text:
    Y.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1935
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.-
   PER CURIAM.

Y.R. was a fifteen-year-old high school student when he was charged with the theft of an iPad from his school in January 2016. Global positioning- software in the device located it in Y.R.’s apartment building, and the high school then determined that no other students lived in that building. Ultimately, Y.R. was charged with grand theft of the iPad and adjudicated delinquent of first-degree petit theft under section 812.014(2)(e), Florida Statutes (2016), applicable when “the property stolen is valued at $100 or more, but less than $300.”

The issue on appeal challenges the sufficiency of the evidence of proof of “value” as defined in section 812.012(10)(a)1., Florida Statutes (2016): “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” Section 812.012(10)(b) addresses the circumstance in which “the value of property cannot be ascertained,” authorizing the trier of fact to find the value to be “not less than a certain amount,” or, “if no such minimum value can be ascertained, the value is an amount less than $100.”

The proof regarding the value of the iPad introduced at the adjudicatory hearing did not establish its value as of the time and place of the offense. That proof also fell short of establishing the cost of the replacement for that type of iPad within a reasonable time after the offense. The teacher who provided the iPad to Y.R. for use at the school on the day it went missing testified that she received it about four months before that day, but she did not know when the school district purchased the device. She didn’t know how much the iPad cost, and she said it had been used continuously (except for the holiday break) during the four months it had been used in her classroom. Neither she nor the school vice principal at the time could identify the model type, storage capacity, or other features of the stolen iPad. The vice principal testified—though his testimony was shown to have been based on a conversation with another school employee rather than personal knowledge—that it would cost $599 to purchase a new iPad.

No witness testified as to depreciation, obsolescence by virtue of the release of a newer iPad model, or bid-asked-sold data in the internet marketplace for a comparable and comparably-used iPad. While this may seem an onerous burden, there can be no doubt that proof of “value” as defined in section 812.012(10) is determinative in classifying the level of the offense.

Here, as in Contes v. State, 190 So.3d 198, 199 (Fla. 3d DCA 2016), “[because the evidence failed to establish the fair market value of the property at the time of the offense, [the defendant] can be convicted only of second-degree petit theft, a second-degree misdemeanor.” We thus remand this case to the trial court to vacate the charge and adjudication of delinquency in count I of the petition of first-degree petit theft and to enter an adjudication of second-degree petit theft. The court should then conduct a disposition hearing on that, adjudication, at which Y.R. has a right to be present.

Reversed and remanded with instructions.

      . Y.R. was also charged with resisting an officer without violence and adjudicated delta-quent on that count, but this appeal only involves the count charging theft.

      . “Electrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices. For this reason, purchase price alone is generally insufficient to establish the value of such property in theft cases.” Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010).


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    James C. DOW, Appellant, v. FIDELITY INVESTMENTS a/k/a Fidelity Brokerage Services, LLC, Connor Evers, Jacob Evers, Erica Evers, Gloria Evers, and Michael Evers, Appellees.
    No. 4D17-436
    District Court of Appeal of Florida, Fourth District.
    August 23, 2017
    James A. Herb and Jennifer L. Fulton of Herb Law Firm, Chartered, Boca Ra-ton, for appellant.
    Gregory S. Sconzo of Kaplan & Sconzo, P.A., Palm Beach Gardens, for appellees Gloria Evers and Michael Evers.
   Gerber, C.J.

The plaintiff appeals from the circuit court’s final order granting with prejudice defendants Gloria Evers’ and Michael Ev-ers’ motion to dismiss the plaintiffs fifth amended complaint against them. In the motion, Gloria Evers and Michael Evers argued that the plaintiffs fifth amended complaint failed to establish personal jurisdiction over them, and faded to state a cause of action against them.

The circuit court granted the motion, finding: (1) the plaintiff failed to satisfy Florida’s long-arm statute, section 48.193, Florida Statutes (2016), because Gloria Ev-ers’ and Michael Evers’ “alleged communications are not tortious in and of themselves and do not give rise to a cause of action to which a Florida court has jurisdiction”; and (2) “even if Plaintiff had satisfied the requirements of the long-arm statute ... Plaintiff has failed to establish adequate minimum contacts for this Court to exercise jurisdiction” over Gloria Evers and Michael Evers.

We agree with the plaintiffs argument on appeal that Gloria Evers and Michael Evers waived their argument that the plaintiffs fifth amended complaint failed to establish personal jurisdiction over them, because they failed to raise that ground in response to the original complaint against them. See Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (“It is well established that if a party-takes some step in the proceedings which amounts to a submission to the court’s [personal] jurisdiction, then it is deemed that the party waived [their] right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.”) (citation, brackets, and internal quotation marks omitted).

However, we conclude without further discussion that the circuit court should have granted Gloria Evers’ and Michael Evers’ motion to dismiss on the ground that the plaintiffs fifth amended complaint failed to state a cause of action against them. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

Based on the numerous opportunities which the circuit court gave to the plaintiff to attempt to state a cause of action against Gloria Evers and Michaei Evers, and because it appears that giving the plaintiff another opportunity to amend the complaint would be futile, we affirm the circuit court’s final order granting with prejudice Gloria Evers’ and Michael Evers’ motion to dismiss the plaintiffs fifth amended complaint against them. See McCray v. BellSouth Telecommunications, Inc., 213 So.3d 938, 939 (Fla. 4th DCA 2017) (“Refusal to allow an amendment is an abuse of the trial court’s discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”) (emphasis added; citation and internal quotation marks omitted).

Affirmed.

Levine and Conner, JJ., concur.


author: Per Curiam.

text:
    Jason TOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1865
    District Court of Appeal of Florida, Fourth District.
    August 23, 2017
    Jason Tolley, South Bay, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Janvier v. State, 123 So.3d 647 (Fla. 4th DCA 2013).

Warner, Taylor and Conner, JJ., concur.


author: WALLIS, J.

text:
    Johnny L. JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1377
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017

      Johnny L. Jones, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Johnny L. Jones appeals pro se the denial of his motion for postconviction relief alleging ineffective assistance of counsel. We reverse the summary denial of grounds three and seven and remand with instructions. We affirm the denial of the remaining grounds without discussion.

On November 20, 2012, a jury found Jones guilty of grand theft and burglary while armed with a firearm. The trial court sentenced Jones as a prison releasee reof-fender to life in prison. Jones filed a pro se, twelve-ground motion for posteonvietion relief, alleging ineffective assistance of counsel. The postconviction court summarily denied all grounds except two and eleven, for which it set an evidentiary hearing. Jones now challenges the court’s summary denial of these grounds, which the State declines to address on appeal.

“The standard of review of a summary denial of a rule 3.850 motion is de novo.” Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA 2012) (citing McLin v. State, 827 So.2d 948, 954 (Fla. 2002)). “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)). “Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” McLin, 827 So.2d at 954 (quoting Foster v. State, 810 So.2d 910, 914 (Fla. 2002)).

In ground three, Jones argued his trial counsel provided ineffective assistance by failing to call Assistant State Attorney Chris Ferebee during a suppression hearing. A facially sufficient claim of ineffective assistance for failure to call a witness must allege: “the identity of the potential witness, the substance of the witness’ testimony, an explanation of how the omission of the testimony prejudiced the outcome of the case, and a representation that the witness was available for trial.” Spellers v. State, 993 So.2d 1117, 1118 (Fla. 5th DCA 2008) (citing Leftwich v. State, 954 So.2d 714 (Fla. 1st DCA 2007)). Jones alleged that Ferebee would have testified that law enforcement communicated to him that they also arrested Jones’s mother, resulting in Jones’s cooperation in exchange for the possibility of her immunity.

In its order denying ground three, the postconviction court noted that the trial court denied the motion to suppress without a hearing and attached the relevant motion and order. On appeal, Jones challenges the postconviction court’s findings by asserting that a suppression hearing actually did occur, referring to it as the “hearing held on November 12, 2012,” which coincides with his trial date. A review of the transcript in Jones’s direct appeal demonstrates that the trial court heard the motion to suppress before proceeding to trial, considering argument from both sides. The State presented two witnesses, and Jones testified on his own behalf. Thus, the postconviction court incorrectly stated that no hearing occurred.

The postconviction court further found that Ferebee’s deposition, purportedly attached to the order, refuted Jones’s claim of coercion. However, the record does not include the deposition as an attachment. Although the postconviction court described “Appendix D” as containing Fere-bee’s deposition, the appendix, perhaps mistakenly, contains only Jones’s mother’s deposition, not Ferebee’s. Thus, because the order does not include record attachments conclusively refuting ground three, we reverse and remand for the postconviction court to “attach the correct records or address the claim on the merits.” See Hunter v. State, 187 So.3d 1265, 1265 (Fla. 5th DCA 2016) (citing Fla. R. Crim. P. 3.850(f)(4)).

In ground seven, Jones argued his trial counsel provided ineffective assistance by failing to request an “independent act” jury instruction based on his allegation that “no guns were taken to burglarized home, he did not enter the home, and it had been agreed upon beforehand that no guns would be used or taken. Co-defendant acquired guns from inside of the home.” “The ‘independent act’ doctrine applies ‘when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofel-on, “which fall outside of, and are foreign to, the common design of the original collaboration.” ’ ” Roberts v. State, 4 So.3d 1261, 1263 (Fla. 5th DCA 2009) (quoting Ray v. State, 755 So.2d 604, 609 (Fla. 2000)). However, “an independent act instruction is inappropriate when the unre-butted evidence shows the defendant knowingly participated in the underlying criminal enterprise when the murder occurred or knew that firearms or deadly weapons would be used.” Id. at 1264.

