author: GROSS, J.

text:
    Angela ROSARIO-SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3142
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Angela Rosario-Santos appeals her conviction and sentence for first degree petit theft. Because the state failed to adequately prove the stolen property was valued at $100 or more, we reverse and remand for the entry of a judgment of guilt for second degree petit theft.

At trial, the Walmart security guard who apprehended appellant testified that he observed appellant and another woman leave the store with a shopping cart full of some paid-for items and some unpaid-for items. The security guard did not testify to the value of the stolen items. The police officer who responded to Walmart took several photos of the items in the shopping cart, which were admitted into evidence. One photo shows assorted meats, but no price tags. The officer did not testify to value.

In response to appellant’s motion for judgment of acquittal based on the state’s failure to establish value, the prosecutor asserted that some of the prices in the meat photo “may add up to over $100,” but admitted she did not get a chance to “really look that closely” at the photo. During closing argument, the prosecutor conceded that the state did not “have an exact value” of the unpaid-for items, but told the jury to use their common sense.

“A conviction for first-degree petit theft requires competent substantial evidence showing that the defendant stole property with a ‘value’ at the time of the theft between $100 and $300.” Sanchez v. State, 101 So.3d 1283, 1286 (Fla. 4th DCA 2012) (citing § 812.014(2)(e), Fla. Stat. (2010)). “Where the state fails to prove that the stolen property is worth at least $100, a conviction for first degree petit theft must be reduced to second degree petit theft.” Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010).

Here, the state provided no evidence of the value of the stolen items. It is theoretically possible that the fair market value of an item could be determined to exceed $100 on common sense alone, for instance, if the item was a classic Picasso painting. That fact pattern is not present in this case. A photo of assorted meats, without more, is not competent evidence of value to support a conviction of first degree petit theft.

We reverse the conviction and sentence for first degree petit theft and remand for the entry of a judgment of conviction and sentence for second degree petit theft.

Reversed and remanded.

Gerber, C.J., and Kuntz, J., concur.


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    H.N.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3111
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]
    Carey Haughwout, Public Defender, and J, Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The juvenile appeals from the circuit court’s disposition order following the court finding him guilty of disrupting an educational institution in violation of Section 877.13, Florida Statutes (2016). The charge stemmed from the juvenile’s fight with another student at their school one morning. The juvenile argues that the court erred in denying his motion for judgment of dismissal because the state did not present sufficient evidence of: (1) a specific intent to disrupt school activities; or (2) any material disruption resulting from his conduct. We agree with the juvenile’s argument. We reverse for entry of a judgment of dismissal.

The State’s Evidence

At the adjudicatory hearing, the state presented the following evidence. The juvenile and the other student were involved in an ongoing feud. Before the morning of the fight at issue in this case, an assistant principal had warned the juvenile and the other student at least twice “about not bringing this kind of trouble on the school campus.”

On the morning of the fight at issue, the other student and his sister were standing near the school’s bus loop, waiting for school to start, when the juvenile exited his bus and passed by them. The two boys looked at each other and began arguing. As they continued arguing, the two boys walked towards each other. The boys then removed their backpacks. The other student’s sister described what happened next: “[TJhey locked up. Like they ran up, like walked up to each other and they locked up and like, pretty much like started fighting and then they fell on the floor and then [a third student] came and broke it up.” The fight was very short. No school staff member was around when the fight occurred.

After the third student broke up the fight, the boys continued arguing. The juvenile took off his shirt and tried to provoke the other student to continue the fight. However, the boys ultimately walked away from each other. The other student and his sister walked towards the nearby cafeteria where breakfast was being served. The fight had not stopped students from unloading off the busses or going to the cafeteria.

While the fight had been occurring, a student ran to the school’s resource officer, who was on the other side of the bus loop, and told the resource officer about the fight. The resource officer testified that he headed towards the fight’s location. As soon as he began heading toward the fight’s location, he saw the juvenile walking away from that location. The juvenile was not wearing a shirt. The resource officer immediately escorted the juvenile to the assistant principal’s office. While the resource officer was escorting the juvenile, the juvenile did not scream, holler, cuss or wave his arms. However, the juvenile was attracting other students’ attention because he was shirtless and walking with the resource officer.

An assistant principal also testified. He said he was positioned on the back of the courtyard when he noticed numerous students moving quickly, “very differently than they normally do,” and “bunching up” in an area near the bus loop. When he started moving to that area, he saw the resource officer leading the shirtless juvenile away from the crowd. The assistant principal testified that although some crowding occurred near the gate which led to the cafeteria, the fight had not disrupted bus service or the serving of breakfast.

At the close of the state’s evidence, the juvenile’s counsel moved for a judgment of dismissal. The juvenile’s counsel, quoting from our opinion in T.H. v. State, 797 So.2d 1291 (Fla. 4th DCA 2001), stated that “the statute seeks to prohibit acts which are specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.” According to the juvenile’s counsel, a fight is not enough unless evidence exists “of knowing or intentional conduct designed to disrupt a school function or activity,” and “[i]n this case ... it was just ... a fight between two kids and there was no disruption after that.” The juvenile’s counsel concluded by arguing, “What the State ... has done in this case is ... proven an affray between the two kids ... but that’s not what he’s charged with. What he’s charged with is intentionally disrupting a school function, which there’s no evidence of that, despite the fact that there might have been kids going in this direction or that direction ... different from the normal movement of the kids.”

The prosecutor responded, “The willfulness in this case is different because these two kids intended to fight and square off with one another and chose the setting to be the school. They previously had been warned not to do this. So this is different than two people just getting into a fight and it happens to be the school.” The prosecutor also argued that the smooth operation of the school was disrupted because, after the fight, students gathered around the entrance to the cafeteria, even though the cafeteria did not shut down.

The circuit court denied the motion for judgment of dismissal. Later, the court entered an order finding the state proved beyond a reasonable doubt that the defendant committed disruption of an educational institution as charged. After a disposition hearing, the court withheld adjudication of delinquency and placed the juvenile on probation.

This appeal followed. The juvenile argues that the court erred in denying his motion for judgment of dismissal because the state did not present sufficient evidence of: (1) a specific intent to disrupt school activities; or (2) any material disruption resulting from his conduct.

Our Review

We summarized our standard of review in S.B. v. State, 31 So.3d 968 (Fla. 4th DCA 2010):

Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo. When moving for a judgment of acquittal, a defendant admits both the facts adduced, as well as every conclusion favorable to the State that a finder of fact could fairly and reasonably infer from the evidence. Evidence is sufficient to sustain a conviction if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the State.

Id. at 969-70 (internal citations omitted).

Applying the foregoing standard of review, we agree with the juvenile’s argument that the circuit court erred in denying his motion for judgment of dismissal.

Section 877.13(l)(a), Florida Statutes (2016), states: “It is unlawful for any person ... [kjnowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.”

We previously have interpreted section 877.13(l)(a) as follows:

The statute is designed to prohibit acts that are specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property. This is to ensure that the educational institutions and their administrators áre free to perform their lawful functions without undue or unwarranted interference or disruption from others. Its intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities.

T.T. v. State, 865 So.2d 674, 676 (Fla. 4th DCA 2004) (emphasis added; internal alterations, citations, and quotation marks omitted).

Our sister courts similarly have held that section 877.13(l)(a) contains a specific intent element. See L.T. v. State, 941 So.2d 551, 552 (Fla. 2d DCA 2006) (“This offense contains a specific intent element ....”) (citations omitted); A.M.P. v. State, 927 So.2d 97, 100 (Fla. 5th DCA 2006) (“The statute’s requirement that one must ‘knowingly’ disrupt the functioning of an educational institution suggests that the prohibited conduct requires some sort of purposeful interference with school activities.”); C.K. v. State, 850 So.2d 636, 637 (Fla. 1st DGA 2003) (“This statute contains a specific scienter requirement ....”) (citations omitted).

The third district further has held that section 877.13(l)(a)’s use of the term “ ‘disrupt’ is synonymous with ‘interfere’ and its plain and ordinary meaning is to throw into confusion or disorder [or] to interrupt or impede the progress, movement, or procedure of [or] to break or burst; rupture.” M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997) (alterations, citations, and some quotation marks omitted). We agree with those holdings and have considered their import in our evaluation of this case.

Of the many cases applying section 877.13(l)(a) to various factual scenarios, the most factually analogous case is our opinion in T.H. v. State, 797 So.2d 1291 (Fla. 4th DCA 2001). T.H. states, in pertinent part:

We reverse the conviction for knowingly disrupting or interfering with the lawful administration or functions of an educational institution. § 877.13(l)(a), Fla. Stat. (2000). The statute seeks to prohibit acts which are “specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.” M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997).
Appellant got into a fight with another student on a high school campus at 7:00 a.m., before school began. The fight was over a girl. The fuel for the fight was jealousy. There was no evidence of knowing or intentional conduct designed to disrupt a school function or activity. Also, no school function or activity was taking place at the time and location of the fight. Unlike A. C. v. State, 479 So.2d 297 (Fla. 3d DCA 1985), appellant did not pick a fight with students waiting to go home on the school 'bus; transportation of students to and from school is clearly part of the administration of an educational institution under section 877.13(1). See id. at 298.

797 So.2d at 1292.

The instant case’s facts are very similar to T.H. Viewing the evidence in the light most favorable to the state, no evidence existed that the juvenile knowingly disrupted or interfered with the school’s administration or functions. The fight itself did not disrupt the school’s administration or functions. The fight broke up before most other students even reacted. What ultimately got the other students’ attention was the shirtless juvenile being calmly escorted to the principal’s office by the resource officer. But even that event did not disrupt the school’s administration or functions. The assistant principal testified that although some crowding occurred near the gate which led to the cafeteria, the fight had not disrupted bus service or the serving of breakfast.

