP, Appellant, v. The BANK OF NEW YORK, Trust Company, N.A., as Successor to JP Morgan Chase Bank, N.A. as Trustee, Appellee.
    No. 4D13-3841.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing En Banc Denied Dec. 12, 2014.
    Robert P. Summers of McCarthy, Summers, Bobko, Wood, Norman, Bass & Mel-by, P.A., Stuart, for appellant.
    Marc James Ayers of Bradley, Arant, Boult, Cummings, LLP, Alabama, for ap-pellee.
   CONNER, J.

Brian Beauchamp appeals the trial court’s final judgment of foreclosure in favor of the Bank of New York (“the Bank”). Although Beauchamp lodges several challenges to the final judgment, we find merit in only one of his arguments. Beauchamp argues that the trial court erred in admitting hearsay testimony as to the amount of debt owed under the note in connection with the contents of a business record without having the business record admitted into evidence. Without inadmissible hearsay, Beauchamp asserts that there was no evidence to establish the amount due on the note. We agree and reverse for further proceedings.

The mortgage was executed by Beau-champ and Lois Taylor in 2002. The note was executed only by Lois Taylor, who subsequently passed away. In 2007, the Bank initiated a foreclosure action against Beauchamp and the matter proceeded to a non-jury trial in 2012.

At the conclusion of the Bank’s case, Beauchamp moved for an involuntary dismissal, arguing that there was no evidence as to the amount of debt owed on the note. The trial court permitted the Bank to reopen its case in order to provide such evidence. The Bank presented testimony from a representative of GMAC Mortgage, the servicer of the loan. The witness testified about the amount due under the note over the objection of Beauchamp’s counsel, who argued that the testimony was inadmissible hearsay because the testimony concerned the contents of business records which had not been introduced into evidence. The trial court overruled the objection and, at the conclusion of the case, entered final judgment of foreclosure in favor of the Bank.

On rehearing, the Bank conceded that the trial court erred in admitting hearsay testimony as to the amount of damages in connection with the contents of a business record without having the business record admitted into evidence. However, the parties disagreed as to what the court should do about the error. Beauchamp argued that the case should be dismissed, while the Bank asserted that the court could remand for further proceedings to properly establish the amount due under the note. Alternatively, the Bank maintained that because Beauchamp had not signed the note and was therefore not liable for any money damages, the appropriate course of action would be to allow the foreclosure to proceed without further evidentiary proceedings, because the proceeding was in rem as to Beauchamp. Apparently agreeing with the alternative argument, the trial court stated that it was “sitting in the court of equity” and denied Beauchamp’s motion for involuntary dismissal.

On appeal, the Bank argues that even if the trial court erred in permitting hearsay testimony regarding the amount due under the note, such error was harmless and is not grounds for a new trial unless a sub-stantiál right of a party was adversely affected. See Bulkmatic Transp. Co. v. Taylor, 860 So.2d 436, 447-48 (Fla. 1st DCA 2003); § 90.104(1), Fla. Stat. (2013). The Bank reasons that because Beau-champ did not sign the note, he is not hable for paying any money judgment, and as such, the error did not adversely affect Beauchamp’s substantial rights.

We agree with Beauchamp that the erroneous admission of the hearsay testimony as to damages was not made harmless by virtue of Beauchamp’s non-liability for payment of the note. While Beauchamp would not be responsible for any deficiency that remained after the sale of the property, he did sign the mortgage, and the final judgment would foreclose his ownership rights by a judicial sale. As the mortgagor, Beauchamp has a right of redemption wherein he may prevent divestiture of his legal title upon payment of the amount of the debt specified in the judgment. CCC Props., Inc. v. Kane, 582 So.2d 159, 161 (Fla. 4th DCA 1991); § 45.0315, Fla. Stat. (2013). Therefore, even though Beau-champ is not personally liable for the debt, the amount of the debt owed is important as it relates to Beauchamp’s right of redemption, specifically as to the amount due under the judgment in order to exercise his right to stop the foreclosure sale.

Thus, the Bank’s failure to provide admissible evidence that would establish the proper amount due on the note was not harmless error. Rather, proof of the amount of debt owed was required to allow the foreclosure, and Beauchamp’s ownership rights and right of redemption are substantive rights that were adversely affected by the error.

We affirm the judgment of foreclosure, except as to the amount due under the note, and remand the case for further proceedings to determine that amount. See Sas v. Fed. Nat’l. Mortg. Ass’n, 112 So.3d 778 (Fla. 2d DCA 2013) (affirming final judgment, but reversing and remanding for further proceedings to determine the amount of the debt owed where testimony from Fannie Mae’s representative regarding the amount of the debt was inadmissible hearsay because the representative testified about business records that were not submitted into evidence).

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

LEVINE and KLINGENSMITH, JJ., concur.

      . Section 45.0315 provides that:
      At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment,
      order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.
      § 45.0315, Fla. Stat. (2013) (emphasis added).

      . We recognize that a different conclusion was reached in Wolkoff v. American Home Mortgage Servicing, Inc., No. 2D 12-6460,-So.3d-, 2014 WL 2378662 (Fla. 2d DCA May 30, 2014), where the Second District reversed the trial court’s final judgment of foreclosure and dismissed the case because the plaintiff mortgage company "failed to satisfy its burden to prove the amount of debt owed.” Id. at -, at *3. In that case, a representative of the plaintiff mortgage company "merely confirmed that the totals given to him on a proposed final judgment 'seemed accurate’; he never openly recited the total amount of indebtedness, nor did [plaintiff's counsel] ask him to.” Id. at-, at *1. The court in Wolkoff distinguished Sas on the ground that in Sas, the plaintiff "submitted evidence of the amount of indebtedness through witness testimony,” although that testimony was inadmissible hearsay, unlike the plaintiff in Wolkoff, who failed to offer any evidence at all — whether admissible or not.
      The facts of the instant case are more similar to Sas than Wolkoff because here, like the plaintiff in Sas, the Bank established the amount of indebtedness through witness.testimony, even though that testimony concededly was inadmissible hearsay. This is unlike Wol-koff, where the plaintiff failed to produce any evidence, admissible or not, supporting the amount of indebtedness.


author: BLACK, Judge.

text:
    Vito Paul CITO, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4656.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2014.
    Rehearing Denied Dec. 10, 2014.
    Howard L. Dimmig, II, Public Defender, and Tim Bower Rodriguez, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Vito Cito challenges his judgments and sentences for two counts of aggravated assault (counts III and IV) and one count of discharging a firearm from a vehicle within 1000 feet of a person (count V). Cito argues, and the State concedes, that the court imposed an illegal sentence on count V. We agree and reverse. We affirm the remaining issues raised on appeal without comment.

