author: MORRIS, Judge.

text:
    GASPAR'S PASSAGE, LLC, an Ohio limited liability company, Appellant, v. RACETRAC PETROLEUM, INC., a Georgia corporation, Appellee.
    Case No. 2D17-55
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    Nicole Deese Newlon and William P. Cassidy, Jr., of Johnson & Cassidy, P.A., Tampa, for Appellant.
    Mary Ellen R. Himes and David O'Quinn of Fidelity National Law Group, Fort Lauderdale, for Appellee.
   MORRIS, Judge.

Gaspar's Passage, LLC, appeals a final judgment entered in favor of RaceTrac Petroleum, Inc., on its amended counterclaim for an equitable lien. This action is the result of a dispute over the sale of commercial property in Pasco County that had been held in trust. RaceTrac purchased the property, but subsequent to the sale, one of the trust beneficiaries challenged the trustee's authority to enter into and complete the sale. As a result, Gaspar, the successor trustee, sued the title insurance company and RaceTrac. RaceTrac, in turn, filed two counterclaims against Gaspar for an equitable lien and unjust enrichment as well as a cross-claim against the original trustee and a third-party complaint against the original trustee and one of the trust beneficiaries. The counterclaims against Gaspar were based on RaceTrac's assertion that it had paid off various liens, back taxes, and certain mortgages. Although the trial court determined that RaceTrac had wrongfully obtained the property, it also determined that RaceTrac was entitled to an equitable lien for the amount of money it expended in acquiring the property. Thereafter, the trial was continued on the remaining issues to permit RaceTrac to add indispensable parties. In this appeal, Gaspar argues that the trial court erred by refusing to permit it to take a deposition of RaceTrac's expert witness or to add additional witnesses or exhibits after granting the continuance of the trial. We agree and therefore reverse on this issue. We affirm the other issues raised by Gaspar, but we note that our reversal may necessitate reconsideration of those issues on remand.

BACKGROUND

During the pendency of the proceedings below, Gaspar filed an amended motion for partial summary judgment seeking to void the quitclaim and general warranty deeds that RaceTrac obtained during the sale of the property. The trial court granted the motion and voided the deeds, finding that the trustee had lacked authority to sell the property.

A bench trial commenced in March 2015, but upon RaceTrac's request, the trial court continued the trial to allow RaceTrac to amend its cross-complaint to add additional trust beneficiaries as indispensable parties to the action. During a discussion regarding the continuation, the trial court indicated that it expected that additional discovery would be necessary. Specifically, the trial court stated: "So I am going to continue this. If there needs to be some discovery taken about this, sobeit [sic]. But I'm going to continue this and allow that to happen."

The trial court also determined that RaceTrac was entitled to an equitable lien in the amount of $1,841,387.83 subject to an upward adjustment if the trial court later determined that an adjustment was necessary. That sum was comprised of the amount that RaceTrac paid to the trust's lender plus one-half of the amount RaceTrac paid to satisfy a second mortgage on the property. Accordingly, the trial court entered a partial final judgment voiding the deeds and awarding RaceTrac the equitable lien.

RaceTrac subsequently filed its amended counterclaim, cross-claim, and third-party complaint. The changes relevant to this appeal were the addition of two indispensable parties (the original trustee and a trust beneficiary) to the claims against Gaspar for an equitable lien and unjust enrichment as well as RaceTrac's request for an equitable lien and judgment that, for the first time, included amounts for "carrying costs and expenses and the value of improvements incurred in the Subject Property since July 21, 2011." RaceTrac's original demand for relief did not include a request for carrying costs and expenses or the value of improvements. As a result of RaceTrac's amended pleading, Gaspar amended its answer and affirmative defenses to include defenses of setoff and the exclusion of rental value from the compensation due to RaceTrac for any improvements it made to the property. After the filing of its amended counterclaim, cross-claim, and third-party complaint, RaceTrac engaged in limited discovery.