We distinguish the instant case from another of our previous cases where we concluded, based on more egregious facts, that a juvenile knowingly disrupted or interfered with a school’s administration or functions. See J.J. v. State, 944 So.2d 518, 519-20 (Fla. 4th DCA 2006) (affirming adjudication where juvenile: (1) incited two other students to fight in the cafeteria; (2) resisted a school employee’s numerous attempts to control his behavior; (3) caused other students to get louder and crowd around the other students; (4) interfered with the serving of breakfast; and (5) had to be forcibly escorted by two other school employees from the cafeteria).

In sum, not every school fight, and not every event which draws other students’ attention, amounts to disrupting an educational institution in violation of section 877.13(l)(a). See A.M.P., 927 So.2d at 100 (“A broad interpretation of the statute would turn virtually every infraction of school rules into a criminal act to the extent that the infraction occurred on school grounds, during school hours, and required the attention of school officials.”).

While another charge against the juvenile may have been appropriate under the facts of this case, the charge of disruption of an educational institution was not proven here. See M.S.G., III v. State, 971 So.2d 273, 274 (Fla. 1st DCA 2008) (where “child was involved in a fight on the school grounds but there was no evidence that he acted with the deliberate intent to disrupt a school function,” the evidence was insufficient to support the disruption charge, but was sufficient to support an affray charge).

Based on the foregoing, we reverse and remand for entry of a judgment of dismissal.

Reversed and remanded for entry of judgment of dismissal.

Gross and Kuntz, JJ,, concur.


author: Levine, J.

text:
    A.M., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and Guardian Ad Litem Program, Appellees.
    No. 4D17-699
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]

      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon,’ Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Kelley Schaeffer, Bradenton, for. appel-lee Department of Children and Families.
    Laura J. Lee, Sanford, for appellee Guardian Ad Litem Program.
   Levine, J.

A child was sheltered due to a psychotic episode involving the mother. The Department of Children and' Families subsequently petitioned to terminate the mother’s parental rights due to her refusal to take necessary medications. The mother was then declared incompetent in an unrelated criminal trial. The question presented for our review is whether the mother’s procedural due process rights require that her termination of parental rights trial not proceed until the mother is deemed competent, or whether the trial can proceed despite the fact that the mother was declared incompetent in an unrelated proceeding.

. We find that the trial court did not err in allowing the .termination proceeding to proceed while the mother was incompe-; tent, since the termination proceeding did not violate the three-part, balancing test used to determine the procedures required to deprive someone of a protected interest, as enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We further conclude that the trial court did not abuse its discretion when it denied the mother’s motion for continuance, • under the facts of this case and where there was no assuran'ce of when the mother would regain competence.

The child in this case was sheltered in 2015 following an incident'where the mother had a psychotic episode and was committed to a mental health facility. The child was declared dependent and the Department of Children and Families subsequently petitioned to terminate the mother’s parental rights because the mother (1) failed to comply with the case plan, (2) had abandoned the child, and (3) was a threat to the child’s well-being and safety irrespective of the provision of services. The Department stated in its petition that the mother had refused to take her medication as required by the case plan and was a danger to the child.

In December 2016, during the dependency proceeding,. the mother was declared incompetent in an unrelated criminal case. The court in that case stated there was a “substantial probability” the mother would regain competence in the “reasonably foreseeable future.”

In the dependency case, the trial court continued the original January 2017 trial date.as. the mother was involuntarily committed, . and the trial date was reset for February 2017. A few days before trial, counsel for the mother objected to conducting the termination trial while the mother was incompetent, arguing it violated her due process rights. Counsel requested the trial date be continued until June 2017. The trial court denied the motion. At trial, the mother was non-responsive,

The trial court terminated the mother’s parental rights, finding that the mother had refused to take her medication and had otherwise failed to comply with her case plan. The mother appeals.

The mother argues that the trial court violated her due process rights by holding the termination of parental rights trial while she was incompetent. -We review the issue of whether the trial court violated the mother’s due process rights de novo. See VMD Fin. Servs. v. CB Loan Purchase Assocs., 68 So.3d 997, 999 (Fla. 4th DCA 2011).

The Due Process Clause of the United States and Florida Constitutions encompasses both substantive and procedural due process. See M.W. v. Dams, 756 So.2d 90, 97 (Fla. 2000). A person’s substantive due process rights “protect! ] the full panoply of individual rights from unwarranted encroachment by the government.” Id. (quoting Dep’t of Law Enf't v. Real Prop., 588 So.2d 957, 960 (Fla. 1991)). Procedural due process “serve[s] as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue.” Id. (quoting Real Prop., 588 So.2d at 960). Although a parent has a substantive due process right to raise his or her child, the state may interfere with this right if “the State is acting to protect the children from harm.” Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla. 1996).

To determine procedural due process rights in a termination of parental rights proceeding,

the nature of the process due ... turns on a balancing of the “three distinct factors” specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976): the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.

Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

As to the first factor, a parent’s right to raise his or her child is an important fundamental right. See N.S.H. v. Fla. Dep’t of Children & Family Servs., 843 So.2d 898, 902 (Fla. 2003). However, in termination proceedings, the parent’s rights are not the only ones at stake; we must also consider the interests of the child in our analysis. See id, “The child, too, has a right to achieve stability in [his] life with parents who will properly care for [him].” J.E. v. Dep’t of Children & Families, 126 So.3d 424, 429 (Fla. 4th DCA 2013) (alteration in original) (quoting D.G. v. Dep’t of Children & Families, 77 So.3d 201, 210 (Fla. 4th DCA 2011)).

Appellant seeks to analogize termination cases to criminal cases. However, unlike a criminal or a civil commitment' case, termination eases do not involve the deprivation of “physical liberty.” See N.S.H., 843 So.2d at 902. Consequently, “our supreme court has already determined that [termination] proceedings are not entitled to the protections of a criminal trial, because the procedures, and goals in place in child dependency and termination proceedings are different than those for criminal prosecutions,” ‘ W.S. v. Dep’t of Children & Families, 31 So.3d 329, 331 (Fla. 4th DCA 2010) (citing S.B. v. Dep’t of Children & Families, 851 So.2d 689, 693 (Fla. 2003)); see also N.S.H., 843 So.2d at 903 (holding Anders protections do not apply to termination proceedings); C.S. v. Dep’t of Children & Families, 124 So.3d 978, 979 (Fla. 4th DCA 2013) (stating a trial court may enter a consent judgment where a parent fails to appear at a termination trial). Therefore, while a criminal defendant must be competent, the same is not necessarily true in termination proceedings, which involve not only the parents’ rights but also child’s rights.

As to the second factor, we must consider the risk of error in holding a termination trial while the parent is incompetent. Although a parent’s ability to assist trial counsel and to testify in his or her own defense is an important procedural safeguard, in termination proceedings, unlike most civil cases, a parent is entitled to assistance from counsel and the state must prove the grounds for termination by clear and convincing evidence, thus diminishing the risk of error. See §§ 39.807, 39.809, Fla. Stat. (2015).

Finally, we must consider the government’s interest. The government has two interests: “a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.” Santosky, 455 U.S. at 766, 102 S.Ct. 1388. The state has a parens patriae interest in providing children with a permanent home. See id. at 766-67, 102 S.Ct. 1388. Additionally, “[although the State has a significant interest in the finality of both criminal and TPR judgments, the interest in finality is substantially heightened in the TPR context by the very important consideration that must be given to the child’s interest in reaching permanency and to the harm that results when permanency is unduly delayed.” J.B. v. Fla. Dep’t of Children & Families, 170 So.3d 780, 792 (Fla. 2015); see also § 39.0136(1), Fla. Stat. (2015) (“The Legislature finds that time is of the essence for establishing permanency for a child in the dependency system.”); C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779 (Fla. 4th DCA 2003) (“At all stages of the proceedings, courts are compelled to expedite proceedings to prevent children from languishing in the foster care system. This includes appeals. See Fla. R. App. P. 9.146(g). Achieving permanent stability in the child’s life is the paramount concern of the judicial process.”). Thus, the state’s interest favors conducting the termination proceeding expeditiously to avoid further harm to the child.

The government’s administrative interest favors conducting the termination trial as well. See J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1065-66 (Fla. 2000) (“[Termination of parental rights] proceedings place a tremendous cost and hardship on the State. In response, the Legislature has attempted to resolve this monumental burden by enacting legislation which swiftly moves these cases toward resolution, while at the same time guarding the rights and liberties of the parties involved.”).

In weighing these factors, we note that this court has previously concluded that it does not violate a parent’s due process rights to adjudicate a child dependent despite a parent’s incompetence. See S.K. v. Dep’t of Children & Families, 959 So.2d 1209, 1212 (Fla. 4th DCA 2007); L.M. v. Dep’t of Children & Families, 946 So.2d 42, 46 (Fla. 4th DCA 2006). Although these cases address adjudications of dependency, as opposed to the permanent deprivation of parental rights, they are nonetheless instructive.

As we stated in S.K., “It makes no sense and is circular to require the parent to become competent in order to proceed with the dependency adjudication, if the ineompetency were the very reason why the dependency proceeding was brought in the first place.” 959 So.2d at 1212. In the present case, the mother failed to comply with her case plan and take the medication necessary for her to alleviate her mental health symptoms. It is unreasonable for the child to remain unstable, as a result of the state being unable to terminate the mother’s parental rights when the state’s reason for terminating her parental rights was her previous failure to comply with her mental health treatment.