Cito was convicted of discharging a firearm from a vehicle within 1000 feet of a person, á second-degree felony. See § 790.15(2), Fla. Stat. (2006). The offense is punishable by up to fifteen years’ imprisonment. See § 775.082(3)(c), Fla. Stat. (2006). However, the trial court imposed a twenty-year sentence for this offense; this sentence is illegal. Therefore, we remand for resentencing as to this count.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and KELLY, JJ., Concur.


text:
    John Fitzgerald HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1479.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.
    Rehearing Denied Nov. 18, 2014.
    John F. Henderson, Sr., Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, John Fitzgerald Henderson, appeals the order denying his motion for postconviction relief in Orange County case number 2004-CF-12588-A. The order being appealed was rendered on April 4, 2014, and the Notice of Appeal was filed pursuant to the mailbox rule on April 21, 2014; the appeal is therefore timely. Based on the fact that the trial court incorrectly determined Appellant’s postconviction motion was untimely and the State’s concession of error, reversal is required. However, reversal is warranted only for consideration of those claims collaterally attacking Appellant’s 2008 violation of probation case. Any claims related to the original 2005 trial were correctly denied as procedurally barred. Moreover, the claim alleging newly discovered evidence was also properly denied.

Accordingly, we reverse that part of the order relating to the 2008 violation of probation case and remand this case to the trial court to properly consider claims relating to that case. Otherwise, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA, LAWSON, and COHEN, JJ., concur.


author: CIKLIN, J.

text:
    Eddie Vincent RUTLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5022.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 5, 2014.

      Jacob M. Noble of Noble Law, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, Eddie Rutledge, timely appeals his convictions and sentences for first-degree murder and conspiracy to commit murder.. Within a reasonable period of time of becoming aware of it, Rutledge’s court appointed attorney, Carey Haughwout, put the trial court on notice that she suspected the State Attorney’s Office was investigating her for witness tampering. The court erred when it denied Haughwout’s request that it conduct an inquiry into the potential conflict and the record does not indicate that Rutledge executed a waiver. Because Rutledge’s Sixth Amendment right to counsel was violated, we have little choice but to reverse and remand for a new trial.

Rutledge argues that his right to the assistance of an attorney was violated when Haughwout continued to represent him despite the fact that she was being investigated by the state for witness tampering in connection with the prosecution of Rutledge. Rutledge frames the error in two ways. First, he claims the court erred in failing to conduct a hearing or some type of meaningful inquiry on the potential ethical conflict and secondly argues ineffective assistance of counsel occurred as a result of Haughwout’s failure to withdraw.

Facts

Rutledge and Kenakil Gibson (“co-defendant”) were indicted for capital murder with a firearm (count I), conspiracy to commit first-degree murder (count II), and solicitation to commit first-degree murder (count III).

The state alleged that Rutledge and the co-defendant killed the victim, George Mannerino, on the day before the victim was scheduled to testify against them in an unrelated burglary trial. According to the state, Mannerino witnessed Rutledge and the co-defendant attempt to break into and commit a burglary in the Palm Beach Gardens home of Mannerino’s neighbor. Because of Mannerino’s decision to become involved and report the criminal act, Rutledge and the co-defendant were investigated by law enforcement officials, which ultimately led to both being charged with burglary. The day before Mannerino was set to testify in the burglary trial, he was shot dead in front of his house by someone traveling in a car.

The state additionally alleged that shortly after the murder of Mr. Mannerino, Rutledge made an unexpected visit to his longtime acquaintance, Dr. Paul Inkeles, and attempted to persuade Inkeles to provide a false alibi for him.' Rutledge allegedly gave Inkeles several hundred dollars’ worth of heroin, which Inkeles believed was offered to induce his false testimony. When law enforcement officials initially interviewed Inkeles, he said Rutledge was with him at the time of the victim’s murder although he later recanted that version of events. At the point in time leading to Rutledge’s trial, Inkeles had a pending case in Broward County for DUI manslaughter and vehicular homicide.

During the pre-trial period, the state subpoenaed attorney Steven Swickle, who represented Inkeles in the Broward County DUI prosecution. Swickle moved to quash the subpoena and his motion was taken up in an August 24, 2010 pretrial hearing related to Rutledge’s case. During the hearing on the motion to quash, the Rutledge prosecutor, Andrew Slater, explained to the court that he wanted to ask Swickle “about conversations that he had with somebody besides his client.” Slater stated that the subpoena was an ■ “investigative” subpoena related to “potential criminal charges separate and apart from those facing [Rutledge].” It was at this juncture that Haughwout announced it was her understanding from Slater’s statements that “apparently they’re investigating me and whether I intimidated a witness ..., so if we’re going down these roads, you know, I’d say tread carefully .... “ The trial court denied Swickle’s motion to quash the subpoena.

Two days later on August 26, Haughw-out then filed her own motion to quash the state’s subpoena of attorney Swickle, which alleged the following. Inkeles was represented by Swickle on the unrelated Broward DUI charge. Haughwout spoke to Inkeles with Swickle’s permission and, after Haughwout’s conversation with Ink-eles, the state subpoenaed attorney Swick-le without notice to Haughwout. Based on Slater’s statements at the August 24th hearing on Swickle’s motion to quash, Haughwout believed the state sought to discover the contents of her conversation with Inkeles, which she argued in her motion to quash, was protected by work product. The trial court summarily denied Haughwout’s motion to quash, without comment.

On August 31, 2010, Haughwout further moved to disqualify the State Attorney’s Office or alternatively exclude Inkeles as a state witness in the prosecution of Rutledge. Haughwout also filed a motion captioned, “Motion to Disclose Alleged Criminal Investigation” in which Haughwout put the court on notice that a conflict of interest between Haughwout and her client, Rutledge, might have been created based on the state’s apparent investigation into Haughwout’s contact with Dr. Inkeles. In her motion, Haughwout explained that she had obtained a transcript of an apparent investigative statement Inkeles gave in response to an “inquir[y] into [Haughwout’s] efforts on behalf of [Rutledge].” Haughw-out expressed uncertainty as to whether the state was in fact investigating her, and she stated that “[Rutledge] believe[d] this investigation [was] a ruse, conducted in order to interfere in his right to counsel,” but “he [was] entitled to know whether in fact there is or was such an investigation and the details of said investigation.”

The state filed a response to the motions filed by Haughwout. According to the state, Haughwout told attorney Swickle that she would cross-examine Inkeles about his pending DUI manslaughter if Inkeles took the stand in the state’s prosecution against Rutledge. Swickle then, according to the state, told Slater his client would therefore exercise his right not to testify. According to Slater, the state had become aware of “serious and credible allegations that [Haughwout] engaged in misconduct by threat or intimidation toward state witness ... Inkeles,” and it had a “good faith basis for investigating these allegations, [which were] directly brought to [the state’s] attention by attorney Swickle, strongly suggesting potential misconduct by defense counsel with a material State witness in a capital case.”