Although the information charged Jones with burglary with a firearm, the charging affidavit supports Jones’s assertion that his cofelons acquired the weapons within the burglarized home. Jones asserted that he never entered the home, acting only as getaway driver to “straight burglary.” Thus, the facts of this case suggest that Jones did not know “that firearms or deadly weapons would be used.” See id. In its order, the postconviction court summarized Jones’s version of events, found that trial counsel offered a persuasive hypothetical in support of his theory of the case, and then concluded, without elaboration, “Even if [Jones] did not go inside the house but stayed outside as the driver, the Independent Act Doctrine would not have applied in this particular case.” However, because the evidence showed that Jones never entered the home, planned for the use of a firearm, nor anticipated the recovery of firearms within the home, Jones raised a facially valid ground for relief. See id. Thus, the postconviction court erred by summarily denying this ground. See Peede, 748 So.2d at 257. We reverse and remand for the court to “either attach the portion of the record that conclusively refutes [the] claim or conduct an evidentiary hearing on the matter.” See Smith v. State, 69 So.3d 1034, 1035 (Fla. 5th DCA 2011) (citing White v. State, 19 So.3d 444, 445 (Fla. 5th DCA 2009)).

AFFIRMED in Part; REVERSED in Part; and REMANDED with Instructions.

COHEN, C.J. and LAMBERT, J., concur.

      . Jones later withdrew ground eleven.

      . "This court can take judicial notice of its own records.” Scheffer v. State, 893 So.2d 698, 699 (Fla. 5th DCA 2005).


author: SLEET, Judge.

text:
    Mark ROUSEY, DC# H12058, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4186
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SLEET, Judge.

Mark Rousey appeals the order revoking his community control in case numbers CF00-146 and CF13-5307. Because the trial court’s finding that Rousey committed á willful and substantial violation of his community control was not supported by competent substantial evidence, we reverse.

Rousey was convicted of lewd or lascivious battery and lewd or lascivious molestation and was originally sentenced to concurrent terms of ten years’ prison followed by five years’ probation in case number CF00-146. In 2013, Rousey pleaded guilty to committing the new law offense of failing to register as a sex offender in exchange for five years’ probation in case number CF13-5307. On November 20, 2015, the trial court revoked his probation in both case numbers and sentenced Rous-ey .to concurrent sentences of eighteen months’ community control followed by one year of probation on all counts. On April 21, 2016, the State filed a violation affidavit, alleging that Rousey violated conditions sixteen and nineteen of his community control by failing to remain confined to his approved residence and failing to follow the rules of electronic monitoring.

At the violation hearing, Rousey’s community control officer testified that she gave Rousey permission to go to a cell phone store to repair his telephone and •instructed him to return to his home by 1:00 p.m. When Rousey had not returned home by 1:00 pm, the monitoring center sent an alert to Rousey’s monitoring device at 1:05 p.m. The community control officer unsuccessfully attempted to call Rousey on his cell phone and sent a message to Rousey’s monitoring device at about 1:41 p.m. directing him to call her. Although Rousey acknowledged the message by pressing a button on his monitoring device, he did not immediately call his community control officer. The community control officer testified that Rousey’s GPS monitoring records reflected that he returned home at 1:48 p.m. and that he was at a gas station near his home for, the entire period of time he was out after 1:00 p.m.

Rousey testified that he did not have his own transportation and had to rely on his nephew to take him to the cell phone store. Rousey spent fifty minutes at the cell phone store only to learn that his phone could not be repaired there and that he would need to mail it in; After leaving the cell phone store, Rousey and his nephew stopped for gas; Rousey testified that his community control officer had previously indicated that he could stop for gas when needed without prior approval. Rousey explained that his nephew was unable to restart the car after purchasing gas and that they were stranded at the gas station for forty-six minutes. The State admitted a gas station receipt showing that Rousey’s nephew purchased gas at 1:03 p.m. Rousey testified that neither he nor his nephew had a working phone and that he was therefore unable to immediately call his community control officer or respond to the alert on his monitoring equipment. When Rousey’s nephew was able to start the car, the two returned to Rousey’s residence, arriving at 1:48 p.m. Rousey testified that he called his community control officer using his stepmother’s phone when he arrived home and explained the issue to her when she made contact with him later that evening.

The State argued that Rousey willfully failed to return his community control officer’s calls and alerts and that he failed to make a good faith effort to return home by the approved time. The trial court agreed, finding that Rousey willfully and substantially violated condition sixteen by failing to remain confined to his approved residence and condition nineteen by refusing to follow the rules of electronic monitoring. The court revoked his supervision and sentenced him to fifteen years’ prison for lewd or lascivious battery and to ten years’ prison followed by two years’ community control and three years’ probation for lewd or lascivious molestation in case number CF00-146. The court sentenced him to two years’ community control in case number CF13-5307. Rousey now appeals the revocation of his community control and his sentences in both case numbers.

“When making the decision to revoke a defendant’s community control, the trial court must determine whether the State has proven a substantial and willful violation by the greater weight of the evidence.” Hugan v. State, 190 So.3d 210, 211 (Fla. 2d DCA 2016); see also Robinson v. State, 907 So.2d 1284, 1286 (Fla. 2d DCA 2005); Brown v. State, 813 So.2d 202, 203-04 (Fla. 2d DCA 2002). This court has consistently held that a violation of supervision is willful only where the defendant fails to make reasonable efforts to comply with the alleged violated condition. See Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004); Benedict v. State, 774 So.2d 940, 941 (Fla. 2d DCA 2001); Jacobsen v. State, 536 So.2d 373, 375 (Fla. 2d DCA 1988); Scott v. State, 485 So.2d 40, 41 (Fla. 2d DCA 1986). On appeal, this court reviews the trial court’s decision to revoke supervision for an abuse of discretion. Hugan, 190 So.3d at 211.

The evidence presented at the hearing reflected that Rousey was engaged in an approved activity at the time of his alleged violation; “[t]he only problem was that he performed this ... act outside the window of time in which this activity was supposed to occur.” See id. (alteration in original) (quoting Filmore v. State, 133 So.3d 1188, 1193 (Fla. 2d DCA 2014)). The State did not dispute that Rousey was at the gas station, that he had permission ñ’om his community control officer to stop for gas, or that he was stranded while his nephew attempted to fix his car. And there was no evidence that Rousey, who had permission to visit a cell phone store to fix his broken phone, had access to a phone from which he could call his community control officer while he was stranded at the gas station. Rousey’s failure to timely contact his community control officer and to return home was at worst due to negligence or ineptitude; therefore, the trial court abused its discretion in finding a willful and substantial violation of community control. See id. at 211 (“[A] violation of probation will not be found where the violation is due to negligence or ineptitude.” (quoting Filmore, 133 So.3d at 1193-94)); Thomas v. State, 672 So.2d 587, 589 (Fla. 4th DCA 1996) (reversing a revocation order when the defendant failed to comply with his curfew because of a flat tire and explaining that the violation was a result of his ineptitude or negligence, not “the product of a knowing and willful act” (quoting Stevens v. State, 599 So.2d 254, 255 (Fla. 3d DCA 1992))); see also Boatwright v. State, 847 So.2d 1141, 1142 (Fla. 3d DCA 2003) (reversing a revocation order based on the defendant’s five-and-a-half-hour delay returning home from church when it was caused by his attendance at additional church activities); Hern v. State, 747 So.2d 1039, 1039-40 (Fla. 4th DCA 1999) (concluding that the defendant did not willfully or substantially violate her curfew when she was thirty-five minutes late because she missed the bus and had to walk).

Accordingly, we reverse the order of revocation and subsequent sentences, and we remand for reinstatement of Rousey’s supervisory sentences.

Reversed and remanded with instructions.

KHOUZAM and BADALAMENTI, JJ., Concur.


author: WALLACE, Judge.

text:
    Angel MEDINA, DOC #H45754, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-654
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017

      David Maldonado of The Maldonado Law Firm, P.A., Lakeland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Angel Medina challenges his judgment and sentence for neglect of a child causing great bodily harm in violation of section 827.03, Florida Statutes (2012), following a jury trial. Because Mr. Medina’s conduct in allowing a four-year-old child to descend a flight of stairs unassisted—stairs that the child had regularly traversed previously without significant incident—did not rise to the level of culpable negligence or a willful failure to care for the child’s well-being, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident

On January 10, 2013, Mr. Medina was babysitting his girlfriend’s four-year-old son, J.A., when J.A. fell down a set of unfinished wooden stairs inside of Mr. Medina’s residence. The fall caused traumatic brain injuries and required a piece of J.A.’s skull to be removed in order to relieve pressure on the brain. J.A. was in a medically induced coma in the pediatric intensive care unit for several days and had to stay at the hospital for over two months.

The incident in- question began around 4:40 p.m. when J.A.’s mother left to go-to work. Later that evening, J.A. was upstairs when he called down to Mr. Medina, who was on the first floor playing video games, and asked him if he could play video games with him. Upon Mr. Medina giving J.A. permission to come down and to bring his controller, J.A. began running down the stairs, where he subsequently fell, cracked his head open, was knocked unconscious, and stopped breathing. Mr. Medina then picked up J.A., ran upstairs, called 911, and tried performing CPR on J.A. until sheriffs deputies and paramedics arrived. The State later charged. Mr. Medina with neglect, of a child causing great bodily harm.