We conclude that proceeding with the termination proceeding did not violate the mother’s right to procedural due process. Although we recognize the significance of the deprivation and the fundamental rights at stake, on balance and under the facts of this case, “those rights must yield to the needs of the children.” L.M., 946 So.2d at 46. The need for finality and stability in the child’s life would be jeopardized if we were to require that the mother be competent during a termination trial where there is no assurance that the mother would regain competence and where the mother’s mental health issues initiated proceedings.

Our conclusion is consistent with a majority of jurisdictions, ’which have found that due process does not require a parent to be competent at the time of the termination proceeding. See In re N.S.E., 293 Ga.App. 171, 666 S.E.2d 587, 589 (Ga. Ct. App. 2008); In re Charles A., 367 Ill.App.3d 800, 305 Ill.Dec. 764, 856 N.E.2d 569 (2006); In re W.J.S.M., 231 S.W.3d 278 (Mo. Ct. App. 2007); In re M.M.L., 393 P.3d 1079 (Nev. 2017); In re R.M.T., 352 S.W.3d 12 (Tex. App. 2011). For example, in M.M.L., the mother suffered from mental illness and, as a result, the child was declared a ward of the court. 393 P.3d at 1080. Subsequently, in an unrelated criminal case, the mother was declared incompetent, and the termination trial proceeded notwithstanding the mother’s incompetence. After weighing the interests at stake, the Nevada supreme court held that due process did not require the mother to be competent as the wellbeing of the child was of a paramount concern. See id. at 1081-82.

A minority of jurisdictions, however, have placed procedural due process limitations on the power of the state to terminate an incompetent parent’s rights. In In re Alexander V., 223 Conn. 557, 613 A.2d 780, 785 (1992), the Connecticut supreme court held that due process requires a competency hearing prior to terminating a parent’s right, and in State ex rel. Juvenile Department of Multnomah County v. Evjen, 107 Or.App. 659, 813 P.2d 1092 (1991), the parent had a history of mental illness, and two weeks before the termination hearing she was hospitalized due to her mental'condition. The Oregon supreme court held the mother had a due process right to be present at the termination hearing.

Both Alexander and Evjen are distinguishable from the present case. - Alexander involved a different legal, issue from the present case. Alexander concerned the issue of whether a competency hearing may be required prior to a termination proceeding. In the present cáse, however, it is undisputed that the mother was incompetent and had been incompetent for nearly two months. Additionally, under Connecticut law, mental health is not a ground for terminating a parent’s rights. See In re M.M.L., 393 P.3d at 1082-83. Although mental health is not a ground under which a parent’s rights may be terminated in Florida, “mental illness can indeed undergird a termination of rights.” In re D.H., 670 So.2d 1072, 1072 (Fla. 2d DCA 1996). Finally, Alexander contains no discussion of the child’s private interests in its analysis. Evjen is factually distinguishable as it involved an episode of hospitalization shortly before trial. In the instant case, the mother had been declared incompetent nearly two months before trial.

The mother also argues that the trial court erred in denying her a continuance and that the trial court misconstrued Florida Rule of Juvenile Procedure 8.240. “[A] trial court has broad discretion in granting or denying a continuance.” In re D.S., 849 So.2d 411, 413 (Fla. 2d DCA 2003). Rule 8.240(d)(5) states:

[Proceedings may not be continued or extended for more than a total of 60 days for all parties within any 12-month period. A continuance or extension of time standards beyond 60 days in any 12-month period may be granted only on-a finding by the court of extraordinary circumstances and that the continuance or extension of time standards is necessary to preserve the constitutional rights of a party or that there is substantial evidence demonstrating that the child’s best interests will be affirmatively harmed without the granting of a continuánce or extension of time.

The record demonstrates that the trial court understood the rule and concluded that the- mother failed to show “extraordinary circumstances.” We cannot say the trial court’s finding was an abuse of discretion where the following were present: the mother’s mental illness was the underlying reason for initiating dependency proceedings in the first place, the reason for terminating the mother’s parental rights was her failure to comply with her mental health treatment, and the mother had been incompetent for nearly two months.

In summary, under the facts of this case, the trial court did not err in proceeding with the mother’s termination of parental rights trial. We further conclude that the trial court did not err in denying the mother a continuance.

Affirmed.

Gerber, C.J., and Conner, J., concur.

      . In addition, the trial court found the mother had abandoned the child and was a threat to the child’s safety. The mother does not appeal the trial court’s findings. The trial court also terminated the father’s parental rights at the same hearing, We affirmed his termination. B.S. v. Dep’t of Children & Families, 4D17-932 (Fla. 4th DCA July 19, 2017).

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


author: Taylor, J.

text:
    Kerven CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-658
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Kerven Charles appeals his convictions and sentences for robbery with a weapon (Count I), false imprisonment of a victim under 13 while in possession of a weapon (Count II), burglary with assault while in possession of a weapon (Count IV), two counts of aggravated assault with a deadly weapon (Counts V and VI), and petit theft (a lesser included offense of Count VII). These charges, filed in the same information, stemmed from three criminal episodes that constituted a crime spree.

We conclude that the trial court did not abuse its discretion in denying appellant’s motion to sever Counts I—III, as those offenses were part of the same crime spree as Counts IV-VII. Further, although the trial court severed Count VIII, burglary while armed, the trial court did not abuse its discretion in admitting evidence related to that offense, as it was inextricably intertwined with the charged crimes and was relevant evidence of flight and concealment. Finally, we hold that the trial court conducted a sufficient competency hearing and made an independent finding that appellant was competent to proceed. We remand, however, for entry of a written competency order.

The Francois Incident (Counts I—III)

At around noon on February 4, 2013, Dieunata Francois returned home with her four-year-old son and parked the church van she was driving. Appellant approached Ms. Francois outside, set down a black duffle bag, and demanded money. Ms. Francois asked appellant what he was talking about. Appellant then pulled a machete out of the duffle bag and told Ms. Francois, “[I]f you don’t give me your money, I will chop you up.” Ms. Francois replied that she did not have any money.'

While still holding the machete, appellant grabbed Ms. Francois’s son by the collar and again threatened to hurt her if she did not give him money. The child began screaming and crying. Ms. Francois spoke with appellant for about 15 to 35 minutes, trying to persuade him to stop what he was doing, Ms. Francois gave appellant her wallets and showed him that she did not have any money. Appellant returned the wallets. Ms. Francois promised not to call the police if appellant let them go. Appellant released Ms. Francois’s son and walked away with the black duffle bag.

The Spector Incident (Counts IV-VII)

At 12:30 pin. that same day, not far from Ms. Francois’s house, Gregory Guzzo had an appointment with Harold and Jam ice Spector to provide an estimate on the cost 'of repairing fire damage to their home. While Mr. Guzzo was parked in front of the Spectors’ home waiting for them to arrive, appellant approached Mr. Guzzo and told him that he needed some work done on property he had- purchased in the neighborhood. Mr. Guzzo informed appellant that he had an appointment at that time, but could look at appellant’s home later.

The Spectors then arrived and Mr. Guz-zo began speaking -with them in the driveway. Appellant walked up the driveway and continued to ask Mr. Guzzo about performing repairs on his house. Mr, Guz-zo told appellant that he was with clients. Mr. Guzzo handed appellant his. business card and asked appellant to give him a call in about an hour. Appellant walked back down the driveway and left. During these encounters outside the Spectors’ home, appellant carried a black bag.

Mr. Guzzo and the Spectors went inside the home to- view the damage. Shortly thereafter, appellant came to the front door and -said he had a few more questions about the neighbórhood. Mrs. Spector met appellaiit at the front door and told him, “I really- can’t talk to you because my house just burnt down.”

Appellant then reached into his duffle. bag, pulled out a machete, held it against Mrs. Spector’s throat, and told her to give him money or else he would kill her. Mrs. Spector ran back inside towards her husband, screaming that appellant had a knife and was going to kill her. Mr. Spector pushed his wife, into the bathroom and closed the door.

Appellant approached Mr. Guzzo and Mr, Spector, demanding money from them. Appellant held the machete close to Mr. Spector’s stomach and said, “[G]ive me money or I’ll fling kill you.” Mr. Guzzo threw his wallet to appellant. Appellant picked up the wallet and ran out of the house.

Mr. and Mrs. Spector both called 911. The police arrived and set up a perimeter in the Spectors’ neighborhood.

The Jean Incident (Count VIII)

Ismith Jean, who lived in the same neighborhood as the Spectors, got a ride home from his boss at around 2 p.m. that day. They could not drive all the way to Mr. Jean’s home due to the police presence in the neighborhood, so Mr, Jean’s boss dropped him off a short distance from his home.

When Mr. Jean arrived at his house, he noticed that the front door was unlocked. Mr. Jean entered the house and heard some noise. He looked in his daughter’s room and found appellant. Appellant had ransacked the room.

During the encounter, apipellant told Mr. Jean to “shut up” and “be quiet.” Mr. Jean told appellant to get out or he would call the police. Knowing that the police were already outside, Mr. Jean opened the front door and let appellant leave. Mr, Jean followed appellant out the door and pointed him out for the police, who immediately apprehended him.

Mr. Jean later found a black duffle bag on his back porch. The bag did not belong to Mr. Jean and he had never seen it before. Mr. Guzzo, Mrs. Spectór, and Ms. Francois all testified that the bag recovered from Mr. Jean’s home looked like the same bag that appellant was carrying during their encounters with him.