A March 3, 2016, hearing was conducted to address a motion for a supersedeas bond, a motion for stay in RaceTrac's separate appeal, a motion to compel, and a motion to extend RaceTrac's lis pendens on the property. But at the hearing, RaceTrac raised the issue of whether Gaspar could engage in further discovery in preparation for the continued trial that was scheduled for November 2016. This issue had not been previously raised and was raised without notice to Gaspar. After other discussions not relevant to this appeal and after requesting a date for the continued trial, RaceTrac's counsel brought up the issue of one of RaceTrac's experts. The following discussion then ensued in relevant part:

[RaceTrac's counsel]: I don't know if you're going to open this up-essentially, we have the same parties-if you're going to open up the whole calendar to more discovery and experts and all that or if you're going to say, "Look. You guys already did this. We're not going to take a second bite at the apple."
The Court: Yeah. We're starting from where we stopped.
[RaceTrac's counsel]: Okay.
The Court: We're not starting over.
[RaceTrac's counsel]: Okay. Okay. Okay. But I didn't know if they were going to have another bite at the apple for an expert, because we have an expert who essentially was going to testify. We have a witness from RaceTrac who's going to testify about all the-the engineer.... [A]nd then ... a real estate expert to testify about what value [the modifications that RaceTrac made] bring to the property. Those are essentially the two witnesses we have left. I don't know if we'll have to add testimony.
The Court: Those are not new witnesses.
[RaceTrac's counsel]: No. Those are the witnesses we had.
The Court: Those are the witnesses you had. I'm not going to allow them-
[RaceTrac's counsel]: Your Honor, you didn't-
The Court: Just because they got a new attorney.
[RaceTrac's counsel]: Oh, no. Those are our witnesses-
The Court: No. I know that.
[RaceTrac's counsel]: -that you stopped the trial.
The Court: Right. But if they hadn't listed people-
[RaceTrac's counsel]: Okay.
The Court: -experts in opposition-[RaceTrac's counsel]: Okay.
The Court: -just because you get a new attorney doesn't mean you-I mean, we started this trial for a particular-we stopped it for a particular purpose.
....
[Gaspar's counsel]: I just wanted to ask, as a person who wasn't there, was it stopped last time because it just didn't-
[RaceTrac's counsel]: It stopped-
[Gaspar's counsel]: -ran out of time? You all would have gone on and tried the damages?
The Court: No. It-well, we would have tried. There were essential people who were left out of the trial. We were-[the original trustee] wasn't there. [The original trustee] wasn't listed as a person. [The original trustee] did everything in the case and-
[RaceTrac's counsel]: He was a party to the counterclaim.
[Gaspar's counsel]: Yeah. I knew that.
....
[Gaspar's counsel]: [Y]ou were ready to try-
[RaceTrac's counsel]: We were ready to try it. We had everybody.
The Court: Yeah, we were ready to-yeah, we were not just ready, we were going and-
[RaceTrac's counsel]: Right.
[Gaspar's counsel]: Okay. And I only asked, of course, because I am not setting it and I do want to be careful to make sure Gaspar Passage's would have every opportunity to be able to try the damages case with its witnesses and experts that-
[RaceTrac's counsel]: It had no experts. It didn't name any.
[Gaspar's counsel]: And so that's what I was asking. You-all were getting ready to try?
The Court: Yeah. And that's the thing.
[RaceTrac's counsel]: Okay.
The Court: I mean, these aren't new experts. These are people that were listed before.
[RaceTrac's counsel]: Okay.
The Court: Gaspar's Passage has been in this case from the get-go, so Gaspar's Passage can't start adding experts that they didn't list originally ....

There was no further discussion on this issue.

In June 2016, three months prior to the continued trial date, Gaspar filed a notice of case management conference, wherein it noticed its intent to have the trial court consider Gaspar's request to designate one expert witness on the issue of damages, to take the deposition of RaceTrac's expert witness, and to obtain a copy of any indemnity agreement in RaceTrac's possession. In response, RaceTrac filed a motion to strike, relying on the trial court's March 3, 2016, ruling related to additional discovery as the reason for striking Gaspar's requests.

