text:
    Andras Janos VASS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-224
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Adam Goodman; Aubrey Webb, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   EMAS, J.

We affirm Andras Janos Vass’s convictions and sentences for racketeering, conspiracy to commit racketeering, three counts of human trafficking, and one count of deriving support from the proceeds of prostitution. Upon our de novo review, Tibbs v. State, 397 So.2d 1120 (Fla. 1981), we hold that thei’e was competent substantial evidence to support the jury’s verdicts, and reject Vass’s argument to the contrary.

We also reject Vass’s contention that trial counsel rendered constitutionally ineffective assistance of counsel in failing to renew, at the close of all the evidence, his previous motion for judgment of acquittal. See Morris v. State, 721 So.2d 725 (Fla. 1998) (holding it is unnecessary for a defendant, at the close of all the evidence, to renew a previous motion for judgment of acquittal to preserve the issue for appellate review); Amend. to Fla. R. Crim. P. 3.380(b), 745 So.2d 319 (Fla. 1998) (amending rule 3.380(b) to reflect the holding in Morris). We decline to reach the merits of Vass’s other assertions of ineffective assistance of counsel; such claims are generally not cognizable on direct appeal, except in the rare circumstance (not present here) where the claimed ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue in the first instance. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987).

Finally, we reject Vass’s claim that the verdict form (submitted to the jury without defense objection) was fundamentally defective because it failed to include interrogatories for the jury to make findings regarding which incidents of racketeering conduct were proven to establish the requisite pattern of racketeering activity in support of the two racketeering offenses. See § 895.02(7), Fla. Stat. (2014) (a “pattern of racketeering activity” means “engaging in at least two incidents of racketeering conduct ....”) We agree with the analysis of our sister court in Thomas v. State, 125 So.3d 874 (Fla. 4th DCA 2013), the relevant facts of which are indistinguishable from the instant case. In Thomas, the defendant was charged with racketeering and racketeering conspiracy, as well as four other crimes, each of which was alleged in the information to constitute a predicate act for the racketeering charges. The racketeering verdict forms failed to include interrogatories for the jury to make findings as to which predicate acts were proven to establish a pattern of racketeering activity. The defendant was convicted on all counts as charged. On appeal, the defendant argued that the verdict form was defective and constituted fundamental error. The Fourth District disagreed, holding:

We conclude that there was no fundamental error in the trial court’s use of the verdict form as the defendant claims. He was charged with one count of racketeering and one count of conspiracy to commit the same, and the State presented evidence supporting only those counts. He was also tried for four additional crimes, each of which was listed as a predicate incident. He was ultimately convicted of each of those crimes. Therefore, it is clear from those verdict forms that the jury unanimously agreed that defendant had committed at least four of the predicate offenses ....

Id. at 876.

In the instant case, as in Thomas, Vass was convicted of racketeering and racketeering conspiracy, as well as four other felonies, each of which was alleged in the information to constitute a separate incident of racketeering conduct underlying the racketeering charges. By its verdict, the jury necessarily determined that Vass engaged in at least four incidents of racketeering conduct. No fundamental error was committed. We find no merit in the remaining issues raised by Vass in this appeal.

Affirmed.

      . The information alleged fifty-four separate incidents of racketeering conduct allegedly occurring on various dates between April 1, 2012 and October 25, 2013.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Antonio CASTRO, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1466
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public . Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Senior Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Antonio Castro, Jr., appeals his convictions for trafficking in amphetamine, possession of cocaine, and possession of drug paraphernalia for which he received concurrent sentences of three years in prison on the felonies and one year in prison on the misdemeanor. He entered an open plea and reserved for appellate review the denial of his dispositive motion to suppress the evidence found during the execution of a search warrant. Because probable cause is lacking and the good faith exception is inapplicable under the circumstances, we reverse the convictions and sentences and remand for Castro’s discharge.

Castro moved to suppress the evidence discovered during a search of his residence that was conducted pursuant to a search warrant. He argued a lack of probable cause and that information in the affidavit contained stale facts. A hearing was held on the motion at which both parties agreed that they were relying on the information within the four corners of the affidavit, along with the returh which showed the date of execution of the warrant. The prosecutor stated that she would not be presenting testimony. The trial court mentioned that sometimes testimony is presented to point out what was omitted from the .'warrant application, and the prosecutor indicated that the State would not be doing so in this case. The defense agreed with the trial court that the motion dealt with legal argument bn what was within the four comers of the affidavit. Thus, we look to the affidavit in detail.

The affiant first .described his experience as a narcotics detective. He then described two narcotics sales by an individual named Adrian Vela-Uribe made to an undercover detective, as follows:

On. 10/09/13, [the undercover detective] met with Adrian Vela-Uribe at Murphy Gas Station located at 36115 Highway 27, Haines City, Polk County, Florida, .33844. Vela-Uribe met with [the undercover detective] to sell two (2) eight balls of powder cocaine (3.5 grams each) for $270,00 U.S. Currency. While at the meet location, [the undercover detective] provided Vela-Uribe with $270.00 U.S. Currency of investigative funds and was provided two (2) plastic baggies of suspected powder cocaine. [The undercover detective]. advised Vela-Uribe that he was interested in purchasing a half ounce (14 grams) of methamphetamine. Vela-Uribe attempted to make several phone calls to his supplier, but was unsuccessful with making contact with them. Vela-Uribe advised [the undercover detective] that he would contact him a little later if he can get the methamphetamine.
Surveillance units kept constant view of Vela-Uribe who was traveling in a 2002 silver in color Chevrolet, bearing Florida tag number 946-PZG. During surveillance, Vela-Uribe was observed arriving at two (2) residences in the Haines City area. While at the second residence, Vela-Uribe contacted [the undercover detective], via telephone call, advising him that he was on his way to pick up the methamphetamine and it would take him approximately twenty (20) minutes. Surveillance units followed Vela-Uribe directly to the area of South 10th Street/Hinson Avenue, Haines City, but lost sight of the vehicle for approximately three to four (3-4) minutes, which is approximately 0,25 miles away from 1010 Ledwith Avenue East, Haines City (Residence to be searched). Surveillance units relocated the Chevrolet in the area of South 10th Street/Hinson Avenue. Vela-Uribe contacted [the undercover detective] advising him that he had the methamphetamine. Constant Surveillance was conducted on the vehicle, which was occupied by Vela-Uribe. Vela-Uribe arrived at the Murphy Gas Station. Vela-Uribe was observed exiting the Chevrolet and making contact with [the undercover detective]. Vela-Uribe provided [the undercover detective] with a baggie of suspected methamphetamine and [the undercover detective] provided Vela-Uribe with $660.00 U.S. Currency. Vela-Uribe was observed entering the Chevrolet and leaving the area. Surveillance units kept a constant view of the Chevrolet as it drove to 1010 Ledwith Avenue, Haines City (place to be searched) after the deal. The Chevrolet was observed parked in front of the place to be searched. Vela-Uribe was observed running up to the front door of the residence. Surveillance units were unable to determine if Vela-Uribe entered the residence at that time. Approximately two (2) minutes later Vela-Uribe was observed entering the Chevrolet and leaving the area.

(Emphasis added.) The affiant then stated that the suspected powder cocaine and methamphetamine both field-tested positive. The total amount of methamphetamine recovered was approximately fourteen grams.

The affiant then described an anonymous tip or tips as follows:

Your affiant has received anonymous tips that Antonio Castro Jr. “Tony” is concealing methamphetamine in his home. The tip further states that Castro’s supplier is a main distributor that sells pounds of methamphetamine. The tip also states that there are scales in the residence and he sells methamphetamine in ounces.

The affiant stated that Castro has had four arrests dating back to 1999 but did not state that any of the arrests were for drug offenses and did not otherwise describe those arrests. Although the affiant stated that the residence was owned by Karelyn Rios, the affiant further stated that Castro listed the address to be searched on his driver’s license and that during the course of the investigation Castro had “been observed at this location several times.” Based on this information, the warrant was issued on October 29, 2013, and was executed on November 5, 2013.

In denying the motion to suppress, the trial court determined that the anonymous tip described was insufficient by itself to establish probable cause and that the undercover buy of methamphetamine at the gas station contained gaps in surveillance. The court found that law enforcement did not observe Vela-Uribe at the residence before the transaction and did not see him enter the residence or make contact with anyone at the residence after the transaction. But based on the totality of circumstances, the trial court found “a factual nexus between the seller and drugs and the residence searched” and that “[t]he nexus is barely but slightly corroborated [by] the vague tip information” that connected the residence to drugs and Castro. The court determined that although “the information is not as strong as it might have been, there is nonetheless sufficient information” in the affidavit “upon which the issuing magistrate could conclude there was a sufficient nexus between illegal narcotics and the residence searched.” The trial court also found that there was no record basis to support a finding that law enforcement made omissions with intent to deceive or with reckless disregard for the truth. Further, the trial court concluded that the information supporting probable cause was not stale.