Motions to Sever and to Exclude the Contents of the Duffle Bag

While appellant was representing himself, he 'filed a pro se motion to sever Count VIII—i.e., the charge that appellant committed a burglary of the-Jean residence. The trial court granted the motion to sever Count VIII, but ruled that evidence related to the Jean burglary would be admissible as evidence of flight, hiding from police, and consciousness of guilt.

Before appellant’s second trial (the first ended in a mistrial), the defense moved- to sever Counts I, II, and III—i.e., the charges related to the Francois incident. Defense counsel conceded that the charges were properly joined, but argued that the inquiry “doesn’t end there” and that appellant was entitled to have separate trials to prevent prejudice. The trial court denied the motion to sever Counts I, II, and III, ruling that the charges .were part of a crime spree and were connected .by temporal proximity, location, and the nature and manner of criminal activity.

The defense later moved to exclude the contents of the black duffle bag, which included a knife, rope, duct tape, and condoms. The trial court ruled that the contents of the bag were admissible, except for the condoms, because they were relevant to the burglary charge. The court agreed .to give a limiting instruction that the contents were relevant solely to that charge.

On appeal, appellant challenges’two rulings of the trial court:' (1) the denial of appellant’s motion to sever Counts I—III, which related to the Francois incident; and (2) the admission of evidence regarding Count VIII, which had been severed and which related to the Jean incident. Appellant maintains that none of the criminal episodes were related, but rather were “random acts by a likely mentally ill person.”- He further argues that severance of Counts I—III was necessary for a fair determination of his guilt or innocence, and that the admission of evidence of the Jean incident was more prejudicial than probative.

The ■ State responds that the trial court properly denied appellant’s motion to sever Counts I—III, as the charges were part of a crime spree and were connected by temporal proximity, location, and the type and manner of criminal activity. The State further argues that the trial court properly admitted evidence relating to the Jean incident, such as appellant hiding in Mr.. Jean’s home and telling him to be quiet, as such evidence was evidence of flight and concealment and was relevant to show consciousness of guilt.

Standard of Review

“The decision to grant or deny a motion for severance rests within the sound discretion of the trial court.” Smithers v. State, 826 So.2d 916, 923 (Fla. 2002). Likewise, a trial court’s rulings on the admissibility of evidence will not be disturbed absent an abuse of discretion. Thomas v. State, 748 So.2d 970, 982 (Fla. 1999).

Denial of Motion to Sever Counts I—III (the Francois Incident)

For offenses to be properly charged in a single indictment or information, they must meet the requirement for joinder set forth in Florida Rule of Criminal Procedure 3.150. Crossley v. State, 596 So.2d 447, 449 (Fla. 1992). “Two or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R. Crim. P. 3.150(a).

The “connected acts or transactions” requirement in rule 3.150(a) calls for the charges joined for trial to be considered in an episodic sense. Garcia v. State, 568 So.2d 896, 899 (Fla. 1990). Furthermore, “for joinder to be appropriate the crimes in question must be linked in some significant way.” Ellis v. State, 622 So.2d 991, 1000 (Fla. 1993). “This can include the fact that they occurred during a ‘spree’ interrupted by no significant period of respite, ... or the fact that one crime is causally related to the other, even though there may have been a significant lapse of time.” Id.

“Courts may consider the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.” Garcia, 568 So.2d at 899 (citation and internal quotation marks omitted). Nevertheless, “interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.” Id. Even where joinder is otherwise proper, a defendant is entitled to have separate trials upon a showing that severance is “necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” Fotopoulos v. State, 608 So.2d 784, 790 (Fla. 1992). “The danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other.” Crossley, 596 So.2d at 450. Accordingly, a trial judge “must be careful that there is a meaningful relationship between the charges of two separate crimes before permitting them to be tried together.” Id.

The Florida Supreme Court’s opinion in Bundy v. State, 455 So.2d 330 (Fla. 1984), abrogated on other grounds by Fenelon v. State, 594 So.2d 292 (Fla. 1992), provides a quintessential example of a “crime spree.” In that case, serial killer Ted Bundy went on a rampage in housing facilities near Florida State University in Tallahassee. Id. at 334. Bundy attacked four women, killing two, in a sorority house, and then, roughly an hour later, went to an apartment a few blocks away and attacked a fifth woman. Id. All of the women were bludgeoned with a blunt weapon. Id. The supreme court held that the crimes were connected and constituted a single uninterrupted crime spree for purposes of consolidation:

In determining whether two acts or transactions are connected for purposes of consolidation, this Court has considered the temporal and geographical association, the nature of the crimes, and the manner in which they were committed .... Here the crimes occurred within a few blocks of each other and within the space of a couple of hours. The crimes were similar in that they involved a person entering the residences of female students in an off-campus neighborhood and beating young white women with a club as they slept. Hence the criminal acts are connected by the close proximity in time and location, by their nature, and by the manner in which they were perpetrated.

Id. at 345 (citations omitted).

Offenses that occur during a “crime spree” may be tried together when they share a high degree of similarity or a causal link. See Rolling v. State, 695 So.2d 278, 295-96 (Fla. 1997) (holding that murders of five college students within a 72-hour period by serial killer Danny Rolling were properly joined as a “spree” for penalty phase purposes); Fotopoulos, 608 So.2d at 789-90 (finding that murder and attempted murder charges were connected in an episodic sense where defendant used a videotape of an accomplice murdering one victim as leverage to force the accomplice to attempt a second murder); Rohan v. State, 696 So.2d 901, 903 (Fla. 4th DCA 1997) (concluding that two burglaries of separate residences of two women were committed during a “spree” where they were committed within a period of less than one hour, the crimes were not interrupted by a significant period of respite, the first burglary provided a causal link to the defendant’s more aggressive entry at the second residence, and a strong similarity existed between the crimes), abrogated on other grounds by State v. Smith, 840 So.2d 987 (Fla. 2003).

Here, the trial court did not abuse its discretion in denying appellant’s motion to sever Counts I—III. The crimes committed in the Francois incident (Counts I—III) and the Spector incident (Counts III-VII) constitute a crime spree under Bundy and its progeny. As the trial court recognized, the crimes were extremely close in geographic proximity, temporal proximity, and similar in the manner in which they were committed. The two incidents occurred within a few blocks of each other. They occurred within about a thirty-minute span, with no significant period of respite, as the Spector incident occurred almost immediately after the Francois incident ended. Finally, the two incidents were extremely similar; in both incidents, appellant pulled a machete out of a black duffle bag, threatened the victims with the machete, and demanded money.

Moreover, there was no showing that severance was necessary to promote a fair determination of appellant’s guilt or innocence. Even if there had been separate trials, evidence of each incident would have been admissible at the trial of the other for the following purposes: (1) as evidence of the perpetrator’s identity; (2) to show a common scheme and motive; and (3) to show the entire context of crimes that were inextricably intertwined.

Admission of Evidence Related to Count VIII (the Jean Incident)

“When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred ,from such circumstance.” Straight v. State, 397 So.2d 903, 908 (Fla. 1981). “Where there is a sufficient nexus between flight and the crime with which a defendant is charged, evidence of flight is relevant to infer consciousness of guilt.” Rutherford v. State, 902 So.2d 211, 215 (Fla. 4th DCA 2005).

Additionally, one category of admissible evidence of uncharged crimes is known as dissimilar fact evidence. McGirth v. State, 48 So.3d 777, 787 (Fla. 2010). Dissimilar fact evidence is not Williams rale evidence, but instead is “evidence of uncharged crimes which are inseparable from the crime charged” or “evidence which, is inextricably intertwined with the crime charged.” Griffin v. State, 639 So.2d 966, 968 (Fla. 1994). Such evidence is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue” and it “is necessary to admit the evidence to adequately describe the deed.” Id. (quoting Charles W. Eh-rhardt, Florida Evidence § 404.17 (1993 ed.)).

“Dissimilar fact evidence of uncharged misconduct—which is governed by section 90,402*s general rule of relevancy— is admissible to establish the relevant context in which the charged criminal acts occurred.” Gosciminski v. State, 132 So.3d 678, 694 (Fla. 2013) (citation, internal quotation marks, and alterations omitted). Notice of intent to offer Williams rule evidence “is not required if the State seeks to introduce evidence of collateral acts which are inextricably intertwined with the crime charged under the general rale of relevance.” Tripoli v. State, 50 So.3d 776, 779-80 (Fla. 4th DCA 2010).

“Evidence is inextricably intertwined if the evidence is necessary to (1) adéquately describe the deed; (2) provide an intelligent ' account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up' to the charged crime(s).” McGee v. State, 19 So.3d 1074, 1078 (Fla. 4th DCA 2009) (citation and internal quotation marks omitted). For example, inextricably intertwined evidence concerning the circumstances surrounding the charged crime may be admitted as evidence of the perpetrator’s identity. See Dorsett v. State, 944 So.2d 1207, 1215 (Fla. 3d DCA 2006) (collateral crimes evidence of prior drag sales that occurred during the same surveillance of the parking lot was inextricably intertwined and relevant to the only material issue in dispute—whether the officer was mistaken as to the identity of the seller).

Here, the trial court did not abuse its discretion in admitting evidence concerning the Jean incident, including the evidence relating to the black duffle bag.

First, the evidence concerning the Jean incident—i.e., that appellant was hiding in Mr. Jean’s home at a time when the police had established a perimeter in the neighborhood—was relevant evidence of flight and concealment. In light of the nexus between the charged crime and appellant’s entry into the Jean home, the evidence was relevant to show consciousness of guilt.