As to the defense motion to disqualify the State Attorney’s Office in its prosecution of Rutledge, the state argued that disqualification was not necessary, as it had withdrawn its subpoena and suspended its investigation of Haughwout. The state conceded, however, that if the investigation was reinstated at some point, another Florida state attorney’s office should assume control of the matter, because of the “institutional and ongoing relationship between the [15th Judicial Circuit’s] Public Defender’s Office and the State Attorney’s Office.”

On the morning of jury selection at Rutledge’s September 1st trial, Haughwout reminded the court about the pending motions to disqualify the state and to require the state to disclose whether it was conducting a criminal investigation against Haughwout:

MS. HAUGHWOUT: Okay. And, Judge, I just — there are some other matters. We have filed a motion to disqualify the State attorney’s office and requested an evidentiary hearing based on that. We have also filed a motion to disclose the details of the State’s allegation of criminal activity and essentially that is Mr. Rutledge’s right to know if the Court remembers last week that the State was in here on a subpoena saying they were conducting an independent criminal investigation of somebody else and essentially what we’ve learned — and I’m not going to argue the motion, the details at this point — is that that investigation involves me, and it is our position that Mr. Rutledge is entitled to the details of that investigation to determine whether there is a conflict in our representation of him given — it is the same prosecuting authority that is prosecuting him as is engaged in a supposed criminal investigation of his lawyer, so.
THE COURT: Does this have to do with Dr. Inkeles?
MS. HAUGHWOUT: Yes
THE COURT: Well, your motions are denied on that without any evidentiary hearing. We don’t need an evidentia-ry hearing, I’ve read the motion so they’re denied. What’s next?
⅜ * *
MS. HAUGHWOUT: And this morning we filed a motion to disclose the details of this alleged investigation, and the law is pretty clear that it can constitute a conflict of interest for a person accused of a crime to have a lawyer who is under investigation.
THE COURT: I don’t think anybody has accused you of a crime.
MS. HAUGHWOUT: In fact, that is exactly what has occurred, and that is what was alleged by the State last week in the motion, and we have the transcript of that where we allege they were investigating a separate criminal investigation, and that as I learned and then as we saw from the interview with [Dr.] Inkeles, it clearly relates to me and my questioning of Dr. Inkeles. The State’s response that they filed this morning makes that abundantly clear that that is the investigation.
THE COURT: Look, look, look, it is commonplace for lawyers to ask witnesses, did you talk with the other attorney, the State attorney? Yes. What did you say to him? What did he say to you; that’s usually the Defense during that questioning. Nobody says there’s a conflict of interest that somebody violated the law, and that sort of happened here in reverse when this witness sort of changed his mind, decided he wasn’t going to talk, through the advice of his lawyer, so that we’re making a problem out of a little mole hill.

The trial proceeded unabatedly and the jury eventually returned guilty verdicts' on the charges of first-degree murder and conspiracy to commit murder and not guilty of solicitation to commit first-degree murder.

Rutledge appeals, arguing a violation of his Sixth Amendment Right to Counsel. He asserts that upon Haughwout’s notification and request for hearing, the trial-court was required to permit an inquiry to determine whether a conflict of interest existed. We agree.

Analysis

Guiding Principles

In Lee v. State, 690 So.2d 664 (Fla. 1st DCA 1997), the First District set forth the guiding principles governing pretrial disclosures of potential conflicts of interest:

Implicit in the Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). An actual conflict of interest can impair the performance of a lawyer and ultimately result in a finding that the defendant did not receive the effective assistance of counsel. Cuyler v. Sullivan, . 446 U.S. 335, 345, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980); see also Holloway v. .Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426, 434 (1978). When defense counsel makes a pretrial disclosure of a possible conflict of interest with the defendant, the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant’s right to the effective assistance of counsel or appoint separate counsel.

Id. at 667.

Waiver by Defendant of Potential Conflict

A defendant’s fundamental right to conflict-free counsel can be waived:

A defendant may waive this right by choosing to proceed to trial with an attorney who has an adverse conflict of interest. United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). “Thus, even though the right to competent counsel is ‘fundamental,’ [footnote omitted], it may nonetheless be waived.” Id. A determination that defendants have waived the right to conflict-free counsel disposes of the need to evaluate the actual or potential ineffectiveness • of counsel caused by the alleged conflicts of interest. Id. at 277. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Id. at 277 n. 5, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,1023, 82 L.Ed. 1461,1466 (1938).
A defendant’s waiver must be established by “ ‘clear, unequivocal, and unambiguous language.’ ” Id. at 278. The record should show, in some way, that the defendant was aware of the conflict of interest; realized the conflict could affect the defense; and knew of the right to obtain other counsel. See United States v. Petz, 764 F.2d 1390,1393-94 (11th Cir.1985); Garcia, 517 F.2d at 278 (describing procedure to obtain waiver). Although the court should try to elicit narrative replies, “[m]ere assent in response to a series of questions from the bench” may in some cases constitute adequate waiver. Id.

U.S. v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993).

The record before us clearly indicates that there was no waiver by Rutledge in any manner. He was not questioned by anyone in the courtroom nor given any opportunity to consider his options. Other than the same rumor his attorney, Ms. Haughwout, apparently heard, the cold record establishes that Rutledge was not provided with the pertinent information to which he was fundamentally entitled. It is axiomatic that Rutledge could not make an informed decision on the issue of waiver without first receiving relevant details and being otherwise informed.

Harmless Eitov

The state urges us to apply a harmless error analysis; something which we simply are unable to do. If an allegation of potential conflict is made, a hearing or some type of questioning or discussion is mandatory. If the trial court fails to make the inquiry or other equivalent probe, an appellate court’s harmless error analysis would be virtually impossible to perform because “ ‘any action the lawyer refrained from taking because of the conflict would not be apparent from the record.’ ” Hannah v. State, 42 So.3d 951, 955 (Fla. 4th DCA 2010) (quoting Thomas v. State, 785 So.2d 626, 629 (Fla. 2d DCA 2001)). See also Lee, 690 So.2d at 669 (recognizing that where there is an alleged conflict of interest between a lawyer and client, trial court’s inadequate inquiry cannot be treated as harmless error). With respect to certain types of ethical conflicts, the United States Supreme Court has opined that “reversal is automatic”:

[T]he assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, [386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ]. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).

Holloway, 435 U.S. at 489, 98 S.Ct. 1173.