In evaluating a motion to suppress involving a search warrant, a trial court examines the affidavit to determine if the issuing magistrate had a substantial basis to conclude that probable cause existed. Pilieci v. State, 991 So.2d 883, 892 (Fla. 2d DCA 2008). “This court’s review consists of “ ‘a legal examination of the evidence in the affidavit to determine whether it establishes probable cause— with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.’ ” Barrentine v. State, 107 So.3d 483, 484 (Fla. 2d DCA 2013) (quoting Pilieci, 991 So.2d at 894).

To establish probable cause, a supporting affidavit for issuance of a search warrant “must satisfy two elements: first, that a particular person has committed a crime—the commission element, and second, that evidence relevant to the probable criminality is likely located at the place to be searched—the nexus element.”

Sanchez v. State, 141 So.3d 1281, 1284-85 (Fla. 2d DCA 2014) (quoting Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003)); see also State v. McGill, 125 So.3d 343, 348 (Fla. 5th DCA 2013). “To satisfy the nexus element, the affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed.” McGill, 125 So.3d at 348. It is sufficient if the time period can be established from the affidavit as a whole. Sanchez, 141 So.3d at 1285; Barrentine, 107 So.3d at 485.

The affidavit showed that Vela-Ur-ibe had committed a crime by selling the methamphetamine to the undercover officer. But the affidavit failed to provide information indicating a “fair probability” of finding methamphetamine at Castro’s residence. Pilieci, 991 So.2d at 894 (“At best, the affidavit establishes a slight possibility and not a ‘fair probability’ of finding drugs almost a month after a single sale transaction.”); see also Gonzalez v. State, 38 So.3d 226, 229-30 (Fla. 2d DCA 2010) (“The affidavit contained no allegations that anyone actually saw contraband in the couple’s residence and there were no facts from which the magistrate could conclude that contraband was and would still be located in the residence at the time the warrant issued.”). Here, the nexus to Castro’s residence was lacking.

The affiant provided vague information received from an anonymous tipster. The only information provided concerning Castro’s residence is that Castro “is concealing methamphetamine in his home” and “that there are scales in the residence.” The tipster also relayed that Castro “sells methamphetamine in ounces.” The affidavit did not indicate where the sales took place. Nothing indicates a time frame for when methamphetamine was in the home, the quantity of drugs, or where in the home they would be found. Nothing indicates if the anonymous tipster even personally observed the drugs or had ever been in the residence. The tip does not contain any prediction of future behavior. And there is no information as to the veracity or reliability of the tipster.

In considering the totality of the circumstances, when evidence of the tipster’s veracity and reliability is lacking, there must be sufficient independent corroborating evidence. See State v. Loredo, 129 So.3d 1188, 1191 (Fla. 2d DCA 2014); McGill, 125 So.3d at 349. For instance, in Loredo the affidavit failed to include information regarding the veracity of either of the two informants. 129 So.3d at 1192. But the two informants gave specific details and stated that they had seen large quantities of methamphetamine in the residence to be searched. Id. at 1191. This court determined “that the police surveillance of the residence, together with the detailed information regarding drug transactions at the residence and the other information in the affidavit," which included' the defendant’s history of drug arrests, “provided sufficient corroborating evidence to establish probable cause.” Id. at 1192.

Here, it appears that the affiant attempted to corroborate the anonymous tip with the sale of half an ounce of methamphetamine'by Vela-Uribe to the undercover detective. During the cocaine sale on October 9, 2013, the undercover detective told Vela-Uribe that he wanted to purchase half an ounce of methamphetamine. Vela-Uribe was unable to contact his supplier and told the detective that he would contact the detective if he could get the methamphetamine. Surveillance units followed Vela-Uribe' to two unrelated residences. While at the second residence, Vela-Uribe called the detective and told him that he was on his way to pick up the methamphetamine and that it would take him about twenty minutes. Surveillance units followed Vela-Uribe, but they lost sight of Vela-Uribe’s vehicle for three to four minutes when he was about a quarter mile from Castro’s residence. Surveillance units relocated Vela-Uribe’s vehicle and followed him to the gas station where he sold a half ounce of methamphetamine to the detective for $600. Surveillance units then observed Vela-Uribe drive to Castro’s residence and saw him run to the front door. Vela-Uribe left two minutes later, but law enforcement could not determine if he went into the residence or made contact with anyone in the residence.

The State’s theory is that Vela-Uribe went to Castro’s residence and got the methamphetamine, went to the gas station and sold it, and then returned to Castro’s residence to drop off the money. But the information provided is insufficient to provide a fair probability that methamphetamine would be found in Castro’s home. Simply put, the State’s theory relies upon speculation that Vela-Uribe actually went to Castro’s residence before the sale to obtain the drugs and that Vela-Uribe delivered money to the residence after the sale. Speculation is not a “substitute for concrete facts that would establish probable cause for the search of the residence.” Sanchez, 141 So.3d at 1287. Vela-Uribe never named his supplier and was never seen at Castro’s house prior to the sale. And as far as corroboration of the vague tip that gave no time frame, the tipster relayed that Castro sold- in ounces, but Vela-Uribe sold just half an ounce to the detective. This one sale of half an ounce that was unconnected to Castro’s residence prior to the sale was insufficient to corroborate the tip that an unspecified amount of methamphetamine was • in Castro’s residence at an unspecified time in the past.

Further, no police surveillance of Castro’s residence corroborated the vague tip that methamphetamine was in the residence. Surveillance was Conducted, and Castro was seen at his residence several times. But no drug activity was noted in the affidavit, such as brief visits for sellers to obtain drugs from their supplier or' for sales to be made. Cf. Loredo, 129 So.3d at 1192 (noting, among other things, that “the high volume of traffic consistent with the sale of narcotics” corroborated detailed tips from two informants). And the affidavit mentioned that Castro had four prior arrests since 1999, but the affidavit did not indicate that he had a criminal history for drug offenses. Thus, based on the totality of the circumstances, the information contained in the affidavit did not provide probable cause for issuance of the search warrant for Castro’s residence.

The State also contends that the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), precludes suppression of the evidence in this case. The parties discussed the good faith exception at the hearing with the trial court, but as noted above, neither party introduced any testimony. As the trial court found, the record does not show that law enforcement made any omissions with intent to deceive or with reckless disregard for the truth.

But even without any omissions or misrepresentations by law enforcement, the good faith exception does not apply when “an objectively reasonable officer would have known that the affidavit was insufficient to establish probable cause for the search.” Gonzalez, 38 So.3d at 230. Rather, when it is determined that an affidavit is insufficient to establish -probable cause, “the good faith exception applies'as long as the affidavit was not so lacking in indicia of probable cause as to render official belief in its validity unreasonable.” McGill, 125 So.3d at 352. When there is “a real paucity of facts, a very weak case, the law is well established that where ‘the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.’ ” Mesa v. State, 77 So.3d 218, 223 (Fla. 4th DCA 2011) (quoting Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004)).

Here, even the trial court recognized that the anonymous tip information in the affidavit was “clearly, insufficient on its own to establish probable cause for anything.” But the addition of the undercover purchase is wholly insufficient to show a nexus to Castro’s residence. In arguing for application of the good faith exception, the State contends that-the officer’s reliance on the affidavit was objectively reasonable and that the officer conducted an independent investigation. But that investigation did not provide the nexus between ■ methamphetamine and. Castro’s residence. Castro did pot make the sale, and Castro’s name was .never mentioned. Vela-Uribe was not even seen at Castro’s residence prior to the sale of methamphetamine to the detective, and when Vela-Uribe was seen there after the sale, he was not observed making contact with anyone. The affiant noted that Castro had been seen at his residence several times, but the affiant did not state that any suspicious activity was observed.

The information provided in the affidavit that relies upon speculation is so weak that an objectively reasonable officer would have known that the affidavit was insufficient to establish probable cause for a search of Castro’s residence. Thus, we con-elude the good faith exception is inapplicable and that the trial court should have granted the motion to suppress evidence. Therefore, we reverse Castro’s convictions and sentences and remand for discharge.

Reversed and remanded for discharge.

CRENSHAW and LUCAS, JJ., Concur.


author: PER CURIAM.

text:
    Jason WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-231
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Jason Williams, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

For the second time, Jason Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Williams v. State, 207 So.3d 253 (Fla. 5th DCA 2016), we affirmed the summary denial of Williams’s first, third and fourth claims for relief. However, we reversed the summary denial of his second claim, which asserted that his counsel was ineffective for agreeing to, or failing to object to, portions of the self-defense jury instruction that improperly shifted the burden of proof from the State to him. We then remanded for the trial court to attach portions of the record conclusively refuting that claim or to hold an evidentiary hearing. Williams, 207 So.3d at 254. On remand, the postconviction court again summarily denied Williams’s second claim. This was error.