Second, the Jean incident was -inextricably intertwined with the crimes arising from the Francois and Spector incidents. Evidence concerning the Jean incident was necessary to provide an intelligent account of the charged crimes. The evidence of the Jean incident was not admitted to prove appellant’s bad character. Rather, this evidence was admitted to show a chronological chain of events that culminated in appellant’s capture and the discovery of a black duffle bag at the Jean residence—a duffle bag that looked the same as the one appellant was carrying during the charged crimes. The contents of the bag were relevant to the perpetrator’s intent, and the discovery of the bag at the Jean residence was relevant to the perpetrator’s identity.

We therefore conclude that the trial court did not abuse its discretion in denying appellant’s motion to sever Counts I-III, as those offenses were part of the same crime spree as Counts IV-VII. Further, although the trial court severed Count VIII, the trial court did not. abuse its discretion in admitting evidence related to that offense, as it was inextricably intertwined with the charged crimes and was relevant evidence of flight and concealment.

Determination of Appellant’s Competency

Appellant also argues that the trial court’s third and last determination of appellant’s competency failed to comport with the rules of criminal procedure. Additional facts are relevant to this issue.

Before the first trial in this matter,' the trial court ordered multiple examinations of appellant’s competency and twice found appellant to be competent “[biased on the proceedings before the Court and the stipulation between the parties.”

At the outset of the first trial, appellant elected to represent himself with the. Public Defender’s Office acting as standby counsel. Based on the Faretta colloquy and the motions appellant had filed in the case, the trial court found appellant competent to represent himself.

Appellant engaged in disruptive behavior during the first trial. The trial court appointed the Public Defender’s Office to represent appellant, finding that while appellant was competent to proceed as a defendant, he was no longer competent to represent himself as an attorney. The trial court granted defense counsel’s request for a competency evaluation of appellant and granted counsel’s motion for a mistrial.

During the discussion on appellant’s competency, defense counsel believed appellant’s evaluation should occur in a “rush.” The trial court wanted an expert to evaluate. appellant that day and, if the expert reported back that appellant was not competent, then the court would refer appellant to mental health court. The trial court ordered an evaluation by a “single doctor.” The trial court directed that the experts who had previously evaluated appellant be contacted first. If they were not available, additional calls would be made to find someone who could perform the evaluation that day.

The trial court later noted that calls to the experts who had previously examined appellant were unsuccessful, but that Dr. Brannon was available to examine appellant that night. The trial court concluded the hearing by indicating that if Dr. Bran-non found that appellant was not. competent, then no other dates would be set and the appellant would be referred to mental health court. There was no objection to this procedure by either party.

At a subsequent hearing on July 31, 2014, the trial court recounted the procedural history of the case and made a finding on the record that appellant was competent to proceed:

THE COURT: ,.. [T]he Court made a determination ... based on comments made by Mr. Charles in the course of that hearing, that he no longer was competent to represent himself.
I then immediately put [defense counsel] on the case, and she made two requests of the Court as [appellant’s] attorney. One was to have him ¿xamined by a psychologist or psychiatrist concerning his present competency to proceed. And then the second request was to suspend the motion to suppress and to continue the trial. All three requests of [defense counsel] were granted by the Court. With respect to the competency, the Court tried—the reason I had called around to try to find someone because it was my intent to see if we could go forward as soon as possible, and I wanted to get somebody who could get an examination done as quickly as possible, and I don’t—I know I have included here—it’s a doctor out of Fort Lauder-dale.
[DEFENSE COUNSEL]: It’s Dr. Brannon.
THE COURT: Dr. Brannon. Dr. Bran-non agreed to do it quickly, but it really wasn’t so quick. It took a couple of weeks to get his report back. I did get his report back. I did get his report back. It indicated that his finding was that the defendant was competent and is competent. And so, his adjudication of competency continues. I do find, unless there is a request for anything else with respect to proceeding forward that he, in fact, remains competent. He had never been adjudged incompetent prior to the hearing.

The parties did not request to address the competency issue further, and instead proceeded with testimony relevant to a motion to suppress.

The trial court did not enter a written order finding appellant competent.

On appeal, appellant argues that the trial court reversibly erred in failing to hold a hearing concerning appellant’s third competency evaluation, appointing only one examiner to evaluate appellant, failing to include the examiner’s report in the court file, and failing to issue a written order of competency.

In response, the State argues “that there was a hearing, that the trial court and counsel had received Dr. Brannon’s evaluation, and that the trial court made an independent finding of competency at the hearing.”

The issue of whether the trial court erred in failing to hold a competency hearing is reviewed de novo. Presley v. State, 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

When a trial court “has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.” Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011). The trial court “may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing.” Fla. R. Crim. P. 3.210(b).

Once the trial court appoints experts to examine the defendant’s competency, the trial court may not proceed against the defendant without holding a competency hearing and ruling on the defendant’s competency. See Silver v. State, 193 So.3d 991, 992 (Fla. 4th DCA 2016) (“We vacate the challenged convictions and sentences because the trial court appointed experts to examine Silver to determine whether he was competent to proceed, but never held a competency hearing or ruled on his competence before he was tried.”); Blaxton v. State, 188 So.3d 48, 48-49 (Fla. 1st DCA 2016) (reversing for further proceedings where, although it was undisputed that a competency evaluation was completed, the report had not been filed in the lower tribunal and “the record does not reflect that the requirements of judicial review and adjudication of competency were met below”); see also Presley, 199 So.3d at 1018 (where the trial court merely acknowledged that it had been advised by the Department of Children and Families that the defendant was restored to competency, the trial court did not hold the necessary competency hearing and did not make an independent determination of the defendant’s competency before proceeding against Mm).

A trial court has the duty to make an independent determination of a criminal defendant’s competency to proceed. Dougherty v. State, 149 So.3d 672, 673 (Fla. 2014). A defendant cannot stipulate to the ultimate issue of competency, because “[accepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant’s competency to stand trial.” Id. at 678. “Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant’s competency, and must enter a written order if the defendant is found competent to proceed.” Id. at 679.

A defendant cannot, either expressly or implicitly, waive the right to a competency hearing. Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016). During the competency hearing, “[t]he experts preparing the reports may be called by either party or the court, and additional evidence may be introduced by either party.” Fla. R. Crim. P. 3.212(a). Moreover, “[t]he experts appointed by the court shall be deemed court witnesses whether called by the court or either party and may be examined as such by either party.” Id.

We have explained that “[a] status hearing may constitute a sufficient competency hearing if the court reviews a written competency evaluation at the parties’ direction and makes an independent finding that the defendant is competent to proceed.” Presley, 199 So.3d at 1018. For example, a trial court conducted a sufficient competency hearing where, although the court did not call experts, both parties directed the court to key language in the competency report, the court noted that it had reviewed the evaluation, and the court specifically stated that the defendant was competent to proceed. Merriell v. State, 169 So.3d 1287, 1288 (Fla. 1st DCA 2015). Likewise, a trial court conducted a sufficient competency hearing where the court made an oral determination that the defendant was competent after considering the experts’ reports, the statements of defense counsel, and the defendant’s demeanor. Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016).

By contrast, a trial court did not properly decide the issue of competency where the parties stipulated to the defendant’s restored competency and the court conducted its own review of the doctor’s report, but “neither party stipulated to the contents and admission of the doctor’s report,” and there was never “any form of agreement between the' parties and the judge to decide the issue of competency on the basis of the written report alone.” S.B. v. State, 134 So.3d 528, 530 (Fla. 4th DCA 2014).

Here, the record reflects that the trial court addressed appellant’s competency at the July 31, 2014 hearing, that the trial court had received and reviewed Dr. Brannon’s evaluation finding appellant to be competent, and that the trial court made an independent determination that appellant remained competent to proceed. Notably, appellant was never determined to be incompetent at any point during the case, and the trial court had ample opportunity to observe appellant when he was representing himself. Moreover, at the conclusion of the hearing, the trial court specifically stated: “I do find, unless there is a request for anything else with respect to proceeding forward that he, in fact, remains competent.”

Although there was not an express stipulation to decide the issue of competency solely on the basis of Dr. Brannon’s report, it appears from the record that the parties and the judge agreed to decide the issue of competency on the basis of the written report alone. Before concluding the competency hearing, the trial court specifically asked if there was “a request for anything else with respect to proceeding forward ..., ” The parties’ silence in the face of this clear opportunity to request either live testimony or additional competency evaluations demonstrates that the parties agreed to the trial court’s procedure of deciding the issue of competency on the basis of Dr. Brannon’s written report alone.

We also note that, contrary to appellant’s suggestion, the trial court was not required to appoint a minimum of: two experts. See Tita v. State, 42 So.3d 838, 840 (Fla. 4th DCA 2010) (explaining that the relevant statute and rule of criminal procedure were amended to remove the requirement for a court to appoint no-fewer than two experts).

Finally, the fact that Dr. Brannon’s report was not.filed in the record does not mean that the issue of competency was improperly determined. Although in Silver we vacated the defendant’s convictions where “the record contained] no doctor’s reports, no hearing on Silver’s competence, and no order on the matter,” 193 So.3d at 993, in this case the absence of a competency report in the court file is not disposi-tive.. In Silver,, the absence of a competency report in the , record was , merely one factor supporting the conclusion that,the trial court did not adjudicate the issue, of the defendant’s competency.

Here, the record shows that the trial court held a hearing addressing appellant’s competency, reviewed the expert’s competency report, and made an independent determination that appellant was competent to proceed.

Conclusion

Based on the foregoing, we affirm appellant’s convictions. But because the trial court did not enter a written order of competency, we remand the case to the trial court for entry of a nunc pro tunc order finding appellant competent to stand trial. See Holland, 185 So.3d at 637.