B. The Trial

At the trial, the State introduced Mr. Medina’s personal statéments made in a recorded interview with a detective. In the interview, the detective asked Mr. Medina if the child ever had any trouble with the stairs, and Mr. Medina stated that “[o]ne time there was [an] incident.” When the detective later inquired about that prior incident, Mr. Medina stated, “It was—it was on the last step though. It was on the last stair. [J.A.] just—I don’t know. I guess he tripped. He came—come down fast again. He just boom, boom, boom.” It is not clear from this statement whether the references to' “com[ing] down fast again” and “boom, boom, boom” referred to the January 10 incident for which Mr. Medina was on trial or to ah earlier incident. The detective did not ask Mr. Medina any follow-up questions to clarify this ambiguity.

The State then introduced a reenactment video in which Mr, Medina had.participated. In the video, Mr. Medina stated that J.A.- was about halfway down the stairs when he fell. Mr.. Medina further stated.in the interview that he did not see J.A. fall but heard it. He asserted that he did not watch J.A, descend the- stairs because he was sitting on the couch focusing on,his video games. Also, Mr. Medina stated that J.A, frequently traversed the stairs and that he only knew of one other time when J.A. had trouble .walking -up and down the stairs by himself. Specifically, Mr. Medina stated that J.A. fell “going up” the stairs but that it was “nothing serious.” Mr. Medina’s report of J.A.’s fall “going up” the stairs seems to be the earlier incident that he referenced in the recorded interview. :

A detective who was involved in the reenactment video then testified that the stairs were narrow, “very steep,” and “progress[ed] upward pretty quickly.” The steep stairs connected the first , and second floors of the home, and J.A.’s bedroom was located on the second, floor. There were about twelve steps in total and all of them were wooden with rough edges. The detective stated that the stairs were, “still in the process of being refur[b]ished.” There were two handrails to the right and to the left of the staircase, including balusters attached to the handrail on one side of the staircase. However, the handrail with balusters was not properly secured. Further, both handrails did not go all the way to the top of the staircase. Accordingly, there were no handrails for a person to hold at the very top of the stairs to prevent someone from falling off the step. The State introduced photographs of the stairs into evidence.

A Department of Children and Families investigator also interviewed Mr. Medina regarding J.A.’s incident. The DCF investigator testified that Mr. Medina told him that at the time of the incident, he had been píaying video games and smoking marijuana. On cross-examination, the DCF investigator again stated that Mr. Medina had admitted to smoking marijuana on the day of the incident. However, the DCF investigator testified that it was “possible” that Mr. Medina had stated that he was smoking marijuana before the child was in the residence. The DCF investigator further clarified that it was not “one hundred percent true” to say that Mr. Medina had actually said, “I was smoking at the time of the incident.”

In addition to the , DCF investigator’s testimony, the State and Mr. Medina introduced testimony from several law enforcement officers. Two of the responding officers testified that they did not remember smelling marijuana in the home when they arrived. However, a third officer testified that he smelled a “faint odor” of marijuana when he entered the residence, as if Mr. Medina had smoked marijuana a couple hours earlier. Additionally, through one of the responding officer’s testimony, the State was able to introduce and identify various objects evidencing drug use found in Mr. Medina’s home, including baggies containing marijuana, marijuana shavings, a marijuana butt in an ashtray, a bong-in the bedroom, a hookah, and three to four rolled up cigarillos on a child’s table. No one tested Mr. Medina to determine whether or not he had recently used any drugs or alcohol.

At the time of the trial, J.A. was six years old and in the first grade at school. The State called J.A. as a witness at trial but did not first proffer his testimony outside the presence of the jury. Thus, J.A. gave extensive testimony before the jury. There were multiple problems with- J.A.’s testimony and demeanor as a witness that we need not detail here. Ultimately, the trial court called a halt to the testimony, and J.A. was excused. After hearing the parties’ arguments, the trial court ruled that J.A. was incompetent to testify. Defense counsel moved for a mistrial. The trial court never actually ruled on the mistrial motion but declared that it would give a curative instruction to the jury. The prosecutor and defense counsel agreed on the text-of a curative instruction that the trial court then read to the jury.. In the instruction, the trial court told the jurors that J.A. had been determined to be incompetent to testify and charged them to disregard entirely his testimony in their deliberations.

Next, the State introduced testimony from J.A.’s mother. The mother testified that at the time she left, J.A. was upstairs doing a eonnect-the-dot’s worksheet. She also testified that there was no marijuana or drug paraphérnalia in the house when she left and that Mr. Medina admitted to her that he smokes marijuana but he does not smoke marijuana at the house. The mother admitted that she sometimes felt it was unsafe for J.A. to walk up and down the stairs because J.A. was only four years old and “would get excited sometimes.” The mother testified, “We’d always make sure he don’t—don’t run dp and down the stairs.” Then she said that J.A. would never run up and down the stairs. The mother testified that she never saw J.A. fall down the stairs, but she also said that she had seen him trip while running or playing soccer.

Finally, the State introduced testimony from J.A.’s father. The father testified that after the incident on January 10, 2013, he visited J.A. in the hospital. He testified that J.A. was alert but not awake. The father also stated that while at J.A.’s bedside, he heard J.A. say, “[Mr. Medina] was a mean man, [Mr. Medina] hit him, [Mr. Medina], cussed at him, [Mr. Medina] pushed him.” The father testified that when J.A. uttered these words, he would have to calm J.A. down by telling him that nobody was going to hurt him and that “[Daddy’s here.” Defense counsel objected to the father’s testimony on the basis of hearsay, and the trial court overruled defense counsel’s objection.

At the end of the State’s case, Mr. Medina moved for a judgment of acquittal. Defense counsel argued that the State failed to meet its burden in showing that Mr. Medina willfully or by culpable negligence failed or omitted to provide J.A. with care or services necessary to maintain J.A.’s health. Specifically, defense counsel argued that the State failed to present evidence that Mr. Medina must have known or reasonably should have known that allowing J.A. to descend the stairs unassisted and unsupervised was likely to cause J.A. death or great bodily harm. In response, the State contended that Mr. Medina willfully failed to supervise J.A. by choosing to play video games and smoke marijuana, while leaving J.A. alone on the second floor and near a dangerous staircase. The trial court denied the motion.

Defense counsel then called the first responding officer, J.A.’s mother, and J.A.’s father. Mr. Medina elected not to testify in his own defense. The responding officer testified about the January 10 incident, as outlined above; J.A.’s mother testified about the May 13 incident; and J.A.’s father testified about his disciplinary methods with his children. The defense rested its case, and the jury subsequently returned a guilty verdict on count one but acquitted Mr. Medina on count two. This appeal ensued.

II. DISCUSSION

A. The Standard of Review

We review a trial court’s denial on a motion for judgment of acquittal de novo, solely to determine if the State presented legally sufficient evidence to support the verdict. Durousseau v. State, 55 So.3d 543, 556 (Fla. 2010). “Sufficiency is a test of adequacy. Sufficient evidence is ‘such evidence, in character, weight, or amount, as will legally justify the [verdict]’ ” Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981) (citing Black’s Law Dictionary 1285 (5th ed. 1979)). We will “not retry a case or reweigh conflicting evidence submitted to a jury.” Id. Rather, we must determine “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict.” Id.

B. The Applicable Florida Law

To convict a person of neglect of a child causing great bodily harm, the State must prove that the defendant “willfully or by culpable negligence neglect[ed] a child and in so doing cause[d] great bodily harm ... to the child.” § 827.03(2)(b). “Neglect of a child” is defined as “[a] caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to ... supervision ... that a prudent person would consider essential for the well-being of the child.” § 827.03(1)(e)(1). Indeed, “neglect of a child may be based on ... a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.” § 827.03(1)(e).

Additionally, “willfully” is defined as acting “voluntarily and consciously, not accidentally.” Arnold v. State, 755 So.2d 796, 798 (Fla. 2d DCA 20G0). “[Culpable negligence [means] more than a failure to use ordinary care for others.... [I]t must be gross and flagrant [and] committed with an utter disregard for the safety of others.” Poczatek v. State, 213 So.3d 1065, 1072 (Fla. 2d DCA 2017) (first and last alterations in original) (quoting Burns v. State, 132 So.3d 1238, 1240 (Fla. 1st DCA 2014)). A caretaker’s failure to supervise a young child does not always rise to the criminal level of culpable negligence. See Ramos v. State, 89 So.3d 1119, 1120 (Fla. 1st DCA 2012) (“Mere negligence in the care of one’s young child doesn’t necessarily amount to culpable negligence.”); see, e.g., Kish v. State, 145 So.3d 225, 228-29 (Fla 1st DCA 2014) (holding that, although unwise, leaving three sick and young children unsupervised at a trusted caregiver’s home for a couple of hours did not rise to the level of culpable negligence because the defendant “tried to provide for [the] children’s safety” and the children were able to care for themselves); Bernard v. State, 769 So.2d 1066, 1067-68 (Fla. 3d DCA 2000) (holding that leaving a seven-year-old child unsupervised in an apartment for over forty-five minutes did not “rise to the level of criminal child neglect”). “Culpable negligence must be determined upon the facts and the totality of the circumstances in each particular case.” Ibeagwa v. State, 141 So.3d 246, 247 (Fla. 1st DCA 2014) (citing Behn v. State, 621 So.2d 534, 537 (Fla. 1st DCA 1993)).