“A challenge to a jury instruction is properly raised on appeal, but when defense, counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel’s performance through a motion for postconviction relief .... ” Ottesen v. State, 862 So.2d 30, 30 (Fla. 2d DCA 2003). An instruction that shifts the burden of proof in support of a defense to the defendant is inappropriate and cannot be viewed as reasonable trial strategy. Adams v. State, 727 So.2d 997, 999-1000 (Fla. 2d DCA 1999). Accordingly, Williams is entitled to an evidentiary hearing on his second claim for relief. See Hughes v. State, 22 So.3d 132, 135 (Fla. 2d DCA 2009). We reverse the trial court’s order summarily denying Williams’s second claim for relief and remand for an evidentiary hearing.

REVERSED and REMANDED.

SAWAYA, ORFINGER and LAMBERT, JJ., concur.

      . As we explained in Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984), superseded by statute on other grounds as stated in Thomas v. State, 918 So.2d 327, 330 (Fla. 1st DCA 2005),
      [w]hile the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt.

      . The postconviction court attached the original order denying the rule 3.850 motion, our mandate from the direct appeal, and the entire trial transcript to the summary denial order. Rule 3.850 requires that the court attach only “a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief.” Fla. R. Crim. P. 3.850(f)(4) (emphasis added). The court’s approach frustrates appellate review and can alone be grounds for reversal to attach specific records to the summary denial order. See Pullum v. State, 893 So.2d 627, 628-29 (Fla. 2d DCA 2005).


text:
    Solomon ROBERTS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-421
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017
    Solomon Roberts, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.

      Before LAGOA, SALTER, and EMAS, JJ.
   PER CURIAM.

ON ORDER TO SHOW CAUSE

On April 20, 2017, this Court denied Solomon Roberts’s petition for writ of mandamus. On the same date, this Court ordered Roberts to show cause why he should not be prohibited from filing further pro se appeals, petitions, motions or other pleadings in this Court relating to lower tribunal case number F78-5774B.

After carefully considering Roberts’s response to this Court’s show cause order, and the myriad of pro se appeals brought by Roberts, we conclude that good cause has not been shown, and this Court prohibits Roberts from filing any additional pro se pleadings relating to circuit court case number F78-5774B. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) (holding that upon a demonstration of abuse, a court can restrict future pro se pleadings if it first provides a pro se litigant reasonable notice and an opportunity to respond).

Roberts has engaged in the filing of meritless, frivolous, and successive claims, continuing to seek relief from this Court notwithstanding prior adverse determinations on the merits. While we recognize that incarcerated persons must be provided with the full panoply of procedural vehicles with which to challenge the lawfulness of their incarceration, see Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury .,. .”); Spencer, 751 So.2d at 48; Concepcion v. State, 944 So.2d 1069, 1072 (Fla. 3d DCA 2006), the constitutional right of access to the courts is not unfettered. The right to proceed pro se will be forfeited where a party abuses the judicial process by the continued filing of “successive motions which have been heard, considered, rejected, and then raised again.” Concepcion, 944 So.2d at 1072. “As our sister court aptly described it, there comes a point when ‘enough is enough.’ ” Philpot v. State, 183 So.3d 410, 411 (Fla. 3d DCA 2014) (quoting Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995)).

This Court has the inherent authority and duty to strike a balance between a pro se litigant’s right to participate in the judicial process and protecting the judicial process from abuse.'Id. We note that this Court has entered an order barring Roberts from filing any further pro se pleadings relating to circuit court case numbers 82-8169, 82-9856, and 82-15413. See Roberts v. State, No. 3D13-1438 (Fla. 3d DCA Feb. 26, 2014). Moreover, the Florida Supreme Court prohibited Roberts from filing any further pro se pleadings pertaining to his convictions, or sentences in case numbers 78-CF-5774, 82-CF-8169, 82-CF-9866 and 82-CF-45413. See Roberts v. Jones, 213 So.3d 912 (Fla. 2017).

Accordingly, Roberts is prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments, and sentences in lower tribunal case number F78-5774B. See Cruz v. State, 981 So.2d 1272, 1274 (Fla. 3d DCA 2008). We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to this circuit court.case.number unless they have been reviewed-and signed by an attorney who is a duly licensed member of The Florida Bar in good standing. See Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013); Johnson v. State, 915 So.2d 682 (Fla. 3d DCA 2005).

Additionally, any such further and unauthorized pro se filings by Roberts may subject him to appropriate sanctions, including the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017); Whipple, 112 So.3d at 541 (citing Minor v. State, 963 So.2d 797 (Fla. 3d DCA 2007)).

      . The Eleventh Judicial Circuit entered an order barring Roberts from filing further pro se leadings in circuit court case number 82-CF-8169. See State v. Roberts, No. 82-CF-8169 (Fla. 11th Cir. Ct. Jan. 23, 2015).


text:
    Scott E. EASTON, Petitioner, v. NATIONSTAR MORTGAGE, LLC, Respondent.
    CASE NO. 1D17-2578
    District Court of Appeal of Florida, First District.
    Opinion filed July 21, 2017.
    Rehearing Denied August 7, 2017
    Scott E. Easton, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied.

LEWIS, WETHERELL, and OSTERHAUS, JJ., CONCUR.


author: OSTERHAUS, J. WINOKUR, J., BILBREY,, J„

text:
    PHILIP MORRIS USA INC., Appellant, v. Micah DANIELSON as Personal Representative of the Estate and Survivors of Norman Lamar Danielson, Appellee.
    CASE NO. 1D16-234
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017

      William P. Geraghty and Rachel A. Can-field of Shook, Hardy' & Bacon L.L.P., Miami, and Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for Appellant.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, and Matthew D. Schultz of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, for Appellee.
   OSTERHAUS, J.

In this Engle-related case, Philip Morris USA appeals an order granting a new trial on Appellee’s non-economic and punitive damages. We affirm the trial court’s order granting a new trial as to the non-economic damages, but reverse the grant of a new trial on the punitive damages.

I.

The estate and survivors of Norman Lamar Danielson won a jury verdict in a wrongful death lawsuit against the Appellant cigarette company after a three-week trial. But the jury awarded Mr. Daniel-son’s wife Micah Danielson and his children much less than they • expected. It awarded Ms. Danielson $25,000 in economic damages, $0 for pain and suffering, and $325,000 in punitive damages. It awarded Mr. Danielson’s three children $100,000 each for pain and suffering. After the trial, Ms. Danielson moved to modify the verdict for economic damages because the verdict did not honor a stipulation by the parties on economic damages. They had stipulated to $2.3 million in economic damages, which the jury should have accepted. Appellant didn’t oppose Appellee’s request to conform the economic damages verdict to the stipulation. But it did oppose Appellee’s other motion for additur on the non-economic and punitive damages, or alternatively for a new trial. After a hearing, the court entered an order conforming the economic damages to the stipulation and granting a new trial on non-economic and punitive damages. Appellant then appealed the new trial order.

II.

We review new trial orders for abu'se of discretion, with a stronger showing required to reverse an order granting a-new trial than for one denying a new trial. Scott v. Sims, 874 So.2d 21, 22 (Fla. 1st DCA 2004). A trial court has broad discretion in ruling on a motion for new trial. Brown v. Estate of Stuckey, 749 So.2d 490, 494 (Fla. 1999). The trial judge “ ‘is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.’ ” Id. at 496 (quoting Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959)). However, a trial judge may not substitute his view of the facts for those of the jury. Taylor v. Ganas, 443 So.2d 251, 253 (Fla. 1st DCA 1983). A trial court abuses its discretion where the evidence does not support the court’s conclusion, or where the trial court’s determination rests on an incorrect conclusion of law. Schmidt v. Van, 65 So.3d 1105, 1108 (Fla. 1st DCA 2011) (quashed on other grounds by Van v. Schmidt, 122 So.3d 243 (Fla. 2013)).

A. New Trial on Non-Economic Damages

A trial court may grant a new trial if the verdict is excessive or inadequate, against the manifest weight of the evidence, or both. Estate of Stuckey, 749 So.2d at 498. An excessive or inadequate verdict is one that shocks the judicial conscience, or that has been unduly influenced by the jury’s passion or prejudice. Taylor, 443 So.2d at 253.