Possible Manifestations of Ethical Conflicts

[ll] It is certainly not our intent to overstate the potential consequences of a failure to act in situations such as the one before us. Nonetheless, there is a fairly significant number of viable scenarios which underscore the urgency of the matter and cry out the need for trial courts to take substantive action when this type of potential conflict is brought to the trial court’s attention. In United States v. McLain, 823 F.2d 1457 (11th Cir.1987), overruled on other grounds as recognized in U.S. v. Watson, 866 F.2d 381, 385 n. 3 (11th Cir.1989), the Eleventh Circuit, in a somewhat similar fact pattern, mused about the competency of a defense lawyer’s representation of his or her client when faced with their own criminal prosecution:

Although [defense lawyer] Johnson testified that he was not worried about the investigation, his client, having hired Johnson for his sterling reputation would have reacted differently. Furthermore, the increased intensity of the government’s investigation of Johnson’s records should have convinced him of the seriousness of his situation and the conflict between his desires to aide his client and save himself.

Id. at 1464. Even though McLain found a presumptive actual conflict and while it can be fairly argued that the ramifications of similar hypothetical scenarios are remote, trial courts must intercede. Appellate tribunals must necessarily rely on the trial court to flesh out the details of potential ethical conflicts between counsel and their clients and thus an inquiry is mandatory. The sanctity of the Sixth Amendment depends upon it.

Haughwout put the trial court on notice that it appeared she was being investigated by the state for attempting to intimidate or otherwise tamper with a state witness in the state’s prosecution of Rutledge. Clearly, this was sufficient to trigger an immediate alarm on the part of everyone in the courtroom and the certain need for a meaningful on-the-record discussion. Unfortunately, the court essentially disregarded the matter, finding, without any substantive inquiry, that Haughwout was making a “problem out of a little mole hill.”

The McLain court partially relied upon and therefore quoted a most basic tenet of the Model Code: “[A] lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable possibility that they will, affect adversely the advice to be given or services to be rendered the prospective client.” Id. at 1463 (emphasis in original) (quoting Model Code Of Prof 1 Responsibility EC 5-2 (1987)).

The professional responsibilities of attorneys licensed by the Florida Bar are similarly stringent under the Rules Regulating the Florida Bar. While the rules do not directly address the situation at issue here, the comment to Rule 4-1.7, which governs conflicts of interest involving current clients, provides pertinent language which bears repeating:

Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person, or from the lawyer’s own interests.
R. Regulating Fla. Bar 4-1.7 (2014).

Before us on appeal, the state urges that there was no evidence' of an actual conflict, suggesting that because it had “suspended” the criminal investigation of Haughw-out, any potential ethical conflict between Haughwout and her client was thereby summarily extinguished. Apparently envisioning the possibility of renewing the Haughwout investigation, however, the state suggested that if the investigation was recommenced, the matter would necessarily be transferred to a different prosecutor’s office within the state.

Conclusion

Whether the investigation was suspended or not and whether a renewal of such an investigation was possible or not and whether an actual conflict existed or not, the proceedings below should have taken a detour. Once Haughwout’s ethical responsibilities as to her representation of Rutledge were called into question, the trial court was required to take affirmative action to ferret out the facts underlying the potential conflict. And, of course, it matters not if the state attorney or even the defense attorney herself believed no (perceived or actual) conflict of interest existed. See Forsett v. State, 790 So.2d 474, 474-75 (Fla. 2d DCA 2001) (granting new trial where defense counsel informed court he had represented a state witness but opined he did not believe it created a conflict of interest, and trial court did not conduct inquiry or obtain a waiver from defendant).

At the risk of being redundant, we once again emphatically state that when a pretrial disclosure of a possible conflict of interest is raised, “the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant’s [Sixth Amendment right] or appoint separate counsel.” Lee, 690 So.2d at 667 (citing Holloway, 435 U.S. at 484, 98 S.Ct. 1173).

The remainder of claims raised by Rutledge are without merit and we thus decline further comment.

Reversed and remanded for a new trial

STEVENSON and FORST, JJ., concur.


author: MAY, J.

text:
    Ricardo CASCO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-611.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.

      Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his convictions for racketeering, conspiracy to commit racketeering, aggravated assault with a firearm, three counts of robbery with a firearm, four counts of kidnapping with a firearm, and his sentences for those crimes. He claims the trial court erred in: (1) admitting evidence of unrelated firearms; (2) denying the motion for judgment of acquittal oh the kidnapping charges; and (3) instructing the jury on uncharged predicate offenses. We find no error and affirm.

The State charged the defendant and three others with multiple crimes, alleging that they conspired to commit and committed multiple store robberies from January 1, 2008 until March 20, 2008. The State specifically charged this defendant with the robberies on February 7 and 21, 2008. The predicate offenses for the racketeering charges were the February 7 and 21 and March 11 robberies. The State did not charge the defendant with the March 11 robbery because it occurred outside the court’s jurisdiction. The case proceeded to a jury trial.

The jury found the defendant guilty and the trial court adjudicated so on all counts. The trial court sentenced the defendant at a subsequent hearing. The defendant now appeals.

He first argues the trial court erred in admitting evidence of firearms found in a car occupied by the defendant at the time of his arrest. He suggests the guns were irrelevant and inadmissible because they were not connected to the charged crimes. We disagree.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). “[F]or evidence of a firearm to be admissible as relevant in a criminal trial, ‘the State must show a sufficient link between the weapon and the crime.’ ” Agatheas v. State, 77 So.3d 1232, 1236 (Fla.2011) (quoting Jackson 'v. State, 25 So.3d 518, 528 (Fla.2009)). However, “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2008).

In Council v. State, 691 So.2d 1192 (Fla. 4th DCA 1997), the defendant robbed a doctor’s office using a firearm. Id. at 1193. Three weeks later, the police found the defendant sleeping in a house, arrested him, and seized a gun they found in his bed. Id. at 1194. The trial court admitted the gun over the defendant’s relevancy objection. Id. We affirmed the admission of the firearm because there were “many similarities” between the witnesses’ descriptions of the firearm and the one seized. Id. at 1194-96. The firearm was relevant even though there was no testimony that it was the actual firearm used in the robbery. Id.

Here, the State sought to prove that the defendant was guilty of racketeering and conspiracy to commit racketeering. The firearms were found in a vehicle seen at the location of one of the robberies and in which the defendant was a passenger at the time of his arrest. The defendant’s DNA was found on one of the firearms; a co-defendant’s DNA was found on another. One of the victims testified that one of the firearms matched the description of one used in a robbery. Zip-ties, used to restrain the victims, were found under the seat with the firearms.

The firearms were relevant proof of the conspiracy and racketeering charges and were a “link in the chain of identification testimony.” Id. at 1195. We find Agatheas v. State, 77 So.3d 1232 (Fla.2011) and Green v. State, 27 So.3d 731 (Fla. 2d DCA 2010), relied on by the defendant, factually distinguishable.

The defendant next argues that the trial court erred in denying his motion for judgment of acquittal on the kidnapping with a firearm counts. “In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). He suggests that the State failed to prove that the confinement satisfied the test in Fai-son v. State, 426 So.2d 963 (Fla.1983). Once again, we disagree.