C. The Application of Florida Law to the Facts

It is relatively easy to'summarize and state the foregoing general propositions regarding the criminal liability of the caretaker of a child. It is often much more difficult to apply such propositions to the facts of particular cases because close legal questions tend to arise in child neglect cases, where a caregiver’s “degree of care, neglect, indifference, or callous disregard is measured against societal norms and expectations under the circumstances.” Ramos, 89 So.3d at 1120. After a careful consideration of .the Florida case law and the evidence presented at the trial, we conclude that the State failed to present sufficient evidence to show that Mr. Medina was culpably negligent or willfully failed to care for J.A.’s well-being by allowing him to descend the staircase unassisted or unsupervised.

Here, although Mr. Medina chose to play video games and may have been smoking marijuana at the time that J.A, was descending the stairs, such action or inaction does not amount to a willful failure to provide for the well-being of J.A. Nor does it amount to culpable negligence, i.e., gross, flagrant, or an utter disregard for the safety of others. The mother’s testimony and Mr. Medina’s recorded statements reflected that J.A. regularly traversed the staircase without significant incident on numerous occasions. In fact, the State introduced evidence of only a single prior incident where J".A. had experienced difficulty while ascending or descending these stairs. And in that incident, J.A. apparently tripped on the last step without suffering any serious injury. Indeed, the failure to supervise a child, including leaving children home alone for a few hours, does not always constitute culpable negligence or criminal neglect. See, e.g., Kish, 145 So.3d at 228-29 (leaving three children under the age of eleven at home alone); see also State v. Lanier, 979 So.2d. 365, 369 (Fla. 4th DCA 2008) (holding that the State did not establish a prima facie case for culpable negligence because the teacher was “actually keeping an eye” on a four-year-old child that she placed on a chair near the edge of the stairs, which the child later fell down); Burns, 132 So.3d at 1242 (holding that upon seeing a child in respiratory distress, the defendant’s call to the child’s, mother instead, of the 911 emergency telephone service did not rise to.the level of willful or culpable negligence).

We recognize that Mr.- Medina’s two statements regarding J.A.’s prior incident or incidents on the stairs are ambiguous. Unfortunately, no one who interviewed Mr. Medina attempted to clarify whether there was more than one prior incident. And without any evidence that J.A. had more than one prior incident with the stairs—an incident that apparently did not result in serious injury to the child—the State fell short of proving that Mr. Medina was culr pably negligent. See Ramos, 89 So.3d at 1122 (recognizing that “[h]ad this been a single isolated incident—without the history; of [the caretaker’s] repeated indifference and inaction as to [the child’s] safety—it might fall short of a ‘gross and flagrant’ violation of a duty of care under a culpable negligence standard”). Because J.A.’s prior incident on the stairs was an isolated one, Mr. Medina could arguably have not deemed the stairs to pose such a risk of serious injury that J.A. required supervision or assistance every time that he traversed the stairs.

In sum, the State’s evidence was simply insufficient under the Florida cases to support its theory that Mr. Medina was guilty of the criminal neglect of a child. Indeed, to hold otherwise would impose a significant risk of criminal liability on all parents or caretakers of small children who allow children in their care to use the stairs in their houses or apartments.

D. A Case with Similar Facts

None of the cases cited by the parties directly addresses the issue of the criminal liability of a caretaker of a young child for allowing the child to ascend or to descend a flight of stairs without assistance. Independent research has revealed a decision of the Wyoming Supreme Court that addresses this issue; Dunsmore v. State, 153 P.3d 275 (Wyo. 2007). The facts in Duns-more are similar to the facts in this case; the law of Wyoming on criminal liability for child neglect is similar to. the law of Florida. For these reasons, Dunsmore warrants detailed consideration.

In Dunsmore, a caretaker left the basement door of a residence open, knowing that his two-year-old stepdaughter was going to descend the basement stairs, and failed to supervise the child as she descended those stairs unassisted. Id. at 276, 280. The child suffered a seizure while descending the stairs, fell down the stairs, and suffered serious injuries. Id. at 278-79. The jury found the caretaker guilty of child abuse in violation of Wyoming Statutes section 6-2-503(b)(i) (2003). Dunsmore, 153 P.3d at 277.

Under section 6-2-503(b)(i), “a person is guilty of child abuse ... if a person responsible for a child’s welfare ... intentionally or recklessly inflicts upon a child [p]hysical injury .... ” Wyoming defines “recklessly” as acting with a conscious disregard of a “substantial and unjustifiable risk” that -harm will occur and that foreseeable harm results. Dunsmore, 153 P.3d at 280 (discussing “recklessly,” as defined in Wyoming Statutes section 6-1-104(a)(ix) (2003)). Under the statute, a person only acts “recklessly” when his or her conduct creates a risk so great “that'disregarding it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” Dunsmore, 153 P.3d at 280 (quoting § 6-1-104(a)(ix)). This definition excludes accidents. See id. at 281.

Similarly, Florida defines aggravated child neglect as a willful or culpably negligent failure to provide a child with supervision or care. § 827.03(1)(e)(1), (2)(b), “Willful” is defined as a conscious and voluntary act, not an accident. Arnold, 755 So.2d at 798. Florida also defines “culpable negligence” as a gross, flagrant, and “utter disregard for safety of others.” Poczatek, 213 So.3d at 1072 (quoting Burns, 132 So.3d at 1240). A decision by the Wyoming Supreme Court is obviously not binding authority in Florida. Nevertheless, the levels of culpability necessary to rise to the levels of criminal conduct under the Wyoming and Florida statutes are sufficiently similar that Dunsmore can provide guidance on the questions that we are called upon to resolve in Mr. Medina’s case.

Moreover, the similarities between the facts in Dunsmore and the facts in Mr. Medina’s case are noteworthy. The issue in Dunsmore was “whether the [caretaker] recklessly inflicted physical injury upon [the child] when he left the basement door open and allowed [the child] to [go] down the stairs unsupervised.” 153 P.3d at 280. “The only evidence presented at trial that [was] remotely probative on the issue of whether descending the.stairs unassisted posed a danger to [the child] indicated that she had successfully accomplished this feat before and, therefore, it would not.be considered a dangerous situation by the [caretaker].” Id. The court held that the caretaker’s failure to supervise the two-year-old child as the child descended the basement stairs unassisted “simply [did] not rise to the level of criminal recklessness envisioned by the child abuse statute,” and instead “amount[ed] only to a tragic accident.” Id. at 281. The court subsequently held that there was not sufficient evidence to support the jury’s guilty verdict. Id.

Like the evidence in Dunsmore, the evidence presented in this case showed that J.A. had successfully traversed the stairs unassisted many times before the incident at issue. Further, J.A. was two years older than the child in Dunsmore, where the court held that failing to supervise the two-year-old child as the child descended familiar stairs did not constitute child abuse. 153 P.3d at 281; see also Kish, 145 So.3d at 228 (stating “the children ;.. weren’t so young that leaving them alone in a familiar home for a couple hours could be considered” culpable negligence). Although an officer testified that the stairs in the Medina residence were steep and unfinished, Mr, Medina’s statements indicate that J.A, had only one prior incident with the stairs during the approximately two- and-a-half month period J.A. resided at the home, where J.A.’s bedroom was located on the second floor. On these facts, the Wyoming Supreme Court’s decision provides additional support for the conclusion that Mr. Medina was not culpably negligent in failing to supervise or assist J.A. during the incident when he descended the stairs to join in playing the video gante. See Dunsmore, 153 P.3d at 280.

E. The Authorities Relied Upon by the State

In support of its contention that Mr. Medina’s entire lack of supervision was criminally negligent, the State relies on State v. Sammons, 889 So.2d 857 (Fla. 4th DCA 2004); Lanier, 979 So.2d 365; State v. Wynne, 794 So.2d 642 (Fla. 2d DCA 2001); and State v. Brooks, 17 So.3d 1261 (Fla. 2d DCA 2009). In Lanier and Sammons, the Fourth District found that the State did not establish a prima facie case for culpable negligence because the caretakers did supervise the children by “keeping an eye on” them. Lanier, 979 So.2d at 369-70; Sammons, 889 So.2d at 859-60. Here, it is uncontested that Mr. Medina was not even “keeping an eye” on J.A., but as we already noted, a caretaker’s failure to supervise a child does not always constitute culpable negligence. See, e.g., Kish, 145 So.3d at 228 (leaving children home alone for a couple hours was not culpable negligence). Therefore, Lanier and Sam-mons are not instructive for this case, and the State’s reliance on those cases is unwarranted.

The State’s reliance on Wynne and Brooks is also misplaced. In Wynne, the State established a prima facie case of neglect by showing that the defendant “acted willfully or with culpable negligence in creating [a] dangerous situation” when he abandoned his six-year-old son on the side of a highway exit ramp. 794 So.2d at 644. In Brooks, this court held that a mother’s act of leaving her nine-month-old child unattended in the bathtub with the water running from anywhere between fifteen to forty minutes was sufficient to show culpable negligence. 17 So.3d at 1262. Unlike the facts in both Wynne and Brooks, where the caretaker placed the children in dangerous situations, J.A, was left unattended near a set of stairs that he had frequently and successfully traversed on previous occasions.