Affirmed and Remanded for entry of a nunc 'pro tunc competency order.

Ciklin and May, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . Judge Kastrenakes, a predecessor judge, determined appellant’s competency.

      . Faretta v. California, 422 U.S. 806, 95. S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: PER CURIAM.

text:
    David Wayne PRICE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4763
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017.
   PER CURIAM.

' Affirmed. See Summers v. State, 817 So.2d 950 (Fla. 2d DCA 2002); Wallace v. State, 618 So.2d 797 (Fla. 2d DCA 1993).

NORTHCUTT, BLACK, and LUCAS, JJ., Concur.


text:
    Jessie MIXON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4831
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Sweet v. State, 987 So.2d 747 (Fla. 2d DCA 2008); Blocker v. State, 968 So.2d 686 (Fla. 2d DCA 2007); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

WALLACE, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    Robert James SPEARS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4838
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
    Robert James Spears, pro se.
   PER CURIAM.

Affirmed. See Martin v. State, 987 So.2d 141 (Fla. 2d DCA 2008); McGuire v. State, 979 So.2d 262 (Fla. 2d DCA 2007).

WALLACE, SALARIO, and BADALAMENTI, JJ., Concur.


author: SCALES, J. SCALES, J.

text:
    Antonio DOLL, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D17-890
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Order Issued June 14, 2017

      Antonio Doll, in proper person.
    Pamela Jo Bondi, Attorney General, for respondents.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

Antonio Doll petitions this Court for a writ of habeas corpus, claiming that he is entitled to immediate release from prison because he was improperly designated a habitual violent felony offender and that his sentences are otherwise illegal. For the reasons stated below, we deny Doll’s instant petition for a writ of habeas corpus and order Doll to show cause why this Court should not prohibit him from making further pro se filings to this Court in circuit court case number 91-37881.

In November 1992, the jury found Doll guilty of burglary of a structure with a firearm and aggravated assault. At .the sentencing hearing held in December 1992, the trial court designated Doll a habitual violent felony offender, sentencing him to thirty years in prison with a fifteen, year minimum mandatory on the burglary conviction, and to ten years in prison with a three year minimum mandatory on the aggravated assault conviction. The court ordered the ten years to run consecutive to the thirty years, and the minimum manda-tories to run concurrently.

This Court affirmed Doll’s convictions and sentences on direct appeal. See Doll v. State, 626 So.2d 221 (Fla. 3d DCA 1993) (table). Since that time, Doll has filed in this court at least thirteen postconviction appeals or petitions.

The instant petition argues that Doll’s underlying sentences are illegal because the trial court’s ■written order imposing the sentences does not comport with its oral pronouncements at the sentencing hearing. This court recently denied this very claim in appellate case number 3D15-2515. See Doll v. State, 207 So.3d 238 (Fla. 3d DCA 2015) (table). Doll also claims that he was improperly designated a habitual violent felony offender. This court rejected this very claim in appellate case number 3D04-1854. See Doll v. State, 917 So.2d 881 (Fla. 3d DCA 2005). We deny the instant petition.

ORDER TO SHOW CAUSE

Doll is hereby directed to show cause, within forty-five days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, petitions, motions or other proceedings related to his criminal sentencing in circuit court case number 91-37881.

If Doll does not demonstrate good cause, any such further and unauthorized filings by Doll will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).

Petition denied. Order to show cause issued.

SCALES, J.

On May 10, 2017, this Court issued an opinion denying Antonio Doll’s petition for writ of habeas corpus. Our opinion contained an order to show cause why Doll should not be prohibited from filing with this Court any further pro se appeals, petitions, motions or other proceedings related to his criminal sentence in circuit court case number 91-37881.

Doll responded by filing with this Court a response to the order to show cause, again raising his contention that: (1) his underlying sentences are illegal because the trial court’s written order imposing the sentences do not comport with its oral pronouncements at the sentencing hearing; and (2) he was improperly designated a habitual violent felony offender. Other than attaching a corrected sentencing order to his response—which further confirms no error on the part of the trial court in conforming the written sentence to its oral pronouncements—Doll’s response raises no new information or argument for our consideration. This matter is well settled on the merits. See Doll v. State, No. 3D17-890, 223 So.3d 331, 2017 WL 1927732 (Fla. 3d DCA May 10, 2017). Accordingly, we conclude that Doll has not shown good cause to justify further pro se filings of appeals, petitions, motions or other proceedings with this Court.

Our responsibility is to balance Doll’s pro se right of access to courts with this Court’s need to devote its finite resources to legitimate appeals and petitions, recognizing the seriousness of the sanction when the litigant is a criminal defendant. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). After an order to show cause and an opportunity for the criminal defendant to respond, this Court may prevent further such filings. Id.

We direct the Clerk of the Third District Court of Appeal to refuse to accept from Doll any further pro se filings related to circuit court case number 91-37881; provided, however, that the Clerk of the Third District Court of Appeal may accept filings related to circuit court case number 91-37881 if. such filings have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

. Any further and unauthorized pro se filings by Doll will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it for disciplinary action, pursuant to section 944,279(1) of the Florida Statutes.

Order issued.

      . At the sentencing hearing, Doll also pled guilty to possession of a firearm by a convicted felon, receiving credit for time served.

      . Doll v. State, 207 So.3d 238 (Fla. 3d DCA 2015) (denying petition for writ of habeas corpus) (table); Doll v. State, 147 So.3d 1001 (Fla. 3d DCA 2014) (denying petition for writ of habeas corpus) (table); Doll v. State, 107 So.3d 418 (Fla. 3d DCA 2013) (denying rule 3.800 postconviction motion) (table); Doll v. State, 106 So.3d 944 (Fla. 3d DCA 2013) (denying petition for writ of certiorari) (table); Doll v. State, 76 So.3d 301 (Fla. 3d DCA 2011) (denying petition writ of habeas corpus) (table); Doll v. State, 75 So.2d 736 (Fla. 3d DCA 2011) (denying petition for writ of habe-as corpus) (table); Doll v. State, 60 So.3d 401 (Fla. 3d DCA 2011) (denying rule 3.800 post-conviction motion) (table); Doll v. State, 38 So.3d 148 (Fla. 3d DCA 2010) (denying rule 3.850 postconviction motion) (table); Doll v. State, 11 So.3d 956 (Fla. 3d DCA 2009) (denying rule 3.850 postconviction motion) (table); Doll v. State, 965 So.2d 137 (Fla. 3d DCA 2007) (denying rule 3.800 postconviction motion) (table); Doll v. State, 917 So.2d 881 (Fla. 3d DCA 2005) (denying rule 3.800 post-conviction motion); Doll v. State, 700 So.2d 696 (Fla. 3d DCA 1997) (denying rule 3.850 postconviction motion) (table); Doll v. State, 654 So.2d 928 (Fla. 3d DCA 1995) (denying rule 3.850 postconviction motion) (table).


author: WALLACE, Judge.

text:
    COLLIER HMA PHYSICIAN MANAGEMENT, LLC, d/b/a Physicians Regional Medical Group, a Florida limited liability company, Appellant, v. Brian MENICHELLO, M.D., an individual, Appellee.
    Case No. 2D16-1204
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017
    Alan D. Lash, Martin B. Goldberg, Lorelei J. Van Wey, and Justin C. Fineberg, of Lash & Goldberg LLP, Miami, for Appellant.
    Lawrence A. Farese and Michael R. Whitt, of Robins Kaplan LLP, Naples, for Appellee.
   WALLACE, Judge.

In this case we are called upon to determine the enforceability of a restrictive covenant in an employment agreement between Collier HMA Physician Management, LLC, d/b/a Physicians Regional Medical Group, a Florida limited liability company (Collier HMA), and Brian Meni-chello, M.D. (Dr. Menichello). Collier HMA appeals the. circuit court’s final summary judgment in favor of Dr. Menichello entered on the theory that the restrictive covenant was unenforceable because Collier HMA was a “successor” employer and the employment agreement did not expressly authorize enforcement of the covenant by an assignee or successor as required under section 542.335(l)(f), Florida Statutes (2012). Because the circuit court erred in basing its ruling on what it deemed to be the “substance” of a merger transaction involving Collier HMA’s ultimate parent instead of on traditional principles of corporate law, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Collier HMA is a Florida limited liability company with its principal place of business in Collier County. The company owns and operates a health care business that employs approximately forty physicians and operates two hospitals. Collier HMA also has two full-service medical clinics, one in Naples and one in Bonita Springs.

Dr. Menichello is a medical doctor licensed to practice medicine in Florida. In September 2012, Collier HMA entered into an Employment Agreement (the Agreement) with Dr. Menichello. In accordance with the Agreement, Dr. Menichello was to practice medicine at Collier HMA and its two hospitals. The term -of the Agreement was for three years, but it was terminable by either party on ninety days’ notice.

The Agreement, as amended, included a restrictive covenant that provided in pertinent part, as follows;

6.7. Restrictive Covenant. During the term of this Agreement, and for the 12-month period after this Agreement expires or is terminated, you won’t have any financial- relationship, including, without limitation, as an employee or independent contractor, with Naples Community Hospital, Inc., Lee Memorial Health System or Millennium Physician Group, -nor any organization that ■directly or indirectly controls, is controlled by, or is under common control with, Naples Community Hospital, Inc., Lee Memorial Health System or Millennium Physician Group.