Recently, we affirmed his co-defendant’s conviction and sentence on this same issue. See Castro v. State, 122 So.3d 912 (Fla. 4th DCA 2013). In both Castro store robberies, the robbers tied the victims’ hands behind their backs and did not untie them when they left the stores. Id. at 914. Castro argued that his motion for judgment of acquittal should have been granted because his actions did not constitute a kidnapping. Id.

We held that the co-defendant’s “act of leaving the victims tied up constituted kidnapping. Although the victims were able to rise to their feet, they could not immediately summon help without having someone untie them.” Id. at 915. The victims’ confinement did not end with the robbery. Id. For this same reason, the trial court did not err in denying the defendant’s motion for judgment of acquittal in this case.

And last, the defendant argues the trial court committed fundamental error and violated his due process rights by instructing the jury on six predicate acts for the racketeering charge when the State charged the defendant with only two predicate offenses. The State responds that no fundamental error occurred because the court instructed the jury properly and the jury’s separate finding on each predicate offense ensured due process. We agree with the State. State v. Weaver, 957 So.2d 586 (Fla.2007) controls.

There, the defendant was charged with battery on a law enforcement officer. Id. at 586-87. The information charged the defendant with intentionally touching or striking an officer, and the State only presented evidence on that theory. Id. at 587, However, the trial court instructed the jury, without objection, on that theory and the alternative theory of felony battery by causing great bodily harm to another. Id. The defendant was convicted and appealed. Id. The Florida Supreme Court held that “[bjecause bodily harm was never at issue ..., and the State never argued or presented evidence of bodily harm, the trial court’s inclusion of the bodily harm element in the jury instructions did not rise to the level of fundamental error.” Id. at 589.

Here, the defendant was charged with the two predicate acts necessary to prove the racketeering charge. The trial court included both of the charged crimes on the general verdict form for the racketeering charge. The trial court also included a special interrogatory verdict for the non-charged crime that occurred outside the jurisdiction of the court. These three predicate acts were included in the jury instructions for the racketeering count along with three additional predicate acts for which the defendant was not charged. The jury convicted the defendant of all charged crimes.

Although the State offered evidence of the uncharged predicate acts due to the separate conspiracy count, it is not “impossible to know whether [the defendant] was convicted of the offense with which he was charged ... or an offense with which he was not charged.” Id. at 589 (alterations in original) (quoting Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001)). Because the trial court was careful to include interrogatories on the verdict form that corresponded to both the charged and uncharged predicate acts, it was clear that the jury found the defendant guilty of three predicate criminal acts when only two were necessary under section 895.02(4), Florida Statutes. There was no error, much less fundamental error.

For these reasons, we affirm.

Affirmed.

STEVENSON and LEVINE, JJ., concur.

      . Regarding the special interrogatory verdict form for Count I, the jury found that the Defendant committed Robbery on one victim, Kidnapping on two victims, and Aggravated Assault on one victim.


text:
    Ray Tremaine BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3148.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion for Rehearing

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion, and substitute the following opinion in its place.

Ray Tremaine Bennett appeals an order denying his motion to suppress evidence seized pursuant to a search warrant. He argues the warrant was invalid because the description of the place to be searched contained an incorrect address. Finding the warrant description was sufficient to allow the officers executing it to find the correct premises, when properly aided by an officer who had previously surveilled the premises, we affirm.

Appellant was charged with possession of a firearm or ammunition by a convicted felon and possession of cannabis. These items were seized in a search of his home, conducted pursuant to a search warrant. The warrant described the premises to be searched as follows:

100 Brooks Street, building Q, apartment 302, Ft. Pierce, Florida, in Saint Lucie County, known and described as follows,
To-wit: from the intersection of Okeechobee Road and McNeil Road, proceed north on McNeil Road to Brooks Street. Travel east on Brooks Street to Petals Road. Travel east on Petals Road to building Q. The building is located on the north side of the road. The building is a three-story CBS multifamily structure. The structure/building is beige/tan in color. The roof of the structure/building is pitched and red in color. Posted on the southwest side of the structure/building is the letter “Q” and below the numbers “100-314”. Posted on the front door of the residence are the numbers “302”;....

At the evidentiary hearing on appellant’s motion to suppress, it was established that the warrant’s description of the-premises to be searched was inaccurate in several ways. Appellant’s apartment was numbered 302 and was located in Building Q of the apartment complex, but the building’s address was 302 Petals Road, not 100 Brooks Street. The directions in the warrant, from the intersection of Okeechobee Road and McNeil Road, are also impossible to literally follow.

There was only one Building Q in the apartment complex and only one Apartment 302 in that building. There was an apartment building in the same complex on Brooks Street, but it was labeled Building F. Both Building F and Q, like all the buildings in the complex, were three-story, beige buildings with pitched red roofs.

Nevertheless, officers executing the search warrant searched the correct apartment in Building Q at 302 Petals Road. The officer who applied for the warrant, and who had surveilled the premises during a controlled drug buy, accompanied them and directed them to the correct apartment. One of the executing officers admitted that he never actually tried to follow the directions in the warrant.

Appellant argued the warrant’s description of the premises to be searched was insufficient because an officer without independent knowledge would not have been able to find the correct apartment. The state responded that the description was sufficient, because it allowed the officer who had previously surveilled the apartment to lead the officers executing the warrant to the correct premises. The state also argued that, because there was only one Building Q in the apartment complex, the directions would have allowed an executing officer to find the correct premises.

The trial court denied the motion to suppress. Although the court agreed that the directions were “nonsensical,” it found the executing officers had properly relied on the knowledge of the officer who had previously surveilled the premises. The court also found that an officer attempting to follow the erroneous directions could have asked a local resident for the location of Building Q and, since there was only one in the complex, could have found the correct premises.

Following this denial, appellant pled guilty to the charges but reserved his right to appeal this dispositive issue. See Fla. R. App. P. 9.140(b)(2)(A)®. “The standard of review for motions to suppress is that the appellate court affords a presumption of correctness to the trial court[’]s findings of fact but reviews de novo the mixed questions of law and fact that arise in the application of the historical facts to the protections of the Fourth Amendment.” Wyche v. State, 987 So.2d 23, 25 (Fla.2008) (footnote omitted).

Under the Fourth Amendment of the United States Constitution and Article I, Section 12 of the Florida Constitution, a warrant must particularly describe the place or places to be searched. Historically, the purpose of this requirement was to prevent the use of general warrants and wide-ranging exploratory searches. See State v. Leveque, 530 So.2d 512, 513 (Fla. 4th DCA 1988); Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987).

[I]t is a sufficient designation of the place to be searched if the officer to whom the warrant is directed is enabled to locate the same definitely and with certainty. This does not necessarily require the true legal description to be given in the form it appears on the records of the deed register. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officer unerringly to it, satisfies the constitutional requirement.