The court conducted a hearing on RaceTrac's motion to strike in July 2016. RaceTrac's counsel recited the case history to the trial court, asserting that when the trial court initially agreed to continue the trial, the trial judge had been "emphatic ... that we were done [with discovery]" and that just because Gaspar had retained a new attorney did not mean it was entitled to a repeat of the pretrial proceedings. Gaspar's counsel, who was not the appellate counsel that argued on behalf of Gaspar at the March 3, 2016, hearing, argued in relevant part that Gaspar wanted to include two new experts whose testimony would "go directly to the issue of damages." According to Gaspar, one of the witnesses would testify on the issue of whether RaceTrac should have proceeded with the purchase of the property which, if answered in the negative, would "negat[e] their claim for damages." The other witness was relevant to Gaspar's newly added affirmative defenses of setoff or lost rental value, which were based on Gaspar's claim that it was entitled to the rental value of the property for the time period that RaceTrac was wrongfully in possession of the property. Gaspar's counsel asserted that both witnesses were necessary to refute RaceTrac's contention that it was entitled to additional damages above and beyond the $1,841,387.83 equitable lien already imposed by the trial court. Gaspar's counsel asserted that the witnesses were "willing to produce reports and be deposed on an expedited basis" so that the trial could proceed as scheduled. Gaspar's counsel also indicated that Gaspar wanted RaceTrac to produce an indemnity agreement which Gaspar contended was required to be produced pursuant to Florida Rule of Civil Procedure 1.280(b)(2).

Gaspar's counsel argued that if Gaspar was not permitted to conduct additional discovery, it would be denied procedural due process since the discovery issue had not been previously noticed prior to the March 3, 2016, hearing. Gaspar's counsel also argued that once RaceTrac amended its counterclaim and Gaspar amended its answer and affirmative defenses, new pleadings and parties were added. Thus, Gaspar's counsel argued that an immediate discovery cutoff prevented Gaspar from its right to be heard. Gaspar also maintained that it would be error to prevent the addition of the new witnesses where over sixty days remained before trial and where Gaspar was willing to agree to an expedited discovery schedule.

RaceTrac, in rebuttal, argued that in amending the counterclaim, it did not change the allegations of its counterclaim relating to Gaspar and that, instead, it merely added two indispensable parties (the original trustee and a trust beneficiary). RaceTrac maintained that Gaspar had had sufficient time to conduct discovery but declined to do so and that, therefore, there was no due process violation. RaceTrac conceded it had no objection to providing a copy of the indemnification agreement. But RaceTrac maintained its objection to "all these additional witnesses and experts."

The trial court reiterated that this case involved a continued trial. The trial court explained that when it initially said it expected further discovery, "I meant about [the original trustee] and ... the other trust, which was pertinent" during the first part of the trial. The trial court continued:

Apparently, that is no longer pertinent, and so I expected that there would be no need for further discovery.
Now, I do want [Gaspar's counsel] to have everything she needs to go forward because what we're looking at is damages. So anything, any paperwork that she may need ... just get it to her, but I ... really did not expect that we would be adding witnesses two years into the start of a trial.
Gaspar's Passage, I understand that you're new in the case, but they're sort of stuck with what happened with the attorney that they hired back at the beginning.

The hearing then concluded with RaceTrac agreeing to provide the indemnification agreement. The trial court later entered an order granting RaceTrac's motion to strike, denying Gaspar's request to depose RaceTrac's witness and denying Gaspar's request to identify two additional witnesses on the issue of damages.

Subsequently, Gaspar moved to amend its exhibit list, seeking to add documents that it claimed were relevant to its "ability to prosecute its affirmative defenses and remaining claims ... as well as its ability to defend against the claims asserted by" RaceTrac. These exhibits were comprised of notices of proposed property taxes for the years 2015 and 2016, emails, land surveys, a spreadsheet with listings of various sites and corresponding numbers, a document entitled "Broker's Opinion of Value," and an environmental site investigation report. One document was not described, and it was not attached to the motion; instead, a placeholder was attached indicating it was a confidential document.

At a hearing to address the motion, RaceTrac's counsel argued against the amendment by asserting that she had not seen the documents and "[w]e're in the middle of trial." Gaspar's counsel reminded the trial court that it had instructed RaceTrac to provide Gaspar's counsel with all the documents she needed. Gaspar's counsel also argued that several of the documents she wanted to add were public record and that one of the documents, purportedly relating to a settlement discussion, was relevant to RaceTrac's claim for prejudgment interest. The trial court rejected Gaspar's arguments and denied Gaspar's motion to amend the exhibit list, explaining that "you can't include stuff as documents you're going to use at trial that you've never provided."

In September 2016, the trial resumed with the trial court reiterating that RaceTrac was entitled to an equitable lien. The trial court thereafter entered its final judgment on that claim adjusting the amount of the lien upward to include property taxes paid by RaceTrac as well as an award of interest on both the original equitable lien amount and property taxes that had been made a part of the equitable lien. RaceTrac was ultimately awarded $2,401,524.83.