Notably, the Agreement-does not provide that it is binding upon and enforceable by the successors and assigns of the parties. Instead, the Agreement expressly provides to the contrary:

6.11. No Third-Party Beneficiaries.
The terms and provisions of'this Agreement are intended solely for the benefit of you and us. It is not the intention of the parties to confer third-party beneficiary rights upon any other person.

The absence of a provision for the enforcement of the Agreement by the successors and assigns of the parties is pertinent to their arguments regarding the enforceability of the restrictive covenant under section 642.335(1)00.

In September 2012, when the parties entered into the Agreement and Dr. Meni-chello began the three-year term of his employment, Collier HMA was part of a large group of medical businesses that were ultimately controlled by Health Management Associates, Inc. (HMAI), a Delaware corporation with its headquarters and principal place of business in Naples. During the term of the Agreement, Community Health Systems, Inc. (CHS), effected a merger transaction whereby it acquired control of all of the businesses in the chain that were previously subject to the ultimate control of HMAI. An explanation of.the ownership of Collier HMA and its place in the family of several other companies related to it both before and after the merger is necessary to an understanding of the parties’ arguments and the issue to be decided.

As is often the case with medical businesses, the structure of these companies was and remains characterized by multiple levels or tiers of ownership. At the first tier, Collier HMA owned and operated the business where Dr. Menichello was employed. At the second tier up the chain, Collier HMA was owned by a single member, Southwest Florida HMA Holdings, LLC. At the third tier, that entity was owned by Health Management Associates, LP. At the fourth tier, Health Management Associates, LP, was owned by Health Management General Partner, LLC. At the fifth tier, that entity was owned by Collier HMA’s ultimate parent company, HMAI. The stock of HMAI was publicly traded. Thus, the equity interest in HMAI changed hands regularly. By contrast, the ownership of Collier HMA and the other companies in the multi-tiered ownership structure remained constant.

The merger by which CHS acquired HMAI, the ultimate parent of Collier HMA at the top tier of the ownership structure, occurred in January 2014. This transaction was structured as follows: CHS caused to be created a wholly-owned subsidiary named FWCT-2 Acquisition Corporation (FWCT-2). Upon approval of the merger by the necessary parties, FWCT-2 merged with and into HMAI, with the result that HMAI survived as a wholly-owned subsidiary of CHS.

After the merger, the stock of HMAI was no longer publicly traded. But HMAI survived the merger and continued to operate, as did all of the subsidiaries in the chain of ownership below HMAI. Obviously, there was a change in the ownership of HMAI, but there was no change in the ownership of its subsidiary companies, including Collier HMA. Indeed, Collier HMA continued to exist and to operate the medical practice, with Southeast Florida HMA Holdings, LLC, as its sole member, just as before the merger. Also, just as before, Dr. Menichello continued to be employed by and to receive his compensation from Collier HMA.

After the CHS merger, Dr. Menichello became dissatisfied with certain aspects of the continued operations of Collier HMA. Although we need not detail Dr. Menichel-lo’s complaints here, they related primarily to a claimed insufficiency in staffing and other services that he believed were necessary to the optimum operation of his practice. On September 24, 2014, Dr. Menichel-lo gave Collier HMA ninety days’ written notice of his intention to terminate the Agreement without cause effective December 24, 2014. Afterwards, Collier HMA learned that Dr. Menichello intended to begin working for Naples Community Hospital, Inc. (NCH), or one of its affiliates. On October 30, 2014, Collier HMA sent Dr. Menichello a letter reminding him of the provisions of the restrictive covenant in the Agreement. Collier HMA also informed Dr. Menichello of its intent to seek enforcement of the restrictive covenant in the event of a breach. At the end of the ninety-day notice period, Dr. Menichello became employed by NCHMD, Inc., an affiliate of NCH.

On December 29, 2014, Collier HMA filed a Verified Complaint for injunctive relief against Dr. Menichello and a Motion for Temporary Injunction. In particular, Collier HMA sought injunctive relief against Dr. Menichello prohibiting his employment in breach of the provisions of the restrictive covenant. Dr. Menichello filed an answer, affirmative defenses, and a counterclaim for declaratory relief in response to the complaint. Pertinent to the issues in this case, Dr. Menichello raised what the parties characterized as the “successor defense” in his fifth affirmative defense as follows:

Community Health Systems, Inc. (“CHS”) is the successor to Health Management Associates, Inc. (“HMA”) in the ownership, operation, and control of Physicians Regional Healthcare System and affiliated companies, including in particular the Defendant’s former employer, Collier HMA Physician Management, LLC. The Restrictive Covenant does not expressly authorize enforcement by a party’s successors or assigns. Therefore, the Plaintiff, as a subsidiary and affiliate of the successor CHS, lacks standing to enforce the Restrictive Covenant, and this Court must refuse enforcement of the Restrictive Covenant, pursuant to Fla. Stat. § 542.335(l)(f).

Dr. Menichello also asserted the theory of the “successor defense” in his counterclaim seeking declaratory relief against Collier HMA.

The circuit court conducted a hearing over several days on Collier HMA’s motion for a temporary injunction. At the conclusion of the hearing, the circuit court denied the motion. Collier HMA appealed the denial of its motion for temporary injunction, and this court affirmed the circuit court’s order on January 15, 2016. Collier HMA Physician Mgmt., LLC v. Menichello, 185 So.3d 1241 (Fla. 2d DCA 2016) (table decision).

II. THE CIRCUIT COURT’S RULING

Dr. Menichello moved for a partial summary judgment on his successor defense and on his related counterclaim seeking a declaratory judgment that the restrictive covenant was not enforceable. The circuit court granted the motion, ruling as follows:

1. The record evidence establishes beyond dispute that the Defendant’s employer, Collier HMA Physician Management, LLC (“Collier HMA”), was acquired by a third party, Community Health Systems, Inc. (“CHS”), through its wholly owned subsidiaries, during the course of the Defendant’s employment.
2. As a result of its acquisition by CHS during the course of Defendant’s employment, the Plaintiff, Collier HMA, is a “successor” employer within the meaning of Fla. Stat. § 542.335(l)(f).
3. Pursuant to Fla. Stat. § 542.335(l)(f), a restrictive covenant is not enforceable by successors or assigns unless the restrictive covenant expressly authorizes such enforcement.
4. Neither the Employment Agreement at issue in this case, nor the restrictive covenant in particular, au..thorizes enforcement of the restrictive covenant by successors or assigns. .
5, Therefore, the restrictive covenant is not enforceable by the Plaintiff as a matter of law.
6, There is no genuine issue as to any material fact relative to the successor defense and the Defendant is entitled to a judgment as a matter of law on the successor defense and related Counterclaim for Declaratory Judgment.

The circuit court’s written findings do not explain the rationale underlying its conclusion that Collier HMA had become a successor employer. However, the circuit court noted that it based its ruling in part on the testimony and documentary evidence presented at the hearing on the motion for the temporary injunction. At the conclusion of that hearing, portions of the circuit court’s oral ruling provide important clues to its thinking:

And so I think you—you look at form over substance and—or the—you don’t get—reverse that and say you don’t get carried away by looking at the form— formal structure; you look at the substance of it, who really owns it. And— and, obviously, in this case the HMA— original HMA company is—I mean, is definitely owned by another corporate structure.

(Emphasis added.) The circuit court also noted that after the merger, there were certain indicia of a new employer-employee relationship in the mode of operation of Collier HMA. The circuit court noted as an example that Dr. Menichello had been required to submit to a drug screening after the merger as if he had been a new employee of the company. Thus, in applying section 542.335(l)(f) to the question of whether Collier HMA had become a successor entity after the merger, the circuit court viewed its task as.to ferret out.the substance. of what had occurred rather than to examine the formal structure of the transaction and to determine whether there had been any change in the identity of Dr. Menichello’s employer.-

After the entry of the order granting Dr. Menichello’s motion for summary judgment, the circuit court entered a final summary judgment in his favor. This appeal followed.

III. THE STANDARD OF REVIEW

• The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Pla. 2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law. See id.; Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

IV. COLLIER HMA’S APPELLATE ARGUMENTS

On appeal, Collier HMA. makes three arguments. First, the circuit court misinterpreted . and, misapplied section 542.335(l)(f) in concluding that Collier HMA became a successor employer after the merger so as to preclude it from enforcing the restrictive -covenant. Second, after the merger, Dr. Menichello executed an amendment to the Agreement in which he ratified and reaffirmed all terms and conditions of the Agreement and all prior amendments, including the restrictive covenant. Thus, Collier HMA may enforce the restrictive covenant against Dr. Menichel-lo. Third, and in the alternative, there were' genuine issues of material fact regarding the applicability of the successor defense that precluded the entry of a summary judgment in favor of Dr. Menichello on that issue. Based on our disposition of Collier HMA’s first argument, we need not address its second and third arguments.

V. DISCUSSION

Section 542.335(l)(f), provides as follows:

(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant: •
(f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
1. In the case of a .third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.
2. In the ease of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.

Under the statute, a court may not refuse to enforce a restrictive covenant because the party seeking enforcement is a third-party beneficiary of the contract, an as-signee, or a successor of a party to the contract. See § 542.335(l)(f).- In other words, in accordance with section 542.335(l)(f), as long as the contract expressly provides for enforcement of the restrictive covenant by a third-party beneficiary, assignee, or successor, a court may not refuse enforcement of the restrictive covenant on the ground that the entity seeking enforcement is not a party to the contract. See Cellco P’ship v. Kimbler, 68 So.3d 914, 917 (Fla. 2d DCA 2011); Marx v. Clear Channel Broad., Inc., 887 So.2d 405, 408 (Fla. 4th DCA 2004); Tusa v. Roffe, 791 So.2d 512, 514 (Fla. 4th DCA 2001).