Jackson v. State, 87 Fla. 262, 267, 99 So. 548 (1924). In other words, “[a] warrant is sufficient if the description is such that the officer can, with a reasonable effort, ascertain and identify the intended location for the search.” Leveque, 530 So.2d at 513. “The test is one of practical accuracy, not technical nicety.” Clapsaddle v. State, 545 So.2d 946, 947 (Fla. 2d DCA 1989).

Appellant and the state disagree as to whether officers executing a search warrant can rely on another officer’s independent knowledge of the premises to cure defects in an ambiguous search warrant. The trial court determined such assistance was appropriate, based on Smith v. State, 182 So.2d 461 (Fla. 2d DCA 1966). In Smith, “[t]he warrant gave authority to search a dwelling located at 306 Water, Plant City, Hillsborough County, Florida,” and Smith “lived at 306 South Water Street, Plant City.” Id. at 463 (emphasis added). The Second District held the description was “sufficient where the searching officer had kept the house under , surveillance the previous evening and could locate it as described with certainty.” Id. at 463.

Appellant relies on Shedd v. State, 358 So.2d 1117 (Fla. 1st DCA 1978), where the search warrant contained an incorrect street address and an inaccurate physical description of the house to be searched. Id. at 1118. The house, however, was under surveillance. Id. After obtaining the warrant, the officers “went directly to Shedd’s home ... and paid no attention to the address given in the warrant.... They relied on their independent knowledge of Shedd’s home.” Id. The First District reversed the denial of Shedd’s motion to suppress, reasoning:

Search warrants are to be strictly construed. The authority to search is limited to the place described in the warrant. This does not include additional or different places.... A search of a citizen’s residence must be based on the description set forth in the warrant and not left to the discretion of an officer. In the case before us, an officer without independent knowledge would have searched an incorrect residence. This can and must be avoided.

Id. (emphasis added). Shedd distinguished Smith as involving a minor defect in the warrant’s description that did not affect the officers’ ability to locate the house. Shedd, 358 So.2d at 1119.

In a subsequent case, Carr v. State, 529 So.2d 805 (Fla. 1st DCA 1988), the First District appeared to recede from Shedd, concluding that “a prior or continuing surveillance of the premises may be considered in connection with the warrant description of the place to be searched.” Id. at 806. Carr upheld a warrant listing the wrong apartment number where

the warrant contained detailed directions to the small apartment building in which appellant resided and described the apartment to be searched as the one occupied by appellant and another named individual. The officers were aware of appellant’s residence through their surveillance of the premises, and were able with reasonable effort to identify the place to be searched in accordance with the warrant description. In the circumstances presented the inaccuracy in the warrant with regard to the apartment number did not place the officers in doubt as to the premises to be searched and does not invalidate the warrant.

Id. at 807 (emphasis added).

Carr is in line with federal case law on this issue. See, e.g., United States v. Harbison, 523. Fed.Appx. 569, 573-74 (11th Cir.2013) (despite incorrect address, “the physical description of the target residence, as well as law enforcement’s familiarity with the property based on surveillance, puts to rest [appellant’s] contention that the officers did not have sufficiently particular information”); United States v. Burke, 784 F.2d 1090, 1092-93 (11th Cir. 1986) (“In evaluating the effect of a wrong address on the sufficiency of a warrant, this Court has also taken into account the knowledge of the officer executing the warrant, even where such knowledge was not reflected in the warrant or in the affidavit supporting the warrant -”). But see United States v. Williamson, 1 F.3d 1134, 1136 (10th Cir.1993) (noting that, “[although an executing officer’s knowledge may be a curing factor” it cannot be “the sole source of information identifying the physical location of the” premises to be searched). As there does not appear to be any United States Supreme Court precedent directly on point, this federal case law is not binding on this court. See Art. I, § 12, Fla. Const. (“This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”) (emphasis added); State v. Rabb, 920 So.2d 1175, 1182 (Fla. 4th DCA 2006) (“Article I, Section 12 of the Florida Constitution does not prevent this Court from granting heightened protection in the absence of United States Supreme Court precedent directly on point to the contrary.”). Nevertheless, these cases are persuasive.

We hold that independent knowledge of the premises by an officer executing a search warrant, where that knowledge was obtained from prior surveillance of the premises, may be considered in assessing whether the warrant’s description of the premises is sufficiently particular. See Carr, 529 So.2d at 806-07; Burke, 784 F.2d at 1092-93. This principle has limits, grounded in the. need to protect the public from general searches or seizures by officers with unfettered discretion. See Leveque, 530 So.2d at 513; Garrison, 480 U.S. at 84, 107 S.Ct. 1013. If the warrant’s description is so manifestly defective that the executing officer’s independent knowledge is essentially the only way the executing officers could have found the property, the warrant description is not sufficiently particular. See Williamson, 1 F.3d at 1136.

Here, the warrant’s description is not so manifestly deficient. The description was correct as to the letter of the building and the apartment number. Moreover, there was only one Building Q in the apartment complex.

The description at issue in Shedd was far more inaccurate'than the description in this case. There, the warrant description read:

A house located at 5738 Blanding Boulevard, Jacksonville, Duval County, Florida, more particularly described as follows. The location to be searched is a wood frame house, green in color with white trim. The house has a front porch facing Blanding Blvd. Directly in front of the location to be searched is a mailbox with the numbers 5738 painted on the mailbox.

Shedd, 358 So.2d at 1118. The house searched was located at 6573 Blanding Boulevard, was a concrete block house rather than a wood frame, and had a front porch facing a different direction. Id. Furthermore, there was actually a house with the address 5738 Blanding Boulevard, located about 1.1 miles away from the correct premises, which was green with white trim and faced Blanding Boulevard. Id. Under these circumstances, it was very likely that, without the help of the officer who had previously conducted surveillance, the executing officers “would have searched an incorrect residence.” Id.

In contrast, the errors in the warrant description in this case are more akin to the minor discrepancies in Smith and Carr. We hold that, where a warrant contains these types of inaccuracies, the independent knowledge of an officer who previously surveilled the premises can be considered in determining whether the warrant description was sufficiently particular.

For the foregoing reasons, we affirm the conviction and sentence.

WARNER, STEVENSON and GERBER, JJ., concur.


author: WETHERELL, J. MAKAR, J.,

text:
    Alexander James SILVERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5434.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 2, 2014.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

In this direct criminal appeal, Alexander James Silvers contends that his convictions and sentences for three counts of battery violate the constitutional prohibition against double jeopardy because each count involved the same victim and occurred during the same criminal episode. We agree. Accordingly, we reverse Silvers’ judgment and sentence in part and remand with directions to vacate two of the battery convictions.