The trial court granted a new trial on non-economic damages because it found the jury’s verdict both inadequate and against the manifest weight of the evidence. We see no abuse of discretion here. The record supports the trial court’s conclusion in a few different ways. First, the parties stipulated to a $2.3 million amount of economic damages, which.should have been reflected in the jury’s verdict. But instead the jury awarded only $25,000. With the parties’ approval, the court adjusted the verdict higher to the stipulated level of economic damages. In the court’s view, the jury’s misstep on the form and other incidents at trial (discussed further below), demonstrated improper prejudice on the jury’s part against Ms. Danielson and the surviving children that unduly affected the compensatory damage awards. Something similar occurred with respect to the non-economic damages. Defense counsel acknowledged at closing that it would bp reasonable to award $250,000-$300,000 each for Ms. Danielson and her children, but the jury returned a verdict of $0 for Ms. Danielson and $100,000 for each surviving child. Defense counsel’s suggestion, “while certainly not binding upon the jury or the trial court, nonetheless represents the reasoned analysis of trial counsel as to a conservative figure of damages that would be supported by the evidence in this case.” Dyes v. Spick, 606 So.2d 700, 702 (Fla. 1st DCA 1992). Cf. R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 339 (Fla. 1st DCA 2012) (“Although not determinative, the fact that the jury awarded double the amount of compensatory damages requested by [plaintiffs] counsel ... suggests the jury was influenced by prejudice or passion.”).

Second, the trial court expressed concern that the jury framed certain questions in a way the court perceived to be unduly hostile toward Ms. Danielson. For example, the jury asked whether her monetary damages could be given to smoking cessation clinics and cancer research, instead of to her. The court attributed the .jury’s prejudice to the Appellant’s arguments at trial. The court believed that Appellant’s arguments implied that Ms. Danielson, who had a medical background, should be faulted for her husband’s smoking; that she did not care enough about her husband to explain the dangers of smoking to him; that she should bear some fault for the decedent’s continued smoking; and that she sought to cash in on his death. The court pointed, for instance, to Appellant’s counsel’s opening statement highlighting that Ms. Danielson was relieved by her husband’s decision to resume smoking after trying to quit. These arguments, combined with the fact that the record did not demonstrate any strain or hostility in the Danielsons’ marriage or parent-child relationships, lend credence to the court’s finding that the jury’s verdict was the product of adverse passion and prejudice directed against Ms. Danielson. Although we recognize that the jury’s award to each child wasn’t insubstantial, we cannot conclude that the trial court abused its discretion by granting a new trial on the non-economic- damages. See e.g., Miami Dade Cnty. v. Merker, 907 So.2d 1213 (Fla. 3d DCA 2005). (affirming order granting new trial in wrongful death suit where evidence of love and affection between the plaintiff and the deceased was undisputed),

B. New Trial on Punitive Damages

After granting a new trial on the non-economic damages, the trial court’s order concluded that a new trial was required on the $325,000 punitive damages award “[b]ecause the law requires that an award of punitive damages must bear- a reasonable relationship- to the award of compensatory damages.” The order concluded that the punitive damages must be retried because the economic damages award increased and the non-economic damages weren’t yet final, as well as because the jury had “awarded punitive damages .on .a 1:1 ratio with the compensatory damages awarded.” Its conclusion that punitive damages must be retried such that the jury has an opportunity to increase the punitive damages relative to the final compensatory damages award evinces, an incorrect understanding of the “reasonable relationship” that punitive damages must bear to an award of compensatory damages.

The order is wrong that a new trial on punitive damages is required because the compensatory damages award was increased and wasn’t yet final.- The Florida Supreme Court has long “disavowed” a strict rule “that punitive damages must bear some reasonable relation to compensatory damages, because the amount of compensation for loss is an entirely separate matter from the amount of punitive damages.” Arab Termite & Pest Control Inc. v. Jenkins, 409 So.2d 1039, 1042 (Fla. 1982) (citation omitted). This is an Engle case. And similar to the view expressed in Arab Termite, Engle recognized that “an award of compensatory damages is not a prerequisite to a finding of entitlement of punitive damages.” Engle, 945 So.2d at 1262 (emphasis added). “Compensatory and punitive damages serve distinct purposes.” Id. The Engle opinion’s extended discussion of the differences between compensatory and punitive damages highlighted the United States Supreme Court’s observation that these two types of damages serve different functions and require substantively different assessments by the jury:

[Compensatory damages] are intended to redress' the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. [Punitive damages], which have been described as “quasi-criminal,” operate as “private fines” intended to punish the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiffs injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation.

Id. (quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)). Engle concluded its .discussion by noting that “[b]ecause a finding of entitlement to punitive damages is not dependent on a finding that a .plaintiff suffered a specific injury, an award of compensatory damages need not precede a determination of entitlement to punitive damages.” Id. (emphasis added). See also Brown v. Ford, 900 So.2d 646, 648 (Fla. 1st DCA 2005) (noting that punitive damages require a showing “that the defendant acted with malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others”) (emphasis added).

Similar to Arab Termite and Engle, this Court has distinguished between'compensatory and punitive damage verdicts. In Taylor, we reversed a trial court’s decision to grant a new punitive damages trial on the basis of an inadequate compensatory-damages verdict. 443 So.2d at 253. We recognized there that the rationale for granting a new punitive damages trial must stand on its own and not be purely derivative of having granted a new trial on compensatory damages: “the reasons given for granting a new trial must be such as would support a finding that the verdict was against the manifest weight of the evidence or that the jury had been influenced by outside considerations.” Id. The trial court did not attribute either of these other problems to the punitive damages verdict here.

Additionally, the jury instructions below reflected marked differences in the evidence and assessment required of the jury to award non-economic and punitive damages. Compare Phase I Instruction on Non-Economic Damages (requiring non-economic damages to be assessed based upon the “loss of [spousal and parental] companionship and protection ... instruction and guidance ... and their mental pain and suffering as a result of [Mr.] Danielson’s illness and death”) with Phase II Instruction on Punitive Damages (“Punitive damages may be awarded against [Appellant] only on the conduct that is the basis for your finding that [Appellant] is hable to [Appellee] for concealment or omission of a material fact or information and/or agreement to conceal or omit a material fact or information.”). Consequently, the jury’s compensatory and punitive damages verdicts here corresponded to two very different assessments. It does not follow that the same problems that plagued the jury’s defective compensatory damages verdicts also plagued its punitive damages verdict, at least the trial court didn’t conclude that they did.

The trial court concluded that the punitive damages had to be retried because the economic damages had been revised upward to $2.3 million and the amount of non-economic damages also stood to be increased after a new trial. Because of the increasing compensatory damages, the court concluded that a new jury must be given the same opportunity to increase the punitive damages award at a corresponding rate. But increases in the compensatory damages are not a proper basis for granting a new punitive damages trial. Again, compensatory and punitive damages are different; they “serve distinct purposes.” Engle, 945 So.2d at 1262. Courts aren’t at liberty to re-try punitive damages cases simply because they think the award is inadequately low. St. Regis Paper Co. v. Watson, 428 So.2d 243, 247 (Fla. 1983) (noting that the “well settled” rule that a new trial may be ordered when a punitive damages award is excessive does not extend to granting a new trial because the trial court views the punitive damages to be inadequate).

The incorrect amalgamation of damages in this case stems from confusion about the requirement that compensatory and punitive damages bear a “reasonable relationship” to each other. It is true indeed that due process-related concerns attend punitive damage awards that far exceed the size of a compensatory damages award. See § 768.73(1)(a)1., Fla. Stat. (defining an excessive award); Wackenhut Corp. v. Canty, 359 So.2d 430, 435-436 (Fla. 1978) (discussing excessive verdicts). And it is the court’s job to “ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” Engle, 945 So.2d at 1265 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)). As a best practices matter and to mitigate the potential for excessive awards, courts most often try compensatory and punitive damage cases together before the same jury. See, e.g., Webb, 93 So.3d at 339-40. This gives courts “an adequate starting point to compare the lump sum punitive damages amount to compensatory damages to ensure there is some reasonable relationship” and avoid excessive punitive damage judgments. Engle, 945 So.2d at 1265. In Engle, for instance, the $145 billion punitive damages award was reversed because reviewing courts lacked “an adequate starting point to compare the lump sum punitive damages amount to compensatory damages to ensure there is some reasonable relationship.” Id.

But the rule from these precedents is not that punitive damages awards must be vacated every time some facet of the compensatory damages award must be retried. Rather, a jury’s punitive damages award should survive, irrespective of problems with the compensatory damages award, if there remains an adequate starting point for comparing the amount of punitive damages to the compensatory damages and determining that the punitive damages award is not excessive.