In his Fifth Affirmative Defense and in his counterclaim- for declaratory relief, Dr. Menichello maintained that Collier HMA had become a “successor” within the meaning of section 542.335(l)(f) after the CHS merger. The circuit court agreed. Because the Agreement' did not authorize enforcement of the restrictive covenant by successors, the circuit court ruled that Collier HMA—as a successor—did not have the right to enforce the restrictive covenant against Dr. Menichello. Thus, the question of Collier HMA’s right to enforce the restrictive covenant against Dr. Meni-chello requires us to determine-whether Collier HMA qualified as a successor after the merger within the meaning of the statute.

Section 542.335 does not provide a definition of the term “successor.” The context in which the term is used requires us to seek the meaning of the term as it relates to corporations and other business entities. In this context, the term “successor” denotes “[a] corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.” Black’s Law Dictionary 1660 (10th ed. 2014); see also Corneal v. CF Hosting, Inc., 187 F.Supp.2d 1372, 1375 (S.D. Fla. 2001) (“The term successor ‘is generally applicable to corporations wherein one corporation by a process of amalgamation, consolidation or duly authorized legal succession becomes vested in the rights and assumes the burdens of its predecessor corporation.’ ” (quoting Int’l Ass’n of Machinists & Local Lodge # 954 v. Shawnee Indus., Inc., 224 P.Supp. 347, 352 (W.D. Okla. 1963))).

The status of Collier HMA after the CHS merger does not comport with the standard definition of a successor as it relates to corporations or other business entities. Placing our focus narrowly on Collier HMA, we see that it had not been consolidated with or amalgamated into another company after the merger. And Collier HMA had not acquired the rights of or assumed the burdens of any other entity. Indeed, the undisputed evidence showed that nothing about the corporate structure or ownership of Collier HMA was different after the merger. Collier HMA continued in existence as a single member limited liability company. It did not sell or otherwise transfer any of its assets. One could not identify a successor entity to Collier HMA as defined above because its ownership had not altered and it continued to operate with the same assets and personnel after the merger. Furthermore, Collier HMA had not assigned the Agreement to another entity because no such assignment was required. And if we step back to look at the larger picture, we see that Collier HMA continued to function after the merger as a part of the chain of health care businesses that had been part of the HMAI network.

If we take an even broader view, we must acknowledge that the ownership of HMAI—the ultimate parent of Collier HMA at the top of the multi-tiered chain of companies—did change after the merger. Obviously, CHS had acquired HMAI, the ultimate parent of Collier HMA. But the change in the ownership of HMAI did not cause any change in the ownership of Collier HMA. More to the point, the acquisition of HMAI by CHS did not make CHS the successor to Collier HMA. The argument to the contrary is inconsistent with the proposition that “[a] parent corporation and its wholly-owned subsidiary are separate and distinct legal entities.” Am. Int’l Grp., Inc. v. Cornerstone Buss., Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004) (citing Gladding Corp. v. Register, 293 So.2d 729, 732 (Fla. 3d DCA 1974)). The idea that CHS became a successor to Collier HMA after the merger is also inconsistent with the principle that a parent corporation cannot exercise the rights of its subsidiary. See id. at 336. Notably, Dr. Menichello did not plead or prove that Collier HMA was operated as the mere instrumentality of CHS so as to warrant a disregard of the distinction between Collier HMA and its ultimate parent five or six tiers above it in the chain of ownership. See generally Unijax, Inc. v. Factory Ins. Ass’n, 328 So.2d 448, 454 (Fla. 1st DCA 1976) (discussing the elements that must be proved to establish that a subsidiary entity is the mere instrumentality of the parent).

In response to these points, Dr. Meni-chello argues here—as he did successfully in the circuit court—that a proper application of section 542.335(l)(f) to the merger transaction under review in this case requires us to look at the substance of the transaction, not to the form by which it was structured. Dr. Menichello explains his position as follows:

Here, CHS acquired HMA and all of its subsidiaries by merging HMA into a wholly owned CHS subsidiary. All ownership, control, and management of HMA and its subsidiaries, including Collier HMA, succeeded to CHS as of the date of the transaction. As a result of the merger, CHS, through its wholly-owned subsidiary, became vested with the rights- and duties of HMA. Thus, as the lower court correctly found, CHS is the “successor-by-merger” of HMA and all of its subsidiaries.

(Record references omitted.) Dr. Menichel-lo concedes that Collier HMA survived the merger transaction. Nevertheless, he contends that Collier HMA survived only “as a wholly owned subsidiary and an employment arm of the successor, CHS, a total stranger to the Employment Agreement with Dr. Menichello.” Dr. Menichello concludes that since Collier HMA is now nothing more than a subsidiary of CHS, it does not have the right to enforce the restrictive covenant because of the absence of the necessary authorization for enforcement by successors in the Agreement.

Based on the teaching of the Florida Supreme Court in Corporate Express Office Products, Inc. v. Phillips, 847 So.2d 406 (Fla. 2003), we must reject Dr. Meni-chello’s argument. In Corporate Express, the court affirmed that an analysis of the enforceability of restrictive covenants after a stock purchase, asset purchase, or corporate" merger must be based on “the traditional principles of corporate law.” Id. at 414. In other words, courts must rely on the “form of the commercial transaction” under review in determining the enforceability of a restrictive covenant after the completion of a stock purchase, asset purchase, or corporate merger. Id. The court rejected the Fifth District’s reliance on a “culture and mode of operation” analysis in the case under review. Id The court also expressly disapproved what it characterized as the Fifth District’s substitution of “a novel test of changing corporate identity based on changes in corporate culture and mode of operation for well-established principles of commercial transactions.” Id. (citing Phillips v. Corp. Express Office Prods., Inc., 800 So.2d 618, 620 (Fla. 5th DCA 2001)). After expressing its disapproval of the Fifth District’s substance-over-form analysis, the court explained the rationale for the correct approach to determining the enforceability of a restrictive covenant after the completion of a stock sale, asset sale, or corporate merger- as follows:

Reliance on changes in corporate culture and mode of operation as a measure of whether an employer has changed’ identity and therefore must obtain a consensual assignment of a noncompete agreement would inject unnecessary uncertainty into corporate transactions. Changes in corporate culture occur frequently, often in response to market forces and without a corresponding change in corporate structure. As long as the other prerequisites to the validity of. a noncompete agreement are met, neither a 100 percent stock purchase nor a merger affects the enforceability of the agreement.

Id. Thus, the court rejected the approach adopted by the circuit court that would attempt to ascertain the “substance” of the transaction instead of a more practical focus on the transaction’s structure following traditional principles of corporate and business law.

Accordingly, we must disapprove the effort to determine the question of whether OHS was a successor to Collier HMA by trying to discover what had “really.happened” when the dust settled after CHS’s acquisition of HMAI. Instead, we must focus on what occurred following traditional principles of corporate and business law. As we have seen, the merger transaction concluded with CHS in control of HMAI, Collier HMA’s ultimate parent. Nevertheless, there was no change in the ownership structure or assets of Collier HMA. Granted,. CHS .became the ultimate parent of Collier HMA as a result of the merger, but CHS’s status as the ultimate parent of Collier HMA did not give it the authority to enforce the restrictive covenant in the agreement. See Cellco P’ship, 68 So.3d at 917-18. Viewing what occurred based on traditional principles of corporate law, no other entity emerged from the transaction as a successor to Collier HMA. Tellingly, Dr; Menichello continued to be employed by and to receive his compensation from Collier HMA. And, of course, Collier HMA could not be a successor to itself. As the only other signatory to the Agreement, Collier HMA had the right' to seek enforcement of the restrictive covenant in its own contract. See Chen v. Cayman Arts, Inc., No. 10-80236-CIV, 2011 WL 782279, *8 (S.D. Fla. Feb. 24, 2001). It follows that Dr, Menichello’s successor defense fails as a matter of law.

VI. CONCLUSION

For. the foregoing reasons, the circuit court erred in entering the order granting summary judgment and the final summary judgment in favor of Dr. Menichello. Accordingly, we reverse the. order granting summary judgment and the final summary judgment- and remand this case to the circuit court for further proceedings consistent with this opinion.

Reversed'and remanded.

MORRIS and ¿UCAS, JJ., Concur.

      . The circuit court conducted an evidentiary hearing on Collier HMA's motion for a temporary injunction. However, there has not been a final evidentiary hearing on the merits in • the circuit court. The facts stated in this opinion are drawn from the pleadings, the .transcript of the hearing on. the motion for the temporary injunction, the depositions on file, the affidavits, ■,and other documents in the record. We review these facts in the light most favorable to Collier HMA as the party against whom summary judgmént was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla. 2002).

      . We understand that in Corporate Express the court considered section 542.33, Florida Statutes (1985), the version of the statute applicable to restrictive covenants entered into before July 1, 1996. Section 542.335, Florida Statutes (Supp. 1996), replaced section 542.33 effective July 1, 1996. See ch. 96-257, §§ 1-2, Laws of Fla. Nevertheless, the court’s analysis of the factors to be considered in determining the effect of a stock purchase, asset purchase, or a corporate merger in construing the statute remains generally applicable. See Johnson Controls, Inc. v. Rumore, No. 8:07-CV-1808-T-17TBM, 2008 WL 203575, *7 (M.D. Fla. Jan. 23, 2008) ("In Corporate Express, the Florida Supreme Court determined that a successor corporation’s ability to enforce noncompete agreements entered into between employees and the predecessor corporation depends on the type of business transaction or transfer.”).