ANALYSIS

We review "[a] trial court's determination with regard to a discovery request" for an abuse of discretion. Overton v. State, 976 So.2d 536, 548 (Fla. 2007). We also review the trial court's decision to exclude late-disclosed witnesses or exhibits for an abuse of discretion. See Tomlinson-McKenzie v. Prince, 718 So.2d 394, 396 (Fla. 4th DCA 1998) ; In re Estate of Lochhead, 443 So.2d 283, 284 (Fla. 4th DCA 1983).

The trial court's refusal to allow additional discovery and to permit Gaspar to call additional expert witnesses was erroneous. The discovery issue was not noticed for hearing in contravention of Florida Rule of Civil Procedure 1.090(d), which requires that before ruling on a matter, a trial court must ensure that the issue was properly noticed to all parties and called up for a hearing before the court. "[W]hen a court considers issues not noticed for hearing, the court denies the litigant due process, and any ensuing order or judgment must be reversed." In re Estate of Assimakopoulos, 228 So.3d 709, 715 (Fla. 2d DCA 2017) (holding that trial court erred by considering party's ore tenus motion for expert witness fees where no motion on that issue had previously been made nor served on the opposing party and where the issue was not noticed for hearing); see also Ingaglio v. Ennis, 443 So.2d 459, 461 (Fla. 4th DCA 1984) (holding that trial court erred by considering ore tenus motion to strike defendant's answer and affirmative defenses as a sanction where no notice was provided to the defendant and he had reason to believe the motion to compel answers to interrogatories had become moot due to his serving answers to the motion).

Here, no written motion to prohibit further discovery was filed with the court or served on Gaspar. Instead, RaceTrac essentially made an ore tenus motion at the March 3, 2016, hearing. But Gaspar had no reason to believe that such a motion would be made where: (1) RaceTrac had amended its complaint to add indispensable parties and to add a request for relief that sought damages for carrying costs and expenses and for improvements RaceTrac made to the property, (2) Gaspar amended its affirmative defenses, and (3) RaceTrac had itself engaged in limited discovery after the amendments. Further, because Gaspar was not provided with notice that the issue would be considered at the hearing, its trial counsel was not even present. Instead, Gaspar was represented by its appellate counsel who was representing Gaspar in RaceTrac's appeal of the partial final judgment that had been previously entered. Gaspar's appellate counsel had only minimal knowledge of the first phase of the trial proceedings, but still attempted to preserve Gaspar's right to present witnesses on the issue of damages. However, Gaspar was woefully unprepared to argue the issue, and the trial court erred by ruling on it where no notice was provided to Gaspar. See In re Estate of Assimakopoulos, 228 So.3d at 715-16 ; Ingaglio, 443 So.2d at 461.

The trial court also erred when it refused to permit Gaspar to add additional witnesses which were crucial to its defense without conducting a required prejudice analysis. In order "[t]o satisfy due process considerations, parties must be given a meaningful opportunity to present evidence and be heard." AT & T Wireless Servs., Inc. v. Castro, 896 So.2d 828, 832 (Fla. 1st DCA 2005). "Indeed, '[t]he right to call witnesses is one of the most important due process rights of a party[,] and accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done.' " Id. (first alteration in original) (quoting State v. Gerry, 855 So.2d 157, 161 (Fla. 5th DCA 2003) ); see also State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So.3d 538, 541 (Fla. 2d DCA 2012) ("A trial court should only exclude witnesses under the most compelling of circumstances ...." (quoting Keller Indus. v. Volk, 657 So.2d 1200, 1203 (Fla. 4th DCA 1995) ) ). This is especially true "when the witness sought to be excluded is a party's only witness or one of the party's most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support [its] theory of the case." Bowling, 81 So.3d at 541 (quoting Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000) ); see also Keller Indus., 657 So.2d at 1202-03.

Trial courts should not automatically foreclose the addition of expert witnesses as a matter of course without considering whether the opposing party will be prejudiced. In Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla. 1981), the Florida Supreme Court explained that while "a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order," it should not do so blindly but should instead "be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party." (emphasis added.)

Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court's exercise of discretion are: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id. at 1314 (footnote omitted); see also Tomlinson-McKenzie, 718 So.2d at 396.