In this case, no one argues that the $325,000 punitive damages award is excessive. The relatively small amount of punitive damages (compared against the much larger compensatory damages award) doesn’t render the award defective: “If the jury may choose to award no punitive damages, it may also choose to award as small an amount as it deems appropriate to meet the goals of punishment and deterrence.” St. Regis Paper Co., 428 So.2d at 247. The order below noted a 1:1 ratio in the jury’s previous award of compensatory and punitive damages as a basis for reversing, as though the jury had been asked to render its punitive damages verdict in the form of a ratio instead of a dollar figure. But this wasn’t the jury’s instruction. Rather, the court instructed the jury “to decide the amount of punitive damages, if any, to be assessed as punishment against [Appellant], and as a deterrent to others.” (Emphasis added). The jury awarded $325,000 in accordance with its instructions that required an assessment based on specific punitive damages evidence; comparative numerology didn’t control the jury’s decision. Here, the court’s post hoc observation that the jury’s punitive damages award created a round-number ratio with the compensatory damages award is interesting, but not legally significant to the point of requiring a new trial.

We thus conclude, consistent with our precedent in Taylor, that “[although a trial judge has broad discretion to grant or deny new trial, a judge may not substitute his view of the evidence for that of the jury. A new trial is not to be granted unless no reasonable jury could have reached the verdict rendered.” Taylor, 443 So.2d at 253 (citing Fla. First Nat’l Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA 1981) & Griffis v. Hill, 230 So.2d 143 (Fla. 1969)). In this case, the trial court didn’t find, and we cannot conclude, that no reasonable jury could.have reached the punitive damages verdict rendered, or that, it was against the manifest weight of the evidence. The new trial op the non-economic damages did not require a new trial on the punitive damages as the trial court erroneously concluded. Therefore, we reverse the order granting a new trial on punitive damages and reinstate that verdict.

III.

We therefore AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this .opinion,

WINOKUR, J., CONCURS WITH OPINION; BILBREY, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

WINOKUR, J.,

concurring.

I fully concur in the majority opinion’s reversal of the portion of the order granting a new trial on punitive damages. However, while I concur in the majority’s affir-mance of the portion of the order granting a new trial on non-economic damages, I do so only because “reasonable persons could differ as to the propriety of the action taken by the trial court.” Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla. 1999). I do not favor much of the trial court’s reasoning for granting new trial on non-economic damages. In particular, I question whether awards of $100,000 for each of the decedent’s children for non-economic damages can be viewed as so inadequate that they demonstrate that , the jury was unduly influenced by passion or prejudice. For this reason, I do not join the majority opinion to the extent that it .can be read as endorsing the trial court’s reasons for granting new trial on non-economic damages, other than to acknowledge that reasonable persons could differ on its conclusion. -. . , :

BILBREY,, J„

concurring in part and dissenting in part.

I join in the majority’s decision affirming the trial court’s grant of a new trial on. non-economic damages, Specifically, I agree with and join sections I.,1 II„ and II.A. of the opinion. I respectfully dissent from the decision to reverse the trial court’s order granting a new trial, on punitive damages and therefore do not join sections II.B, or III. of the majority decision.

As'the majority notes, we review orders granting a mew trial for abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999). Furthermore, as the majority correctly states, “a stronger showing of an abuse of discretion is required to reverse an order granting a motion for new- trial than for one denying new trial.” Scott v. Sims, 874 So.2d 21, 22 (Fla. 1st DCA 2004). I do not believe the learned trial judge in one of his last decisions after 35 years, on the bench abused his discretion here.

. A- trial judge cannot typically grant’ 'a new trial based on inadequate punitive damages, but can do so where, as here, there are sufficient findings that the jury was improperly influenced. See St. Regis Paper Co. v. Watson, 428 So.2d 243, 248 (Fla. 1983) (“[A] new trial may be ordered if the trial judge finds that the jury ¿warded an unreasonably small amount of punitive damages because the jury was improperly influenced or because some fraud contaminated' the jury verdict"). The trial judge found that “[t]he jury misapplied the law regarding damages in this case, ignored the Court’s instructions, and was led by adverse passions and prejudicé against the Plaintiff in reaching its verdict regarding damages.” The trial judge’s order speaks of “damages” without distinguishing between compensatory and punitive damages, and is equally applicable to both, Furthermore, the trial judge found that the jury improperly asked irrelevant questions including, “Who is awarded’ punitive damages?” This also supports a finding that the jury was improperly influenced. I therefore respectfully disagree with the majority’s holding that the trial court did not base its grant of a new trial on punitive damages on the jury being improperly influenced. I read many of the trial court’s concerns about the jury’s actions as applicable to both compensatory and punitive damages.

The trial court found that the $2.3 million stipulated as economic damages was not awarded by the jury due to it considering improper factors.':-Therefore the trial court added these ■ economic damages to the final judgment after the verdict.: Because the jury failed to comply with the stipulation as to economic damages due to consideration of improper factors, the trial court fqund in ordering a new trial that the punitive damage award was not proportionate to the harm suffered and the general damages recovered. I cannot say that no reasonable trial judge would do the same. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (quoting Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)) (holding that judicial discretion is abused only where no reasonable judge would “take the view adopted by the trial court”). Since the jury was improperly influenced, it was appropriate for the trial judge to order a new trial on both non-economic and punitive damages.

The majority cites Taylor v. Ganas, 443 So.2d 251 (Fla. 1st DCA 1983), for its decision to reverse the award of a new trial on punitive damages, but I believe that Taylor is easily distinguishable. In Taylor, the order granting a new trial on liability and punitive damages was reversed because it failed “to state the reasons for granting a new trial on these issues with sufficient clarity to facilitate intelligent appellate review.” Id. at 253. Here, the. trial court made the- finding mentioned above and recognized that the $325,000 in punitive damages awarded by the jury equaled the clearly incorrect amount of compensatory damages awarded. Since the jury apparently intended to award equal amounts for compensatory and punitive damages, and since the jury should have awarded at least $2.3 million in stipulated economic damages but did not due to being improperly influenced, the trial court concluded that a new trial was necessary as to punitive damages. Unlike Taylor, we have sufficient information to review the trial court’s decision based on the detailed order granting a new trial.

I would affirm the trial court’s order in full as within the trial court’s broad discretion.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).

      . The dissent disagrees and infers that a paragraph elaborating the trial court’s reasons for ordering "a new trial on non-economic damages” equally sets forth the court’s rationale for ordering a new trial on punitive damages. That short paragraph reads:
      The jury misapplied the law regarding damages in this case, ignored the Court’s instructions, and was led by adverse passions and prejudice against the Plaintiff in reaching its verdict regarding damages. Thus, it is necessary to order a new trial on non-economic damages.

      (Emphasis added). Taking these words at face value, we don’t agree that this paragraph gives the trial court’s reasons for granting a new punitive damages trial. In fact, the order goes on to list its reasons for why "a new trial on punitive damages is also necessitated” in an entirely separate paragraph that is devoted exclusively to punitive damages.

      . Of course, there will always be a ratio that can be calculated in cases involving these two types of damages, sometimes with round numbers and sometimes not. But legally speaking, the ratios aren’t meaningful except insofar as a punitive damages award approaches statutory or constitutional bounds of excessiveness. See § 768.73(1)(a)1., Fla. Stat. (a punitive damages award is not presumed excessive unless it exceeds ‘‘[t]hree times the amount of compensatory damages awarded to each person entitled thereto”); Campbell, 538 U.S. at 425, 123 S.Ct. 1513 ("few awards exceeding a single-digit ratio between punitive and compensatory damages, to a signifl-cant degree, will satisfy due process”). As discussed above, we know already that this case will ultimately be resolved with something less than 1; 1 ratio, which is not statutorily or constitutionally troublesome. This is not a case where the ratio presents an appropriate basis for reversal.

      . See Kevin Robinson, After 35 years, Judge Jones calls it a career, Pensacola News Journal, September 26, 2015, http://www.pnj■ com/ story/news/2015/09/26/years-iudge-iones-calls-career/72882394/ (last visited June 14, 2017).


author: LAGOA, J.

text:
    Tyrone RAHMINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2742
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Tyrone Rahmings, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ JJ.
   LAGOA, J.

Defendant, Tyrone Rahmings, appeals from the trial court’s order denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Defendant argues that reversal is warranted in light of Atwell v. State, 197 So.3d 1040 (Fla. 2016). The State concedes that on the face of the motion the case should be remanded for further proceedings but contends that any remand should be without prejudice to the trial court conducting an evidentiary hearing to determine Defendant’s age at the time of the offenses committed in ease numbers F81-8037A, F81-12617, and F81-12733. We agree.