F. The Impact of the Marijuana Evidence

Finally, the State argues that Mr. Medina failed to properly supervise J.A. because he was under the influence of marijuana at the time of the incident. Ideally, a sole caretaker of a child should be in the full possession of his or her faculties while caring for the child. However, a caretaker may be under the influence to a limited extent without the caretaker’s conduct rising to the level of culpable negligence if the caretaker’s slightly altered state does not negatively affect the caretaker’s duty to supervise and care for the child, create a dangerous situation, or contribute to the child’s injuries. See Sammons, 889 So.2d at 858-59 (finding the evidence insufficient to support a conviction for criminal child neglect when a mother was drinking at a bar and left her child in a car with the windows down because she “[kept] an eye on her child rather than ignoring her”). Here, the State did not present any evidence that Mr. Medina’s purported use of marijuana adversely affected his ability to supervise and care for J.A., created a dangerous situation, or contributed to J.A.’s injuries. And the fact remains that the child had successfully traversed the stairs many times before. We decline to adopt a per se rule that would impose criminal liability on a parent or caretaker of a small child for injuries occurring to the child after the use of alcohol or other substances by the parent or caretaker absent proof that use of alcohol or other substances actually impaired the ability of the parent or caretaker to supervise and care for the child.

We recognize the possibility that a jury could find that the use of marijuana by a parent or the caretaker of a small child created a dangerous situation if evidence established that the marijuana smoke adversely affected the child. Cf. State v. Jenson, No. M2003-02848-CCA-R3CD, 2005 WL 1475311, at *5 (Tenn. Crim. App. June 21, 2005) (affirming the defendant’s conviction for child neglect because there was evidence that the child’s residence was filled with crack cocaine smoke and the smoke affected the child’s health and welfare). However, the State did not present any evidence that marijuana smoke adversely affected J.A.’s ability to traverse the stairs, and thus created a dangerous situation requiring supervision and assistance.

III. CONCLUSION

In closing, we are obliged to state that we neither approve nor condone Mr. Medina’s conduct as described in this opinion. The stairs in his residence were steep and unfinished, and the hand railings were inadequate. The exercise of ordinary prudence would suggest that an excitable, four-year-old child should be assisted or— at the least—supervised while ascending or descending such a flight of stairs. Nevertheless, we are not persuaded that Mr. Medina’s failure to supervise or to assist J.A. under the facts shown here rose to the level of willful or culpably negligent conduct. See Arnold, 755 So.2d at 798 (“[T]he legal precedents have acknowledged that only the most egregious conduct, done either willfully or with criminal culpability, should be criminalized.”). The only other reported appellate decision involving similar facts reached the same conclusion that we reach here. For all of the foregoing reasons, we reverse Mr. Medina’s judgment and sentence for neglect of a child causing great bodily harm and remand with directions to the trial court to enter a judgment of acquittal and to discharge Mr. Medina.

Reversed and remanded.

KHOUZAM and BADALAMENTI, JJ, Concur.

      . J.A. also suffered a lacerated liver. Although the State’s medical expert testified that it was common to see such an injury with child abuse, it was not common, albeit possible, for the fall to have caused the laceration.

      . The State also charged Mr. Medina with aggravated child abuse causing great bodily harm for a separate incident that allegedly occurred on May 13, 2013. However, the jury returned a not guilty verdict on this count. Accordingly, the following discussion of the evidence presented at Mr, Medina's trial does not- outline the facts regarding the May 13 incident,

      . The State's theory of the case was that Mr. Medina had failed to supervise or to assist J.A. as he descended the stairs, not that he had pushed the child.


author: PER CURIAM.

text:
    Amanda Lynn MANATA, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1925
    District Court of Appeal of Florida, First District.
    Opinion filed August 30, 2017

      Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   OPINION GRANTING MOTION FOR CLARIFICATION, WITHDRAWING OPINION ON MOTION TO ENFORCE MANDATE, AND GRANTING MOTION TO ENFORCE MANDATE

PER CURIAM.

The appellant filed a motion .for clarification asking this court to clarify its “Opinion on Motion to Enforce Mandate,” filed on April 28, 2017. We grant the motion to clarify, withdraw the “Opinion on Motion to Enforce Mandate” filed on April 28, 2017, and issue this opinion in its place.

The appellant was convicted of organized scheme to defraud and grand theft. On appeal, this Court held that her convictions for both crimes violate double jeopardy principles, and ordered the lower court to vacate the grand theft conviction. Manata v. State, 213 So.3d 973 (Fla. 1st DCA 2016). We also affirmed the conviction for organized scheme to defraud, but remanded for the limited purpose of resentencing on that count. Id. Instead, at the State’s request the trial court resentenced the appellant on the grand theft conviction, and the State entered a nolle prosse on the organized scheme to defraud conviction. As numerous courts, including this one, have held:

When an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate.

Huffman v. Moore, 834 So.2d 300 (Fla. 1st DCA 2002) (citations omitted). Thus, we grant the motion to enforce mandate and direct the trial court to quash the order resentencing the appellant on the grand theft. The trial court is again directed to vacate the appellant’s conviction and sentence for grand. theft and to resentence her for the organized scheme to defraud conviction. The Staté’s nolle prosse of the appellant’s conviction for organized scheme to, dfefraud is a nullity, and shall have ho effect on remand. See Muhammad v. State, 99 So.3d 964 (Fla. 3d DCA 2011); Flores v. State, 958 So.2d 1026, 1027 (Fla. 5th DCA 2007) (“The State has no power to nolle pros a charge after jeopardy has attached. Therefore,' the State has no authority to nolle pros a charge after a jury is sworn.”).

ROBERTS, MAKAR, and OSTERHAUS, JJ., CONCUR.


author: May, J.

text:
    Nicholas Paul RAITHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3196
    District Court of Appeal of Florida, Fourth District.
    August 30, 2017

      Carey Haughwout, Public Defender, and J. Woodson Isom, 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.
   May, J.

The defendant appeals his conviction and sentence for making a false report of a bomb. He argues that his trial counsel was ineffective in failing to move to suppress his 211 call as protected by the psychotherapist-patient privilege; and the trial court erred in (1) denying his motion for judgment of acquittal; (2) proceeding to trial without determining his competency; and (3) imposing a $2,351 public defender lien. We find merit in his arguments concerning the competency issue and in the imposition of the public defender lien. We therefore reverse and remand the case.

The defendant has a history of mental illness, a brain injury, and a low IQ. He called 211, stating that he “made a bomb” and “blew up” himself. He told the 211 operator that he drank vodka and wanted to die.

When officers arrived, they found him heavily intoxicated and belligerent. He told the officers he did not have a bomb, but was “goofing off’ because he had an argument with his girlfriend. The officers searched the residence, but did not find a bomb. They arrested the defendant for false reporting of a bomb.

Prior to trial, defense counsel twice moved to have the defendant evaluated for competency. Within these motions, the defendant waived his right to the required hearing. The trial court entered orders directing examination of the defendant and appointing doctors. The trial court noted the defendant’s waiver of the hearing , and stated that defense counsel could schedule a competency hearing should it become necessary.

A doctor conducted the evaluation. After the defendant rejected a plea offer, the court asked whether all issues had been resolved in the case. Defense counsel replied: “Yes, Your Honor. I had him evaluated and he’s competent to proceed.”

At trial, the attorneys had difficulty communicating with the defendant and getting him to directly answer questions. At the charge conference, the following dialogue took place:

THE COURT: Has there been a mental health evaluation, competency evaluation regarding this case?
[DEFENSE COUNSEL]: There was, Your Honor. He was found competent to proceed.
THE COURT: Okay.
[DEFENSE COUNSEL]: It was not confidential. If Your Honor wants to review it before -
THE COURT: No. It may become relevant later on.

The State presented testimony of the 211 operator and two police officers. Defense counsel moved for a judgment of acquittal, arguing that the State failed to prove the defendant’s statement was a report that a bomb had been placed or planted, and that it was made with an intent to deceive. The trial court denied the motion. A jury found the defendant guilty of falsely reporting a bomb.

The trial court discussed sending the defendant to mental health court, commenting:

[I]t’s also part of the illness. ... I’m going to get him help. There’s no doubt in my mind ... this gentleman needs help. ... Even during this trial, even the way he’s acting now, everything indicates this man is screaming out for help. And we need to figure out what to do.

The court acknowledged the prior competency evaluation, and asked that the same doctor again evaluate the defendant. The doctor submitted a report summarizing his examination of the defendant. The report was prepared to “determine mitigating factors which should be addressed and considered by the court during sentencing.”

The doctor recommended a residential or inpatient setting. “[Without treatment, his mental state will continue to deteriorate to the point where he will be unable to take care of himself and will become a danger to himself and possibly to others.” Defense counsel also provided the court with a forensic report from a mental health facility.

The trial court placed the defendant on community control for a period of one year, followed by three years of probation. The defendant objected. He requested a Nelson hearing. The court responded that his arguments would be preserved for appeal.

The court ordered the defendant to be directly transported to a mental health facility. After the court announced the defendant’s court costs, defense counsel stated that the public defender fee was announced as $500 but should have been $1,500 because there was a trial. The court asked if the defendant had an issue with costs, and the defendant stated: “Yeah, I do. I have an issue with the whole f- - - - g thing. I have an issue with everything.”

The defendant voluntarily absented himself from the proceedings after yelling an expletive in court. The court then modified his sentence to standard probation, attending and completing mental health court, and completing a 28-day inpatient treatment program. The court discussed the concerns of the defendant consenting to the program, and defense counsel stated he would try to get the defendant to comply) “[b]ut in the last four or five months, his preferred communication is for me to stand there and let him yell at me and curse at me.”