Silvers engaged in multiple non-consensual sexual acts with a 17-year old girl. The entire incident took place in one room of Silvers’ apartment, and was an uninterrupted event lasting approximately 10 minutes without any break between the different sexual acts. The State charged Silvers with three counts of sexual battery (counts I — III) and two counts of unlawful sexual activity with a minor (counts IV-V). Counts I and IV alleged that Silvers placed his penis in or upon the victim’s vagina; counts II and V alleged that Silvers placed his penis inside the victim’s mouth; and count III alleged that Silvers placed his mouth in or upon the victim’s vagina. Following a jury trial, Silvers was found guilty of the lesser-included offenses of battery in counts I — III, and guilty as charged in counts IV and V. The trial court sentenced Silvers to 12 months for each count of battery and 15 years for each count of unlawful sexual activity with a minor, with all sentences to run concurrently. This appeal followed.

On appeal, Silvers does not challenge his convictions or sentences for counts IV and V; he only challenges his convictions and sentences for battery in counts I — III. Specifically, Silvers contends that his multiple battery convictions violate the prohibition against double jeopardy because his actions involved one victim and occurred in a single criminal episode. The State does not dispute that Silvers’ battery convictions arose from a single criminal episode, but it argues that the multiple convictions do not violate double jeopardy because each battery was predicated on a separate and distinct unlawful touching. See Hayes v. State, 803 So.2d 695, 700 (Fla.2001) (“[T]he prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.”) (emphasis in original).

The State bases its argument primarily on State v. Meshell in which the supreme court explained that “sexual acts of a separate character and type requiring different elements of proof, such as those provided in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” 2 So.3d 132, 135 (Fla.2009). Silvers responds that Meshell has no application here because he was convicted of battery, not sexual battery. We agree with Silvers because, as explained by our sister court in Miles v. State,

[t]he sexual battery statute proscribes very specific conduct which can be committed in a number of specified ways. The battery statute has no such similar language. The Legislature does not separately criminalize the unlawful touching of one’s face, separate and apart from one’s torso.

94 So.3d 662, 664 (Fla. 5th DCA 2012).

Like the defendant in Miles, Silvers was convicted of multiple violations of the same statute based upon multiple unlawful touchings of the same victim during a single criminal episode. Neither the battery statute, nor section 775.021(4), Florida Statutes, permits multiple convictions and sentences under these circumstances. See id. (“The victim in this case suffered injuries to her face, neck, arms, and ankle. Under the State’s theory, [the defendant] was subject to prosecution for each. That argument defies logic; more importantly, it is not supported by the legislative enactment of the battery statute.”); Harris v. State, 111 So.3d 922, 924 (Fla. 1st DCA 2013) (holding that the defendant’s convictions for felony battery and battery arising out of fight in which he choked his girlfriend and struck her multiple times violated the prohibition against double jeopardy because the facts showed “one continuous battery — an uninterrupted series of acts, as opposed to distinct acts separated by time, intervening acts, or locations”); Ocasio v. State, 994 So.2d 1258, 1264 (Fla. 4th DCA 2008) (holding that the defendant’s dual convictions for the lesser-included offenses of battery arising out of an altercation in which he struck his estranged wife, put his fingers inside her vagina, and bit her breast violated the prohibition against double jeopardy because there was “no evidence that there was a temporal break between any of the incidents ... so that a new criminal intent could be formed”). Accordingly, Silvers’ multiple convictions and sentences for battery violate the prohibition against double jeopardy.

For these reasons, we reverse Silvers’ judgment and sentence in part and remand with directions to vacate two of the battery convictions. We affirm the judgment and sentence in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

PADOVANO, J., concurs.

MAKAR, J. concurs with opinion.

MAKAR, J.,

concurring.

I agree that Silvers’s convictions and sentences for the three lesser-included batteries in counts I — III violate double jeopardy, but write separately to explain my reasoning. Rather than analyze the three different non-consensual sexual acts by which Silvers abused the minor, the record and jury instructions can be read to conclude there were three different nonsexual batteries (he punched the victim in the eye, jaw and nose) that may have formed the basis for the jury to convict him of the three batteries. The double jeopardy clauses would apply to these three non-sexual crimes because they were part of one uninterrupted criminal episode. This approach avoids the conundrum of how the jury could have found that Silvers’s three unlawful sexual touchings of the minor could have formed anything other than discrete sexual acts for which the double jeopardy clause would not apply. Because the jury found Silvers guilty in counts IV-V, which involved unlawful sexual activity with a minor, they may have decided to check the three boxes on the verdict form for Counts I — III as simple batteries of the victim; their verdict would be logically inconsistent otherwise.

      . We decline to speculate on the rationale for what appears to be a logically inconsistent (but not a "truly” inconsistent) verdict; however, we note that the rationale postulated in the concurring opinion finds no support in the record because Silvers was not charged with battery for punching the victim. See Answer Brief of Appellee at 2 n. 1 ("The State elected not to charge Appellant with a separate battery for any of these punches to M.M.’s throat, eye, and nose."). Accordingly, as the State concedes in its brief, Silvers’ battery convictions were necessarily based upon the three specific acts alleged in the sexual battery counts. Id. at 10 ("Here, Appellant’s three battery convictions were lesser-included offenses of three distinct criminal acts. The first unlawful touching (Appellant’s penis and M.M.’s mouth) occurred when Appellant forced M.M. to perform oral sex on him. The second unlawful touching (Appellant’s mouth and M.M.’s vagina) occurred after he told her to take her clothes off and then penetrated her vagina with his tongue. The third unlawful touching (Appellant's- penis and M.M.’s vagina) occurred when he penetrated her vagina with his penis .... ”); see also id. at 12 ("The lesser included battery verdicts were found by the jury in separate verdict forms for' each of the three sexual battery charges. In a light most favorable to sustaining the convictions, the jury found Appellant guilty of three separate instances of battery based on the three distinct unlawful touchings.”).


text:
    Thomas BUTDORF, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5122.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.
   PER CURIAM.

Thomas Butdorf appeals the postconviction court’s order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of ground one without comment but reverse the postconviction court’s denial of ground two and remand for the postconviction court to consider that claim on its merits.

Mr. Butdorf pleaded no contest to manslaughter by culpable negligence on September 23, 1996, and the trial court sentenced him to fifteen years’ probation. On September 17, 2009, the trial court found that Mr. Butdorf violated his probation by committing arson in Ohio and sentenced him to ten years’ prison with credit for time served. This court affirmed without written opinion. Butdorf v. State, 49 So.3d 753 (Fla. 2d DC A 2010) (unpublished table decision).

Mr. Butdorf filed a timely rule 3.850 motion, alleging in ground two that his sentence was based on incorrect score-sheet calculations. First, Mr. Butdorf alleged that the trial court found only one violation of probation and it was not a felony conviction, so the scoresheet should have assessed only six points, and not twelve points, for a community sanction violation under section 921.0014(1), Florida Statutes (1993). He further contended that a lesser sentence would have been imposed if the scoresheet were accurate.