The record reveals a discrepancy exists regarding the Defendant’s correct date of birth. The arrest affidavit contained in the record shows Defendant’s date of birth as December 5, 1963. The Florida Department of Corrections, however, lists Defendant’s date of birth as December 5, 1962. Because the offense dates for the Defendant’s crimes range from March to May 1981, upon remand, the trial court shall hold an evidentiary hearing to determine the Defendant’s correct date of birth and to determine whether Defendant was a juvenile at the time of the offenses. If Defendant’s date of birth proves to be December 6, 1962, Defendant would be ineligible for relief under Atwell. However, if Defendant’s date of birth proves to be December 5, 1963, the trial court shall resentence Defendant pursuant to the sentencing provisions enacted in chapter 2014-220, Laws of Florida. See Atwell, 197 So.3d at 1050.

Reversed and remanded for evidentiary hearing.


author: SUAREZ, J.

text:
    Arturo Ortiz SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1164
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Rehearing Denied August 15, 2017
    Arturo Ortiz Soto, in proper person.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   SUAREZ, J.

Arturo Ortiz Soto appeals from the trial court’s denial of his petition for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800, as well as denial of his petition for habeas relief. We affirm as to both.

Soto accepted the State’s plea offer to resolve four cases which were pending against him, one of which was this case, F08-24995. In accepting a negotiated plea, Soto effectively waived the non-jurisdictional issues he raised in prior postconviction motions and which he raises again here. See Haselden v. State, 386 So.2d 624, 624 (Fla. 4th DCA 1980) (holding the failure to timely raise a defect in an information constitutes a waiver of the defect unless the information wholly fails to charge a crime); Tracey v. State, 130 So.2d 605 (Fla. 1961) (holding failure to allege an essential element of an offense does not alone render the charge void as wholly failing to state a crime, and failure to timely object to this defect constitutes waiver). See also Novaton v. State, 634 So.2d 607 (Fla. 1994) (holding a defendant waives any double jeopardy claim that affects his conviction or sentence by entering into a negotiated plea agreement wherein the defendant agrees to each crime and sentence); Zaetler v. State, 616 So.2d 461 (Fla. 3d DCA), rev. denied, 626 So.2d 210 (Fla. 1993) (voluntary guilty plea plus agreement on sentence waived any double jeopardy objection as to convictions and sentences). As such, we affirm.

Affirmed.


author: SCALES, J.

text:
    AMERICAN FEDERATED TITLE CORPORATION, Appellant, v. Allen GROSS & Edith Gross, Appellees.
    No. 3D14-758
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017.
    Arnstein & Lehr LLP, and Susan E. Trench and Franklin L. Zemel (Fort Lauderdale), for appellant.
    Law Offices of Sheldon Zipkin, P.A., and Sheldon Zipkin, for appellees.
    Before EMAS, LOGUE and SCALES, JJ.
   SCALES, J.

On Motion to Withdraw Previous Opinion

On April 8, 2015, this Court issued a per curiam affirmance of the trial court’s dismissal, with prejudice, of Appellant American Federated Title Corporation’s claim for malicious prosecution and abuse of process against Appellees Allen Gross and Edith Gross. Like the trial court’s dismissal order, our affirmance cited to Wolfe v. Foreman, 128 So.3d 67 (Fla. 3d DCA 2013).

After denying American Federated’s post-opinion motions, this Court issued its mandate on May 29, 2015. Less than two months later, on July 15, 2015, the Fourth District Court of Appeal issued its opinion in Fischer vs. Debrincat, 169 So.3d 1204 (Fla. 4th DCA 2015). In Debrincat, our sister court declined to follow this Court’s decision in Wolfe, and certified conflict between the two eases. Fla. R. App. P. 9.030(a)(2)(A)(iv). On August 6, 2015, the non-prevailing party in Debrincat sought to invoke the Florida Supreme Court’s jurisdiction to resolve this conflict by filing a Notice of Discretionary Jurisdiction with the Supreme Court. Shortly thereafter, on August 20, 2015, American Federated filed with this Court its motion to recall mandate pursuant to section 43.44 of the Florida Statutes and Florida Rule of Appellate Procedure 9.340(a) (section 43.44 and rule 9.340(a) provide a mechanism for a party to seek to have an appellate court recall its mandate, if the motion is made within 120 days of the issuance of a mandate).

We granted American Federated’s motion and recalled our May 29, 2015 mandate pending the Florida Supreme Court’s jurisdictional determination (and, if jurisdiction were accepted, merits determination) of the Debrincat case. The Florida Supreme Court accepted jurisdiction, and, on February 9, 2017, the Florida Supreme Court issued its opinion in Debrincat v. Fischer, 217 So.3d 68 (Fla. 2017), which disapproved of Wolfe v. Foreman, thereby vitiating this Court’s decision in the instant case.

American Federated’s appeal to this Court was occasioned by the trial court’s March 10, 2014 dismissal, with prejudice, of American Federated’s claims against the appellees sounding in malicious prosecution and abuse of process. These claims were contained in counts IV and IX of American Federated’s August 19,2013 second amended complaint. The trial court’s reasoning, based on Wolfe v. Foreman, was that the litigation privilege barred American Federated’s action against the appellees.

Because the Florida Supreme Court in Debrincat has disapproved of Wolfe v. Foreman, we grant American Federated’s motion, withdraw our April 8, 2015 opinion, reverse the trial court’s March 10, 2014 dismissal order, and remand to allow ap-pellees to file, within twenty days of our renewed mandate in this case, a renewed response to American Federated’s second amended complaint.

Motion to withdraw previous opinion granted; reversed and remanded with instructions consistent with this opinion.


text:
    Johnny Bernard MCGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3785
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017

      James S. Purdy, Publie Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Johnny Bernard McGee appeals his judgment and sentence for robbery with a firearm, improper exhibition of a firearm, possession of a firearm by a convicted felon, and false imprisonment. McGee’s primary contention upon appeal is that the trial court erred in handling a discovery violation caused by the late disclosure of a videotape depicting the robbery. We affirm on this issue without discussion.

However, McGee’s written judgment and sentence contain a scrivener’s error. In Count Four, they indicate that McGee was convicted of false imprisonment with a weapon, but the jury found McGee guilty of the lesser included offense of false imprisonment. The State concedes error. Accordingly, we remand for correction of this scrivener’s error.

AFFIRMED in part; REMANDED to correct scrivener’s error.

SAWAYA, WALLIS, and EISNAUGLE, JJ., concur.


text:
    Bryan A. SPELLERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1231
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017
    Bryan A. Spellers, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Bryan Spellers appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He argues that the jury’s special finding that he discharged a firearm was insufficient under Apprendi because the jury was not instructed that they had to make the special finding beyond a reasonable doubt. Although the trial court is correct that “Florida law does not require an express indication that special findings are made beyond a reasonable doubt when such indication may be inferred from the record,” see State v. Woodall, 216 So.3d 30, 33 (Fla. 6th DCA 2017), here, nothing may be inferred from the record because no record was attached to the order. Accordingly, we reverse the order summarily denying Spellers’ claim and remand for attachment of the records conclusively refuting his claim.

REVERSED AND REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


text:
    Marko CAPERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1887
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017
    Blaise Trettis, Public Defender, and Michael Pirolo, Assistant Public Defender, Viera, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 20, 2017, order denying Petitioner’s motion for post-conviction relief, filed in Case No. 2014-CF-0428-E, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and EDWARDS, JJ., concur.


text:
    Keon Tiquan WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1138
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017
    Keon Tiquan Williams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Ortiz v. State, 9 So.3d 774, 775 (Fla. 4th DCA 2009) (“[f]ailure to obtain an on-the-record personal waiver of the right to a PSI is not required under current supreme court precedent, and it does not constitute fundamental error.”); Barton v. State, 706 So.2d 399, 400 (Fla. 2d DCA 1998) (“Because the appellant bargained for a habitual offender sentence and signed the plea form which clearly contemplated a habitualized sentence, one which he does not contest he qualifies for, he effectively waived the requirement of the presentence investigation report.”); Likely v. State, 583 So.2d 414, 414-15 (Fla. 1st DCA 1991) (“A defendant’s knowing waiver of the procedural rights accorded by § 775.084, the habitual offender statute, precludes any relief from the trial court’s failure to strictly follow the statute.”).


text:
    Jerry RIDGEWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1024
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017
    Jerry Ridgeway, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   SUAREZ, J.

Jerry Jerome Ridgeway appeals from the summary denial of his motion to correct credit for time served. We reverse.

Ridgeway alleges he was not given proper credit for time served in Texas and South Carolina while on hold for transfer to Dade County on a fugitive warrant. There is no evidence in the record before us to show Ridgeway was not entitled to the credit for time served prior to sentencing that he alleges. But see Morales v. State, 970 So.2d 387 (Fla. 3d DCA 2007) (granting a defendant credit for time served outside of the state of Florida on unrelated charges, when a warrant or de-tainer is issued by this state, is discretionary, not mandatory).