In his third issue, the defendant argues the trial court erred in proceeding to trial and sentencing without determining whether he was competent. He argues that a de novo review of the record strongly suggests that he should have been found incompetent to proceed. The State responds the sole reason the. trial judge did not determine competency was because the defense never set a hearing after receiving a report concluding the defendant was competent. The State argues any error must be viewed as invited.

We review “a trial court’s decision regarding whether to hold a competency hearing [for] an abuse of discretion.” Deferrell v. State, 199 So.3d 1056, 1060 (Fla. 4th DCA 2016) (quoting Kelly v. State, 797 So.2d 1278, 1280 (Fla. 4th DCA 2001)).

We first acknowledge and commend the trial court for its expressed concern for the defendant’s issues and in fashioning a sentence to address those issues that led to the defendant’s arrest and conviction. It is clear that the trial court was aware of the defendant’s history and strived to sentence the defendant in a way that both protected the public and yet rehabilitated the defendant to the extent possible.

However, both the rules of criminal procedure and case law require a hearing and a judicial determination of the defendant’s competency once the defendant’s competency is questioned. See Zieler v. State, 220 So.3d 1190, 1191 (Fla. 4th DCA 2017); Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014); Fla. R. Crim. P. 3.210-3.212.

It is apparent that this circuit has employed a process which allows defense counsel to waive a competency hearing and request such a hearing only when defense counsel deems it necessary. Both of the defendant’s motions for a competency determination included language waiving the required competency, hearing. The trial court’s orders granting these motions acknowledged the defendant’s waiver of the hearing and ordered the defendant to schedule a competency hearing should it become necessary.

Just before jury selection, the trial court asked whether all issues were resolved, and defense counsel responded: ‘Tes, Your Honor. I had him evaluated and he’s competent to proceed.” The record fails to reveal that the competency evaluation was reviewed by the trial court, that a hearing was held, or an order determining competency was entered.

Prior to sentencing, the court ordered the defendant to be evaluated again to determine if there were any factors the court should consider in sentencing him. While the report concluded that the defendant had several mental issues, competency was not addressed in this report. Rather, the report made recommendations regarding placement of the defendant in an inpatient facility.

The State argues that the reason the trial court did not make a competency determination is because defense counsel never scheduled a hearing nor presented a report to. the trial court. It argues the defense invited the error. See Pope v. State, 441 So.2d 1073, 1076 (Fla. 1983) (“A party may not invite error and then be heard to complain of that error on appeal.”).

This argument does not apply in a competency context. It is true that defense counsel should have requested a competency hearing and a court ruling on the defendant’s competency. But, nowhere in Rule 3.210 does it allow a waiver of the hearing in the first place, and case law clearly requires a competency hearing and order whenever a competency concern arises. See Fla. R. Crim. P. 3.210; Monte v. State, 61 So.3d 1196, 1202 (Fla. 4th DCA 2011). In fact, we have specifically held that “even an express waiver of a hearing does not comport with the [rule].” Deferrell, 199 So.3d at 1061.

Two important details arise from this analysis.. First, even if the evaluations unanimously agree that the defendant is competent, the court still must conduct a hearing. Second, in response to the State’s argument that Deferrell waived his right to a hearing by not continuously requesting one, Williams [v. State, 169 So.3d 221 (Fla. 2d DCA 2016)] clearly stands for the proposition that even an express waiver of a hearing does not comport with the [rule]. It logically follows then, that an implicit waiver also would not serve to bypass the requirements of the [rule].

Id.

We therefore reverse and remand the case to th,e trial court. If the evidence indicates that defendant was competent at the time of trial, the trial court may make that determination nunc pro tunc and reimpose his conviction and sentence on remand. Silver v. State, 193 So.3d 991, 994 (Fla. 4th DCA 2016). If not, the trial court must adjudicate his current competency and conduct a new trial only if it finds him competent. Id.

Reversed and Remanded.

Gross and Fprst, JJ., concur.

      . 211 is the phone number of an information and referral call center, which also takes crisis calls.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . However, the final judgment for costs lists a $2,351 public defender fee. The court added $273 for depositions and $578 for mental health evaluation costs.


text:
    Vladimir EUGENE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3535
    District Court of Appeal of Florida, Fourth District.
    August 30, 2017

      Vladimir Eugene, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

A pro se defendant appeals a trial court order that denied his motion for return of property as untimely filed. He argues the trial court erred in finding the motion untimely when his petition for discretionary review in the Florida Supreme Court was still pending. We agree, and reverse and remand.

The defendant was convicted of first degree murder and sentenced to life in prison. We affirmed his conviction and sentence. Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011). The mandate issued in May 2011. He timely sought review in the Florida Supreme Court; which denied his petition for review on November 29, 2011.

The defendant then filed the subject motion to return property on October 5, 2011, seeking to gain repossession of four categories of items of property impounded as evidence following his arrest. The motion took .the form of a letter to the judge. The trial court ordered the Miramar Police Department, the Broward Sheriffs Office, the Clerk of the Circuit Court, and the Office of the State Attorney to file responses stating why the court should not grant the defendant’s motion for return of property.

The Broward Sheriffs Office responded .that the motion was not filed within sixty days after the conclusion of his ease, and argued it was untimely under section 705.105(1), Fla. Stat. (2011). That section provides:’

Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the' court from a criminal proceeding or seized as evidence by and. in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.

Id. The Sheriff claimed the defendant had until July 26, 2011 to move for return of his property and that his September 30, 2011 motion was thus time-barred.

The trial court determined the items were in the lawful custody of the clerk or law enforcement agencies, but that the motion was not timely filed. From that order, the defendant now appeals.

The defendant argues the trial court erred when it denied his motion for return of property as untimely because his petition for discretionary review of our opinion remained pending when he filed his motion. The Florida Supreme Court declined to accept jurisdiction on November 29, 2011. Eugene v. State, 76 So.3d 937 (Fla. 2011). His motion therefore was filed prior to the conclusion of his case.

We reversed a trial court order denying a motion for return of property as untimely in Cepero v. State, 174 So.3d 469 (Fla. 4th DCA 2015). There, the defendant moved for return of property while his petition for writ of certiorari to the United States Supreme Court was pending. We held that the defendant’s case was not final for purposes of running the sixty-day period for filing the motion for return of property. Here, the defendant’s case was similarly not concluded or final when he filed his motion for return of property because his petition for review was pending in the Florida Supreme Court.

The State acknowledges that the defendant timely sought review of our opinion, but suggests the pendency of his petition in the Florida Supreme Court distinguishes this case from Cepero. This is a distinction without a difference in the outcome. The defendant’s motion for return of property was timely filed. We therefore reverse and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and Remanded.

Damoorgian and Kuntz, JJ., concur.


author: Ciklin, J.

text:
    Virginia GIUFFRE, Appellant, v. Bradley J. EDWARDS, Paul G. Cassell, and Alan Dershowitz, Appellees.
    No. 4D16-1847
    District Court of Appeal of Florida, Fourth District.
    August 30, 2017

      Sigrid S. McCawley of Boies, Schiller & Flexner LLP, Fort Lauderdale, and Jon L. Mills, Miami, for appellant.
    Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale; and Richard A. Simpson of Wiley Rein LLP, Washington, D.C., for appellee Alan Dershowitz.
   Ciklin, J.

Virginia Giuffre, a nonparty below, appeals an order granting defendant Alan Dershowitz’s motion to strike her various motions for sanctions. The order on appeal was entered following a voluntary dismissal of the ease. In the order, the trial court held that it lacked jurisdiction to consider Giuffre’s previously filed motions for sanctions because the matter, had been voluntarily dismissed and further that Giuffre lacked standing to file the motions for sanctions to begin with. We agree with Giuffre’s contention that the trial court erred in determining that it lacked jurisdiction to entertain the sanctions motions. We affirm, -however, the trial court’s correct conclusion that Giuffre lacked standing. •

This appeal arises from a defamation action. In an action prior to the defamation action, Attorneys Edwards and- Cassell represented Giuffre, and Dershowitz represented Jeffrey Epstein. In the action below, Giuffre’s attorneys asserted a.defamation claim against Dershowitz based on statements Dershowitz made in the prior action. Dershowitz asserted a counterclaim for defamation based on the attorneys’ statements in the prior action that Der-showitz personally perpetrated criminal acts against Giuffre.

Giuffre’s participation in discovery'was compelled in the defamation action insofar as Dershowitz issued a subpoena for her deposition. As an apparent consequence, Giuffre’s counsel was present for some proceedings in the defamation action, including Dershowitz’s deposition. At his deposition, Dershowitz sought to reveal communications between himself and Attorney Boies, who also represented Giuffre. Gi-uffre objected multiple times and contended those were confidential settlement communications. Giuffre and Dershowitz agreed to raise the issue with the trial court.

Dershowitz then moved in limine .to overrule Giuffre’s objections, contending the contested communications were not settlement communications. To his motion, he attached an affidavit outlining his meetings and conversations with Boies.

The same day that the motion in limine was filed, Giuffre filed an emergency motion to seal the affidavit, alleging that the statements therein were confidential settlement negotiations and alleging that Der-showitz was aware of Giuffre’s ongoing objection to the revelation of the communications at issue. Shortly thereafter, The New York Times published an article that included some of the. contents of the affidavit. Thereupon, Giuffre moved to strike the affidavit and Dershowitz’s pleadings and moved to impose sanctions against Der-showitz.