This court has previously relied on Binger to conclude that a trial court erred by limiting the testimony of an expert witness where, sixty-nine days before trial, the appellant filed an amended witness list listing the expert witness for the first time. State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 71 (Fla. 2d DCA 2013). The appellant had provided a summary of the expert's opinion testimony, supplemental answers to expert witness interrogatories, and the expert's full report detailing his findings. Id. The expert was also made available for deposition, and the appellee availed herself of that opportunity. Id. In concluding that the trial court abused its discretion, we explained that the appellant "met its burden to show that it fulfilled the requirements that Binger outlined to effectively mitigate the late-filed disclosure of [the expert] and thereby curing any prejudice [the appellee] might encounter." Id.

Here, Gaspar filed its notice of case management conference on June 20, 2016, which was three months prior to trial. In that notice, Gaspar requested to designate one additional expert witness on the issue of damages and to conduct two depositions of RaceTrac's expert witness. RaceTrac moved to strike the notice. On July 7, 2016, which was still two-and-a-half months before trial, the court heard argument on RaceTrac's motion to strike. At that hearing, Gaspar's counsel explained that the two expert witnesses it wanted to call were relevant to: (1) the issue of RaceTrac's knowledge of Gaspar's interest in the property which could effectively negate RaceTrac's claim for damages above and beyond the equitable lien amount, and (2) Gaspar's affirmative defenses of setoff or the lost rental value. Thus, these witnesses were especially important to Gaspar's defense of the case. Gaspar's counsel asserted that the experts she wanted to add were "willing to produce reports and be deposed on an expedited basis ... so that we can move forward with trial in September." In relation to the request to depose RaceTrac's expert, Gaspar's counsel further argued that she was "not asking for lengthy discovery," but was instead seeking to conduct expedited discovery "to depose the expert that's already been noticed."

Despite the fact that the discovery cutoff issue was never noticed for the March 3, 2016, hearing, and despite the fact that Gaspar's counsel offered to mitigate any prejudice to RaceTrac by conducting expedited discovery, depositions, and the production of expert reports, the trial court ruled that no further discovery or addition of expert witnesses would be allowed. But because the discovery issue was never properly noticed and because the trial court failed to consider whether RaceTrac would be prejudiced by the addition of the witnesses or by an expedited deposition of its own expert witness, the trial court denied Gaspar due process and abused its discretion. See Binger, 401 So.2d at 1313-14 ; In re Estate of Assimakopoulos, 228 So.3d at 716.

The error was compounded by the fact that at the March 3, 2016, hearing, Gaspar's trial counsel was not present. Although RaceTrac attempts to fault Gaspar for failing to have its trial counsel present, we reject the argument that Gaspar should have been prepared to address the discovery issue where the hearing was set to consider motions dealing with issues other than discovery and where no notice was provided to Gaspar that the discovery issue would be addressed.

The trial court also abused its discretion by denying Gaspar's motion to amend its exhibit list in August 2016, several weeks before trial. The intended exhibits became relevant as a result of the amended pleadings, but again, the trial court failed to conduct the required prejudice analysis before denying the motion. See Tomlinson-McKenzie, 718 So.2d at 396.

RaceTrac contends that it raised the issue of prejudice at the September 8, 2016, hearing when the trial court considered Gaspar's request to amend the exhibit list. The transcript reflects that RaceTrac's counsel raised objections of hearsay, privilege, and gamesmanship. RaceTrac's counsel also asserted that because trial was set for September 20, 2016, the late production of the exhibits meant that she would not have time to depose anyone or to check the authenticity of the documents. However, the transcript also reflects that RaceTrac's counsel acknowledged that if Gaspar's counsel had contacted her, she [RaceTrac's counsel] likely would not have objected but would have instead agreed to allow some of the requested additional exhibits. Further, RaceTrac's counsel conceded that "[t]here are a couple of things in there that they actually already have as an exhibit." RaceTrac's counsel concluded her argument by asserting that Gaspar was engaging in gamesmanship and noting to the trial court that "you have not tolerated that in this case in the past and I hope you won't tolerate it anymore."

In response, Gaspar's counsel noted that there had never been a finding of malfeasance by Gaspar. Gaspar's counsel also contended that at least one of the documents could not have been previously produced because it was not yet in existence when RaceTrac requested it. She also asserted that "the vast majority of the documents ... are public record."