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

      . A motion seeking additional credit for time served is normally brought pursuant to Florida Rule of Criminal Procedure 3.801.


text:
    Javier BERMUDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-818
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017

      Javier Bermudez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   SUAREZ, J.

Javier Bermudez appeals from the summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. We reverse.

Bermudez asserts that the sentencing transcript will show that he did not waive credit for time served. Neither the transcript nor the sentencing documents are in the record on appeal. See Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (“Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.”); Isaac v. State, 992 So.2d 304 (Fla 3d DCA 2008) (same).

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Ronald REID, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1997
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017.

      Ronald Reid, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   LAGOA, J.

Defendant, Ronald Reid (“Reid”), appeals from the trial court’s order denying his motion for reduction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Because the appeal is taken from a non-appealable order, we dismiss.

On February 2, 2016, Reid entered into a negotiated global plea with the State and was sentenced to 96,22 months as a habitual felony offender. On March 14, 2016, Reid filed a Rule 3.800(c) motion for reduction or modification of sentence. On June 9, 2016, the trial court denied the motion and found:

[T]his Court does not have the legal authority to modify or reduce a sentence entered pursuant to a plea agreement between the State of Florida and the Defendant. State v. Gutierrez, 10 So.3d 158 (Fla. 3d DCA 2009). The Defendant’s sentence, imposed by this Court on February 2, 2016, was pursuant to an agreement entered by the Defendant with the State of Florida. Defendant cannot circumvent the plea bargain by filing a motion to mitigate.

This timely appeal followed.

It is well-established that “[a]n order denying, on the merits, a motion for reduction of sentence under Florida Rule of Criminal Procedure 3.800(c) ... is not an appealable order.” Clewis v. State, 715 So.2d 1129, 1129 (Fla. 3d DCA 1998); see also, McKinzy v. State, 949 So.2d 1153 (Fla. 3d DCA 2007); Royal v. State, 736 So.2d 157 (Fla. 3d DCA 1999); Lusskin v. State, 717 So.2d 1076 (Fla. 4th DCA 1998); Bourjolly v. State, 623 So.2d 870 (Fla. 3d DCA 1993). Accordingly, because the order at issue is not appealable, we dismiss the appeal.

Appeal dismissed.

      . In contrast, an order granting a Rule 3.800(c) motion that reduces a sentence imposed pursuant to a negotiated plea constitutes an appealable order. As this Court concluded in State v. Jordan, 783 So.2d 1179, 1181 (Fla. 3d DCA 2001), the State, pursuant to section 924.07, Florida Statutes, is authorized "to appeal two types of sentences: 1) a sentence that is illegal, and 2) a sentence imposed 'below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.’” A reduced sentence granted by a trial court which constitutes a downward departure sentence is ap-pealable by the State under section 924.07(1 )(a), Florida Statutes. See State v. Swett, 772 So.2d 48 (Fla. 5th DCA 2000); cf. Jordan, 783 So.2d at 1182.


text:
    Z.J., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2396
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 2, 2017
    Jessica A. Travis, Jessica Travis, P.A, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Z.J., a juvenile, petitions for a writ of habeas corpus, seeking immediate release from secure detention. We grant the petition to the extent set forth in this opinion.

Z.J. was arrested on July 6, 2017, and was ordered into secure detention the next day, following her entry of a no contest plea to the charge of grand theft of a motor vehicle, a third-degree felony. The detention order provided, in part, that Z.J. be released in no later than 21 days, “unless an adjudicatory hearing has begun or a subsequent modification order is entered.” Five days later, the court ordered that the juvenile remain detained and set a “DISPOSITION/UFC” hearing for August 22, 2017.

In seeking habeas corpus relief, Z.J.’s sole argument is that she is being detained longer than the term authorized in section 985.26 of the Florida Statutes (2017), which reads, in part:

985.26 Length of detention
(2) A child may not be held in secure or nonsecure detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced in good faith by the court. However, upon good cause being shown that the nature of the charge requires additional time for the prosecution or defense of the case, the court may extend the length of detention for an additional 9 days if the child is charged with an offense that would be, if committed by an adult, a capital felony, a life felony, a felony of the first degree, or a felony of the second degree involving violence against any individual.
(3) Except as provided in subsection (2), a child may not be held in secure or nonsecure detention care for more than 15 days following the entry of an order of adjudication.

The State responds that the extension order was entered based on the agreement of both parties, after the court’s finding that Z.J. was a flight risk. Z.J. asserts “even if it is found that the State requested a continuance, which was not formally applied for or heard,” then the trial court should hold the hearings contemplated in section 985.26(4). That subsection reads:

985.26 Length of detention
(4) The time limits in subsections (2) and (3) do not include periods of delay resulting from a continuance granted by the court for cause on motion of the child or his or her counsel or of the state. Upon the issuance of an order granting a continuance for cause on a motion by either the child, the child’s counsel, or the state, the court shall conduct a hearing at the end of each 72-hour period, excluding Saturdays, Sundays, and legal holidays, to determine the need for continued detention of the child and the need for further continuance of proceedings for the child or the state.

The trial court’s authority to place a juvenile, who is charged with or found to have committed delinquent acts, in secure detention is entirely statutory. Therefore, strict compliance with section 985.26 is necessary. E.g., J.S. v. State, 182 So.3d 890 (Fla. 5th DCA 2016) (citing B.R. v. State, 145 So.3d 196, 198 (Fla. 2d DCA 2014)).

The most recent order supplied by the parties commands that Z.J. remain detained, with no end date specified, and sets a hearing for August 22, 2017. Neither party has supplied a transcript, and the “Setting Hearing Order” does not explain why the court ordered ongoing detention. Thus, unless the trial court granted a continuance for cause, this was error. See § 985.26(2) (forbidding pre-adjudication detention longer than twenty-one days); § 985.26(3) (forbidding post-adjudication, predisposition detention longer than fifteen days); see also M.D.E. v. State, 206 So.3d 152, 153-54 (Fla. 5th DCA 2016) (accepting State concession that child detained longer than twenty-one days without adjudicatory hearing was error).

Accordingly, on remand, the trial court must either order Z.J. released or, if a continuance has been granted, the trial court must review the case every seventy-two hours.

PETITION GRANTED; CAUSE REMANDED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, Appellant, v. Charles LIPARI, Appellee.
    Case No. 5D16-156
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017

      Melanie S. Weseman, of Pollack & Ro-sen, P.A., Coral Gables, and Dayle M. Van Hoose, of Sessions, Fishman, Nathan & Israel, LLG, Tampa, for Appellant.
    Jordan T. Isringhaus, Ian R. Leaven-good and G. Tyler Bannon, of Leavenlaw, St. Petersburg, for Appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

Upon consideration of Appellee’s motion for rehearing and clarification, our opinion of May 19, 2017, is withdrawn and the following substituted therefor. The motion for rehearing is denied, and the concurrent motion for clarification is granted in part.

The National Collegiate Student Loan Trust 2007-1 (“NCT”) appeals a final summary judgment, entered in favor of Charles Lipari in an action to collect on a note. Appellee’s son, Nicholas Lipari, entered into a student loan agreement with JPMorgan Chase Bank, N.A. The loan obligation was co-signed by Appellee. Nicholas Lipari failed to make payment, and the loan went into default. NCT then filed an action to collect against both Appellee and his son. Appellee contends that NCT failed to provide notice of an assignment of the debt to him as required by the Florida Consumer Collection Practices Act (“FCCPA.”), section 559.715, Florida Statutes (2007), prior to filing suit. Appellee further contends that notice of the assignment is a condition precedent to the filing of a collection lawsuit under Florida law. The trial court agreed and entered judgment in favor of Appellee. We disagree and reverse.

The FCCPA permits a creditor to assign the “right to bill and collect a consumer debt.” § 559.715, Fla. Stat. (2007). In so doing, such an assignee is required to give written notice to the debtor within thirty days after assignment. According to its plain language, the notice requirement contained in section 559.715 does not apply to an assignee that takes all rights to the consumer debt. Deutsche Bank Nat’l Tr. Co. v. Hagstrom, 203 So.3d 918, 921 (Fla. 2d DCA 2016) (“[Sjection 559.715 applies only to assignees of the right to bill and collect a consumer debt not to assignees of the debt itself.”). Instead, it applies only to an assignee of the right to “bill and collect.” In the instant case, the entire note originally made by JPMorgan Bank, N.A. was assigned to NOT. No rights were retained by the assignor. Therefore, section 559.715 does not apply.