At a hearing on the motion, the trial court granted the emergency motion to seal the affidavit, but reserved ruling on the motion for sanctions against Dershow-itz (and on the underlying motion in li-mine),

Dershowitz’s deposition continued approximately .one month later, at which point he gave testimony that, according to Giuffre’s allegations, again described" confidential settlement negotiations with Gi-uffre’s counsel. Giuffre’s counsel at the deposition objected and then filed a supplemental motion to strike and for further sanctions based on the deposition testimony, alleging that Dershowitz violated the order sealing the affidavit. Dershowitz moved to strike Giuffre’s sanctions motions.

Thereafter, the parties to the lawsuit filed a stipulation of dismissal with prejudice. At the hearing on Dershowitz’s motion to strike, he contended the court was divested of jurisdiction when the parties filed the stipulation of dismissal, and, regardless, Giuffre was a .nonparty and lacked standing in the proceedings. The trial court agreed and entered an order concluding, “Even if defendant Dershowitz willfully violated this Court’s order, the Court has no jurisdiction to consider the motion for sanctions, and further, [Giuffre] lacks standing in this case.”

The Trial Court’s Continuing Jurisdiction

Generally, a trial court’s determination on jurisdiction is reviewed de novo. See Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005).

A trial court’s jurisdiction ends with the termination of litigation. Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986). Florida Rule of Civil Procedure 1.420(a)(1) governs the voluntary dismissal of actions by parties and provides that an action is dismissed upon the filing of a joint stipulation of dismissal:

[A]n action ... may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all current parties to the action.

Thus, the effect of a .voluntary dismissal under rule 1.420(a) “is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction’.” Randle-E. Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla. 1978).

Of course, there are numerous exceptions to this deprivation of jurisdiction, including those enumerated in Florida Rule of Civil Procedure 1.540 and jurisdiction to enforce a final judgment or stipulation of dismissal, Broadband Engineering, Inc. v. Quality RF Services, Inc., 450 So.2d 600, 601 (Fla. 4th DCA 1984).

Pertinent to the issue.at hand, even after resolution of a lawsuit by way of final judgment or stipulation of dismissal, the trial court retains jurisdiction to resolve “collateral matters such as taxation of costs and prevailing party attorney’s fees.” See Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 704 (Fla. 4th DCA 1995). “A motion for sanctions seeking attorney’s fees and reasonable expenses as a result of discovery abuses and alleged violations of court orders properly falls within the exception to the rule as an independent and collateral claim.” Id.

In Amlan, after final judgment had been entered, the plaintiffs moved for attorney’s fees as a sanction for the defendant’s misconduct in discovery. Id. at 702. The trial court granted the motion and on appeal, this court affirmed, reasoning:

An award of attorney’s fees and costs is ancillary to, and does not interfere with, the subject matter of the appeal, and thus, is incidental to the main adjudication. [McGurn v. Scott, 596 So.2d 1042, 1044 (Fla. 1992)]. On the other hand, prejudgment interest, as an element of damages directly related to the main issues in controversy, is not properly considered after the entry of a final judgment. ...
Monetary sanctions for discovery abuses are not an element of damages, but constitute a collateral and independent claim for attorney’s fees and costs arising from litigation-related discovery abuses. ... [A] motion for sanctions for pretrial discovery abuses filed after the entry of a final judgment may be appropriately considered by the trial court.

Id. at 704.

In addition to retaining jurisdiction over independent and collateral claims, it is axiomatic and inherent that a trial court retains jurisdiction to enforce its own orders, subject, of course, to review by courts of higher rank. See Erickson v. Erickson, 998 So.2d 1182, 1183 (Fla. 1st DCA 2008); see also Cooter v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated.”); Pino v. Bank of N.Y., 121 So.3d 23, 41 (Fla. 2013) (holding a trial court has continuing jurisdiction to resolve a pending motion for sanctions under section 57.105 regardless of a plaintiffs voluntary dismissal of case); Whitby v. Infinity Radio, Inc., 961 So.2d 349, 353 (Fla. 4th DCA 2007) (finding that, after entry of final judgment, trial court retained ancillary jurisdiction to enforce contempt order that was entered prior to judgment).

Giuffre’s sanctions motions were— by definition—“collateral” and “independent” matters. Her claims were ancillary to and did not interfere with the subject defamation claims between Dershowitz and Edwards and Cassell or the dismissal of those claims. Consequently, the trial court retained jurisdiction to entertain the sanctions motions—and never lost it.

The Nonparty’s Standing

Despite the trial court’s error in concluding it lacked jurisdiction to enforce its previously entered orders, we nonetheless affirm due to the trial court’s accurate conclusion that Giuffre lacked standing. Standing is a question of law to be reviewed de novo. See Circle Villas Condo. Ass’n v. Circle Prop. Owners’ Ass’n, 957 So.2d 1207, 1209 (Fla. 4th DCA 2007).

“Any litigant must demonstrate that he or she has standing to invoke the power of the court to determine the merits of an issue.” Vaughan v. First Union Nat’l Bank of Fla., 740 So.2d 1216, 1217 (Fla. 2d DCA 1999). “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.” Weiss v. Johansen, 898 So.2d 1009, 1011 (Fla. 4th DCA 2005). “The interest cannot be conjectural or merely hypothetical!,]” id., nor can it be “indirect, inconsequential, or contingent,” Sweetwater Country Club Homeowners’ Ass’n v. Huskey Co., 613 So.2d 936, 939 (Fla. 5th DCA 1993).

The Florida Supreme Court has identified three minimal requirements for standing:

There are three requirements that constitute the irreducible constitutional minimum for standing. First, a plaintiff must demonstrate an injury in fact, which is concrete, distinct and palpable, and actual or imminent. Second, a plaintiff must establish a causal connection between the injury and the conduct complained of. Third, a plaintiff must show a substantial likelihood that the requested relief will remedy the alleged injury in fact.

State v. J.P., 907 So.2d 1101, 1113 n.4 (Fla. 2004) (citations and quotation marks omitted).

Generally, a nonparty does not have standing to request relief from the court. Whiteside v. Sch. Bd. of Escambia Cty., 798 So.2d 859, 859-60 (Fla. 1st DCA 2001).

Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit.

Warshaw-Seattle, Inc. v. Clark, 85 So.2d 623, 625 (Fla. 1955) (citation omitted). An exception to the general rule exists for situations involving discovery from a non-party. See Whiteside, 798 So.2d at 860; Fla. R. Civ. P. 1.410(c) (permitting the addressee of a subpoena to move to “quash or modify the subpoena if it is unreasonable and oppressive”); Fla. R. Civ. P. 1.280(c) (permitting a nonparty to move for a protective order against discovery for protection from “annoyance, embarrassment, oppression, or undue burden or expense”).

Consistent with the general rule, Giuffre did not have standing in the proceedings below, despite her feasible stake in the outcome of the proceedings. In accordance with J.P., Giuffre cannot meet the third of the minimum requirements. That is, that the requested relief will remedy the alleged injury.

Consequently, the trial court did not err in concluding that Giuffre lacked standing and we affirm.

Affirmed.

Taylor and May, JJ., concur.

      . Giuffre alleges that Dershowitz violated his agreement to keep their settlement communications confidential and that his actions damaged her reputation. The relief she requested below included the striking of Dershowitz’s pleadings, or at least his affidavit, from the record, attorney’s fees and costs, and admonishment of Dershowitz against any further violations of his confidentiality obligations. Dershowitz’s claims and pleadings were effectively withdrawn when he stipulated to dismissal of the case, cf. Florida Rule of Civil Procedure 1.420(a)(1), so striking of the pleadings was no longer an available remedy. Further, attorney’s fees and costs and admonishment against future revelations are unlikely to remedy the injury of damage to Giuffre's reputation, particularly considering the previous publication of the communications.


text:
    3709 N. FLAGLER DRIVE PRODIGY LAND TRUST, Mango Homes LLC, as Trustee, Appellant, v. BANK OF AMERICA, N.A., Derek Hovey, Jennifer Hovey a/k/a Jennifer Cook, City of West Palm Beach, Florida, et al., Appellees.
    No. 4D16-3255
    District Court of Appeal of Florida, Fourth District.
    August 30, 2017
    Michael Farrar, Doral, for appellant.
    No brief filed for appellees.
   PER CURIAM.

Appellant challenges the trial court’s entry of final judgment of foreclosure against its interest in the property which is subject to a mortgage. The trial court concluded that appellant, which received title to the property by quitclaim deed prior to the institution of foreclosure proceedings, could not contest the appellee’s standing to bring the foreclosure action. We hold that appellant was’ a proper party to the proceedings; thus, the court erred in refusing to allow appellant to contest the appellee’s standing to bring the foreclosure proceeding. We reverse.

In 2009, the appellee Bank of America (“the Bank”) originally sought to foreclose on a mortgage given to Amnet Mortgage Inc., d/b/a American Mortgage of Florida, Inc., by Jennifer and Derek Hovey on property owned by them. But in 2012, the Bank voluntarily dismissed the proceedings. The Hoveys transferred title to 3709 N. Flagler Dr. Prodigy Land Trust (“the Trust” or “appellant”) by quitclaim deed in August 2013. The next month the Bank refiled its foreclosure complaint, but it failed to make appellant a party. The lis pendens was filed after the transfer of title to appellant. After securing a default final judgment, the property was sold and certificate of sale issued in February 2015. Discovering the sale, appellant moved to intervene and to vacate the sale and judgment. The court granted the motion and vacated the final judgment. In June 2015, the Bank refiled the complaint, adding appellant as a party. Appellant answered and raised as an affirmative defense the Bank’s lack of standing to enforce the note.