The postconviction court interpreted this claim as one of ineffective assistance of counsel and denied the claim as insufficiently pleaded. However, Mr. Butdorf sufficiently pleaded a claim of scoresheet error apparent from the face of the record, and such a claim is cognizable in a motion filed under rule 3.850. The postconviction court should have determined whether the record conclusively refutes Mr. Butdorfs claim of error and, if not, whether the record conclusively shows that the same sentence would have been imposed with a correct scoresheet. See State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (“Because it is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence, we agree that the would-have-been-imposed standard should apply to motions filed under rule 3.850 to correct scoresheet error”).

Mr. Butdorf also alleged that the scoresheet erroneously assessed six points for two prior felony convictions that he disputes. This is a scoresheet error that is not apparent on the face of the record, but it can be raised in a motion filed under rule 3.850 if pleaded as a claim of ineffective assistance of trial counsel. See Lo-mont v. State, 506 So.2d 1141, 1142 (Fla. 2d DCA 1987) (holding that a challenge to the assessment of points for felony convictions is not a claim of scoresheet error that can be resolved on the face of the record and is cognizable in a rule 3.850 motion only if raised as a claim of ineffective assistance in failing to object to such an error); see also Soto v. State, 814 So.2d 533, 533 (Fla. 2d DCA 2002) (holding that a scoresheet error that cannot be determined “from the face of the record” may be raised as a claim of ineffective assistance of trial counsel pursuant to rule 3.850). Mr. Butdorf alleged that trial counsel' erroneously told the trial court that the scoresheet was accurate without reviewing it with him and that but for the erroneous assessments, a lesser sentence would have been imposed. Mr. Butdorf pleaded facts that, if true, could constitute both deficient performance and prejudice. The postconviction court erred in denying this claim of ineffective assistance of counsel as insufficiently pleaded.

Accordingly, we reverse the portion of the postconviction court’s order summarily denying ground two, of Mr. Butdorf s rule 3.850 motion and remand with directions for the postconviction court to address the merits of that claim.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, CRENSHAW, and BLACK, JJ., Concur.


text:
    Edward J. HOOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1510.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2014.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Edward Hoover appeals the circuit court’s revocation of his probation and sentences in this Anders appeal. We affirm the revocation of probation and resulting sentences, but remand for the circuit court to enter a written order of revocation of probation which specifies the conditions Hoover was found to have violated. Sharpe v. State, 88 So.3d 363 (Fla. 4th DCA 2012); A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012).

Affirmed, but remanded.

GROSS, MAY and LEVINE, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: SILBERMAN, Judge.

text:
    Alan J. SPAULDING, Appellant, v. Amy L. SHANE, Appellee.
    No. 2D12-1963.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.
    Alan J. Spaulding, pro se.
    No appearance for Appellee.
   SILBERMAN, Judge.

Alan J. Spaulding seeks .review of the trial court’s order denying his motion to dissolve a permanent injunction for protection against domestic violence that was entered in April 2003. The basis of the motion was that Spaulding was serving a forty-year prison sentence and had not had contact with the victim for over ten years. We reverse because the trial court applied the wrong standard in denying the motion. In April 2003, Amy L. Shane filed a petition for injunction against domestic violence in which she asserted that Spaulding, her live-in boyfriend, pushed her during an argument and then refused to leave when told to do so. Shane also alleged that Spaulding had “man-handled” her and her minor child on numerous occasions. After conducting a hearing on the matter, the trial court entered a final judgment of injunction for protection against domestic violence that prohibited Spaulding from contacting Shane or coming within 500 feet of her.

In May 2011, Spaulding filed a motion to dissolve the injunction in which he claimed that the circumstances under which the injunction was issued no longer existed because he would be incarcerated until July 2039 and had no ability to commit domestic violence against Shane. Spauld-ing also alleged that he had not attempted to contact or communicate with Shane since the injunction was entered in 2003. Spaulding explained that the injunction caused him to suffer certain collateral effects in prison.

trial court conducted a tele-telehearing and entered an order deny-denythe motion. The court summarized the parties’ testimony. Spaulding testified as to his anticipated release date and the adverse impact of the injunction. Shane testified that she still feared Spaulding and was concerned that he might try to contact her from prison or after he is released. Shane stated that Spaulding had written to her in May 2003, but Spaulding denied this allegation. The court did not determine which witness was more credible. Instead, the court ruled as follows:

This court does not find the collateral adverse effects of the injunction to be sufficient to warrant the dissolution of the Court’s order of protection entered in favor of the petitioner. While there has been no recent contact that also does not persuade the court to lift the order as it appears to be accomplishing the intent of the Court that there be no contact between the parties, either directly or indirectly.

We reverse because the trial court applied the incorrect standard in denying Spaulding’s motion to dissolve the injunction. In order to establish entitlement to dissolution of an injunction, the movant must prove that there has been a change in circumstances since the injunction was entered. Baker v. Baker, 112 So.3d 734, 735 (Fla. 2d DCA 2013); Alkhoury v. Alk-houry, 54 So.3d 641, 642 (Fla. 1st DCA 2011). This requires the movant to “demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury, 54 So.3d at 642. This standard is clearly different than the standard applied by the trial court.

While we would ordinarily reverse and remand for the trial court to apply the correct standard, it is clear from the face of the court’s order that Spaulding is entitled to have his motion to dissolve injunction granted. The facts of this case are analogous to those in Baker. There, an estranged wife filed a petition for injunction for protection against domestic violence based on allegations that her estranged husband came to her home, broke down her door, spit in her face, and threatened to kill her and burn her house down. Baker, 112 So.3d at 734-35. The husband subsequently filed a motion to dissolve the injunction in which he alleged that the parties had divorced, he had no contact with the former wife, and he was serving a thirty-year prison term. Id. at 735. The trial court denied the motion, but this court reversed. This court concluded that the husband’s prison term constituted a change in circumstances that eradicated the scenario underlying the injunction such that continuing the injunction would not serve a valid purpose. Id.

As in Baker, Spaulding is serving a long prison sentence with an anticipated release date that is decades away. And this prison term constitutes a change in circumstances that eliminated the scenario underlying the injunction which was Spaulding’s man-handling of Shane. We acknowledge the trial court’s comment that the injunction appeared to be working as there had not been recent contact between the parties. But under the applicable legal standard, the court erred in denying Spaulding’s motion to dissolve because he is incarcerated, he is not likely to be released anytime soon, and he has not had any contact with Shane for over ten years.

We therefore reverse the order denying Spaulding’s motion to dissolve injunction with directions for the court to grant the motion on remand.

Reversed and remanded with directions.

KELLY and VILLANTI, JJ., Concur.