Moreover, even if NOT were an assignee as contemplated by the FCCPA, notice of assignment is not a condition precedent to filing suit. Rather, section 559.715, Florida Statutes (2007), merely requires notice “within 30 days after the assignment.” The Legislature knows how to create a condition precedent when it so desires, and it did not do so here. While failure to properly provide a notice may violate the FCCPA in certain circumstances, there is simply no language in the statute to suggest that such a notice is a condition precedent to suit. Accord Bank of Am., N.A. v. Siefker, 201 So.3d 811 (Fla. 4th DCA 2016) (interpreting the post-2010 version' of section 559.715); Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215 (Fla. 2d DCA 2016) (interpreting the post-2010 version of section 559.715). In short, it is not for the court to rewrite the statute, and we decline Appellee’s invitation to do so.

Accordingly, we reverse the summary judgment entered in favor of Appellee and remand the matter to the trial court.

REVERSED and REMANDED.

EVANDER, BERGER, and EISNAUGLE JJ., concur.

      . We note that Siefker and Brindise were decided after the Legislature amended section 559.715 in 2010 to provide:
      This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.


text:
    Jashua DANIEL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2006
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    Jashua Daniel, Jasper, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed ■with the trial court and be treated as the notice of appeal from the July 29, 2016, judgment and sentence in Case No. 2015-CF-8265-B, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and LAMBERT, JJ., concur.


text:
    B.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2292
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    Robert Wesley, Public Defender, Orlando, and, Anthony Elliot, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 6, 2017, judgment and sentence, in Case No. 2016-CJ-5033-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and EDWARDS, JJ., concur.


text:
    Kelly LOUDERMILK, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1786
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    Kelly Loudermilk, Brooksville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 11, 2017 order denying Petitioner’s motion for new trial, filed in Case No. 2014-CF-1495 in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and EDWARDS, JJ., concur.


author: WALLIS, J.

text:
    Brian FOGARTY and Christine Fogarty, Appellants/Cross-Appellees, v. NATIONSTAR MORTGAGE, LLC, and Seagrove Neighborhood Association, Inc., Appellees/Cross-Appellants.
    Case No. 5D16-3193
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    D. Brad Hughes and Kayla A. Haines, of Jimerson & Cobb, P.A., Jacksonville, for Appellants/Cross-Appellees.
    Nancy M. Wallace, of Akerman LLP, Tallahassee, William P. Heller, of Aker-man LLP, Fort Lauderdale, and Eric M. Levine, of Akerman LLP, West Palm Beach, for Appellee/Cross-Appellant, Na-tionstar Mortgage, LLC.

      Michael J. McCabe and Michelle P. Haines, of McCabe Law Group, P.A., Ponte Vedra Beach, for- Appellee/Cross-Appellant, Seagrove Neighborhood Association, Inc.
   WALLIS, J.

Brian and Christine Fogarty (“Borrowers”) appeal a final judgment of foreclosure in favor of Nationstar Mortgage, LLC (“Nationstar”), arguing the trial court improperly denied their motion for involuntary dismissal. In its cross-appeal, Na-tionstar argues the trial court erred ■ by omitting interest and escrow from the judgment and by dismissing appel-lee/cross-appellant, Seagrove Neighborhood Association, Inc. (“Seagrove”), as a, superior lienholder. We affirm the trial court’s denial of Borrowers’ motion for involuntary dismissal without discussion. However, because the trial court improp-' erly excluded interest and escrow amounts, we reverse and remand for modification of the final judgment. Additionally, we reverse the trial court’s dismissal and’ remand for Seagrove’s reinstatement as a party to the foreclosure action.

FACTS

In 2007, Borrowers executed a note and mortgage for $352,000 in favor of SunTrust Mortgage, Inc. (“SunTrust”). In December 2010, Nationstar - sent Borrowers a welcome letter notifying them that it had replaced SunTrust as the servicer of their mortgage, In April 2013, Nationstar sent Borrowers a default letter, alleging a default date of November 11, 2009, and requiring the immediate payment of $124,082.20 to cure the default. After Borrowers failed to cure the default, Nations-* tar filed a foreclosure complaint, seeking “$340,795.31 that is due on principal on the Note and Mortgage, interest from October 1, 2009, late charges, costs of collection and reasonable attorney’s fees, and such other expenses as may be permitted by the mortgage.” The complaint also included Seagrove as a defendant, explaining that any interest it may claim in the mortgaged property “is subordinate, junior, and inferior to the lien of [Nationstar’s] Mortgage.”

Seagrove filed an answer and affirmative defenses seeking, inter alia, “a judgment determining that [Seagrove’s] interest is superior to [Nationstar’s] mortgage,” and citing the recorded declaration of charter; easements, covenants, and restrictions for the neighborhood to support its entitlement to expenses .and assessments. Borrowers also answered the complaint, asserting, as affirmative defenses, lack of standing, failure to satisfy a condition precedent, and lack of certification.

The case proceeded to trial in March 2016. At trial, Nationstar called one of its senior default case specialists. Through this witness, Nationstar successfully admitted the note, the mortgage, the welcome letter, the default letter, and its payment history for the mortgage. At the close of trial, Borrowers moved for involuntary dismissal, arguing the trial court improperly admitted the loan payment history and, thus, Nationstar failed to establish the amount due. Borrowers further argued the evidence failed to establish any amounts other than the principal, such as interest or escrow. Seagrove also moved for involuntary dismissal, arguing Nations-tar presented no evidence to rebut Seag-rove’s claim that it had a superior lien position relative to the mortgage. In response to Seagrove’s motion, Nationstar requested judicial notice of the recorded general warranty deed for the subject property, as well as the -recorded mortgage, to show that,- as a first mortgage, it had “priority over the homeowner’s association lien.” The trial court ultimately ruled as follows:

Based on the testimony that I received today and the arguments that were made, I’m going to deny the motion for involuntary dismissal; however, I’m going to find for—the only testimony that I think I can definitely put my finger on is the amount of principal that was described. So I’m going to find for the plaintiff in the principal amount of $340,795.31. And that is—and find that the homeowner’s association, who is Seagrove Neighborhood Association, Inc., as their lien is superior to the mortgage and they are not-.foreclosed; they are dismissed from the action.

Accordingly, the final judgment of foreclosure awarded Nationstar only the principal balance of $340,795.31.

INTEREST AND ESCROW

Nationstar argues the trial court improperly limited the award to only principal, ignoring the easily calculable interest and escrow amounts. In a typical foreclosure case, the plaintiff “proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage.” Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014). Furthermore, “[generally, in a foreclosure action, unpaid principal and interest are ‘liquidated damages.’ ” Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (quoting Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994)). “Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Asian Imports, Inc., 633 So.2d at 552.

At trial, Nationstar’s witness'testified to the fixed interest rate—6,25%—and unpaid principal—$340,795.31—necessary for determining the amount of interest due. The payment history and note further support these figures. Nationstar also provided the trial court with the figures necessary to determine the escrow amount. The witness specifically addressed escrow amounts as follows:

Q Were there any escrow advances also delineated in the payment history?
AYes.
Q And if you were to add them up, would they be—would they concur with the amounts that are due or being sought for hi the judgment?
AYes.
Q And all those numbers come from the payment history?
AYes.

Indeed, the payment history includes a column showing escrow disbursements, labeled “ESCROW.”

“Values awarded in a foreclosure judgment must be based on competent, substantial evidence.” Boyette v. BAC Home Loans Servicing, LP, 164 So.3d 9, 10 (Fla. 2d DCA 2015). The witness’s testimony, combined with the payment history and the note, provided the trial court with competent, substantial evidence of the fixed interest rate and escrow disbursements. Using this trial evidence, the trial court can easily calculate Nationstar’s interest and escrow amounts. See Salauddin v. Bank of Am., N.A., 150 So.3d 1189, 1190 (Fla. 4th DCA 2014) (“Since the amount of interest from the time the homeowner defaulted on the loan until May 1, 2012, was based on the starting fixed interest rate (eight percent), the amount of interest owed for those months is supported by the note and payment history.”); cf. Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 983-84 (Fla. 2d DCA 2016) (reversing an award of interest where “[t]he bank did not introduce records in support of the claimed interest or the actual amount contained in the final judgment” and failed to demonstrate “what the applicable interest rate was from the time of default or how much interest accrued from that point forward”). Thus, we remand for the trial court to modify the foreclosure judgment to include the interest and escrow amounts.

LIEN SUPERIORITY

Nationstar argues the trial court improperly dismissed Seagrove as a superior lienholder to Nationstar. We reverse the dismissal and remand for the trial court to reinstate Seagrove as a party to this litigation. Because neither party presented competent evidence to establish which one had a superior interest, “[o]n remand, either party may request an evidentiary hearing to resolve this issue.” See Hidden Ridge Condo. Homeowners v. Greentree Servicing, LLC, 167 So.3d 483 (Fla. 5th DCA 2015) (citing Schroth v. Cape Coral Bank, 377 So.2d 50 (Fla. 2d DCA 1979)).

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

PALMER and LAMBERT, JJ., concur.