At trial, the Bank asserted that appellant was not a party to the note or mortgage, and thus should not be allowed to contest anything other than damages at trial. Appellant contended that it had the right to contest the Bank’s standing to foreclose on the mortgage. The court also mistakenly believed that appellant was an intervenor instead of a party to the proceeding. Citing to Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087 (Fla. 2d DCA 2015), the trial court ultimately reasoned that appellant did not have standing to contest the Bank’s ability to foreclose. Further, there was no finding by the court that the transfer of ownership to appellant via quitclaim deed was done in an attempt to frustrate the timely resolution of the foreclosure action. The court required the Bank to prove only the amount of damages and did not entertain appellant’s arguments on standing, nor did the Bank’s witness testify as to its standing. Although the court was later apprised that appellant was indeed a party and not an intervenor, the court did not change its ruling. After the final judgment of foreclosure was entered, appellant appealed.

“Standing is, in the final analysis, that sufficient interest in the outcome of litigation which will warrant the court’s entertaining it.” Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971). An owner of property must be joined in a foreclosure proceeding of that property in order to make a decree of foreclosure valid. See Jordan v. Sayre, 24 Fla. 1, 3 So. 329, 330 (1888); see also English v. Bankers Tr. Co. of Cal., 895 So.2d 1120, 1121 (Fla. 4th DCA 2005). In this case, the Bank recognized this maxim by agreeing to the vacation of the original final judgment and refiling the complaint to join appellant as a party to the case. Therefore, there is no question that appellant had standing to contest the foreclosure proceeding.

The trial court relied on Whitburn for its ruling. There, Whitburn acquired title to property after a foreclosure complaint and notice of lis pendens was filed. Whit-burn then sought to intervene post-judgment to cancel the sale of the property. The trial court denied the motion on the basis that Whitburn had no standing, and the Second District affirmed, first noting that Whitburn was not a party to the foreclosure. In agreeing that Whitburn had no standing, the court relied on the well-established principle “when property is purchased during a pending foreclosure action in which a lis pendens has been filed, the purchaser generally is not enti-tied to intervene in the pending foreclosure action.” 190 So.3d at 1089. (citations omitted). Therefore, because it did not acquire its interest until after the filing of the lis pendens, it had no “sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation.” Id. at 1091 (citations omitted).

We agree with Whitburn that the acquisition of title to property after the filing of a foreclosure complaint and notice of lis pendens does not confer on the title holder standing to intervene in the foreclosure proceeding, because the title holder’s interest is clearly inferior, as a matter of law, to the interest of the foreclosing party. In this case, however, the appellant Trust acquired its title prior to the filing of the complaint and lis pendens and was made a party to the proceeding. Thus, Whitburn is inapplicable.

The trial court seized on language in Whitburn which we deem as mere dicta. The court in Whitburn, in further attempting to buttress its conclusion said, “We further point out that Wells Fargo’s mortgage on the property was recorded in 2006; therefore, even if Wells Fargo had not recorded a lis pendens in its foreclosure action, Whitburn was charged with constructive notice of Wells Fargo’s superior interest in the property.” Id. While that is certainly true, as noted above an owner of property whose interest was acquired before the filing of a foreclosure complaint and lis pendens is an indispensable party to a foreclosure proceeding. The dicta in Whitburn should not be read to conclude that any subsequent purchaser would have no standing to contest a foreclosure proceeding, even when the interest is acquired prior to the filing of the notice of lis pendens. We do not think that the Second District intended such a result. It merely noted that Whitburn’s interest would always be inferior to the mortgage and thus another reason why post judgment intervention should be denied. Thus, Whitburn is simply inapposite.

The question, then, is whether appellant Trust can assert the affirmative defense of lack of standing to bring the foreclosure proceeding. The Trust obtained title to the property subject to the mortgage, no doubt. Such a purchaser is estopped from contesting a mortgage which is valid on its face. See Eurovest, Ltd. v. Segall, 528 So.2d 482, 483 (Fla. 3d DCA 1988). But contesting standing of a plaintiff to bring a foreclosure action is not contesting the validity of the mortgage itself. Further, if the plaintiff does not have standing, it is not entitled to enforce the note and foreclose on the property. Standing in a foreclosure proceeding requires the plaintiff to show that it is the holder or is in possession of the note at the time of filing suit. See Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016). A subsequent title owner may contest the plaintiffs standing to foreclose on the mortgage to the extent that there is no prejudicial delay to the proceedings occasioned by any transfer of ownership during the pending process. A subsequent purchaser has an interest in assuring that the foreclosing plaintiff actually has the authority to bring the suit and is entitled to raise such a defense so long as they do not cause unreasonable delay to any ongoing proceedings. To hold otherwise would allow a stranger to the note and mortgage to foreclose on the property, and a subsequent purchaser would never have the ability to defend against the taking of a bona fide interest in the property through a foreclosure sale.

Because we hold that the appellant was entitled to allege the Bank’s lack of standing as an affirmative defense, the trial court erred in refusing to allow appellant to assert this defense at trial and in entering final judgment without the Bank establishing its standing to foreclose. We thus reverse the final judgment for a new trial in which appellant’s affirmative defense can be litigated.

Reversed and remanded for further proceedings.

Warner, Ciklin and Klingensmith, JJ., concur.


text:
    Jonathan C. WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2198
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Rehearing Denied October 4, 2017
    Jonathan C. Wright, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Furman O. CLARK, Jr., Petitioner, v. Lala H. CLARK, Respondent.
    CASE NO. 1D17-0337
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Rehearing Denied September 14, 2017
    Furman O. Clark, Jr., pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Juan PANTOJA, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-430
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.

      Juan Pantoja, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Juan Pantoja, who was convicted of sexual battery on a child under twelve by a defendant less than eighteen and lewd or lascivious molestation of a child under twelve by a defendant eighteen or older seeks review of two orders denying three of his postconviction claims that were filed pursuant to Florida Rule of Criminal Procedure 3.850. For the following reasons, we reverse the orders on appeal and remand for further proceedings as set forth herein.

In Ground 1, Appellant alleged that trial counsel was ineffective by advising him to reject a twenty-year plea offer. The postconviction court summarily denied the claim, finding that it was conclusively refuted by the record. While we disagree that the record refutes the claim, summary denial of Ground 1 was proper given that the claim was facially insufficient. See Morgan v. State, 991 So.2d 835, 840 (Fla. 2008) (holding that the appellant’s claim that trial counsel was ineffective in advising him to reject a plea offer because counsel felt she could win at trial was facially insufficient where the appellant failed to allege some specific deficiency on counsel’s part), receded from on other grounds in Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013); see also Drakus v. State, 219 So.3d 979, 982 (Fla. 1st DCA 2017) (reversing the portion of the trial court’s order summarily denying the appellant’s claim that trial counsel was ineffective for advising him to reject a fifteen-year plea offer because counsel was certain that a newly assigned prosecutor would offer a better deal, not because the claim was conclusively refuted by the record as found by the trial court, but because the claim was facially insufficient). On remand, Appellant should be given the opportunity to amend his claim within a reasonable period of time. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007) (holding that a defendant who files a legally insufficient 3.850 motion for failing to meet pleading requirements should be allowed at least one opportunity to amend the motion). Because the post-conviction court did not deny relief on Ground 1 based upon facial insufficiency, Appellant’s failure to raise Spera on appeal does not foreclose reversal on this basis. See Ferris v. State, 996 So.2d 228, 229 (Fla. 1st DCA 2008) (“The trial court did not deny the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue.”).

Turning to Ground 3, in which Appellant alleged that trial counsel was ineffective in failing to alert the trial court that a juror was sleeping during critical testimony, the posteonvictión court denied relief following an evidentiary hearing. In doing so, the postconviction court relied in part upon the “court’s file” in finding that trial counsel alerted the trial court of the situation and that the juror at issue represented that he was listening with his head down. However, no portion of the record was attached to the trial court’s order addressing Ground 3. Nor is that portion of the trial transcript contained anywhere else in the record on appeal. We, therefore, reverse as to Ground 3 and remand for the postcohviction court to attach that portion of the record to its order showing that relief as to Ground 3 was properly denied. See Reynolds v. State, 99 So.3d 459, 486 (Fla. 2012) (noting that a postcon-viction court’s factual findings made following an evidentiary hearing are reviewed under the competent, substantial evidence standard of review).

With respect to Ground 4, in which Appellant alleged that trial counsel was ineffective in failing to object to an erroneous jury instruction, the postconviction court summarily denied the claim, finding that the issue was “specifically raised” during the sentencing hearing. We disagree. While the portion of the sentencing hearing attached to the postconviction court’s order showed that trial counsel argued that the jury returned inconsistent verdicts, there are no record attachments showing what instructions were read to the jury and whether trial counsel objected to some lesser included offenses but not others. We, therefore, reverse as to Ground 4 and remand for the postconviction court to either attach to its order portions of the record that conclusively refute Appellant’s claim or conduct an evidentiary hearing. See McLin v. State, 827 So.2d 948, 954 (Fla. 2002) (explaining that to uphold the summary denial of a postconviction claim, the claim must either be facially invalid or conclusively refuted by the record).

REVERSED and REMANDED for further proceedings.

LEWIS, RAY, and JAY, JJ., CONCUR.