Ultimately, the trial court agreed with RaceTrac's hearsay and gamesmanship arguments, concluding that Gaspar was not entitled to add additional exhibits "that you've never provided." But a finding that a party engaged in gamesmanship is not the equivalent of a finding that RaceTrac would be prejudiced by the addition of the exhibits. This is especially true where RaceTrac conceded that: (1) if she [RaceTrac's counsel] had been contacted by Gaspar's counsel, she likely would not have objected to at least some of the additional exhibits, and (2) some of the requested additional exhibits were already part of Gaspar's exhibits. Further, if, as Gaspar's counsel alleged, some of the exhibits were public record, RaceTrac would have difficulty establishing prejudice. See Tomlinson-McKenzie, 718 So.2d at 396 ("[A]n objecting party may not, having closed its eyes to the existence of evidence prior to trial, claim that the admission of that evidence would disrupt the orderly and efficient trial of the case."). Indeed, the transcript reflects that RaceTrac was aware of at least the property appraiser records-which are public record-because its expert had relied on a report that incorporated those records.

Consequently, because Gaspar was denied procedural due process and because the trial court denied Gaspar's requests to add additional expert witnesses and amend its exhibit list without making any findings regarding whether RaceTrac would be prejudiced by the changes, we must reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      The property was held by the Captain Wesley Trust which had been created by an unrecorded trust agreement dated November 29, 2005.

      As its second issue, Gaspar argues that the trial court erred by excluding testimony from Gaspar's witness, J. Robert Brown. At trial, RaceTrac made numerous objections at various points during Brown's testimony. While RaceTrac objected solely on the basis of hearsay at certain points, it also objected on the basis of both hearsay and the best evidence rule at other points, and those objections were sustained without explanation. Our reversal on the first issue requires the trial court to conduct further proceedings. To the extent that the trial court determines on remand that Gaspar should be permitted to add its requested additional exhibits, the admission of those exhibits could require reconsideration of RaceTrac's objections to Brown's testimony.
      Gaspar's third issue is a challenge to the trial court's award of prejudgment interest. While we reject the substance of Gaspar's arguments pertaining to this award, we note that due to our reversal on the first issue, the case could result in a different outcome on remand. Thus the amount of the prejudgment interest award could change depending on the resolution of the issue of Gaspar's request for additional discovery, witnesses, and exhibits.

      In its brief, RaceTrac at first asserts that it "did not conduct discovery," but then within the same sentence acknowledges it engaged in "limited discovery ... focused on the Trust and the parties [which] only requested updated information regarding previously propounded discovery regarding Gaspar's development of the Wesley Chapel Property, if any." To the extent that RaceTrac believes that a document entitled "Second Request for Production" which requests updated information from the opposing party concerning issues involved in the case should not be considered "discovery," we disagree.

      The attorney who attended the March 3, 2016, hearing was not Gaspar's trial attorney but was the attorney who represented Gaspar in RaceTrac's appeal of the partial final judgment that voided the deeds.

      Counsel at first referred to the affirmative defense of setoff but then she subsequently explained that the expert would opine on the issue of lost rental value for the period of time that Gaspar was deprived of the use of the property. We note that the lost rental value issue, as articulated by Gaspar's counsel at the hearing, is different from the written affirmative defense wherein Gaspar argued that rental value should be excluded from any damages that RaceTrac was owed due to improvements it made to the property. However, this discrepancy does not change the result because regardless of whether the expert would opine on whether Gaspar was entitled to lost rental value for the time period that RaceTrac was in possession of the property or whether rental value should be excluded from any damages awarded to RaceTrac, both of those topics relate to the issue of a setoff of Gaspar's damages against RaceTrac's damages.

      Specifically, Gaspar's counsel noted that RaceTrac "has already been awarded the 1.84 million in the equitable lien [but] it claims it is entitled to additional damages beyond the money that it paid for the property." Gaspar's counsel explained that the first witness "will refute the fact that RaceTrac should have proceeded with the purchase, thereby negating their claim for damages. So it directly goes to RaceTrac's claim for damages, which is at issue in this second part of the trial." In relation to the second witness, Gaspar's counsel argued that if RaceTrac was "entitled to the 1.84 million it paid, my client should be or at least this Court should consider whether my client is entitled to rental value damages for that time period that he was deprived use of the property."
      In its brief, RaceTrac argues that Gaspar's belated discovery requests addressed issues already decided or otherwise moot. But the record refutes that argument as it is clear that the trial court retained jurisdiction to adjust the equitable lien upward and that RaceTrac sought additional damages above and beyond the equitable lien amount. In addition to the original equitable lien amount, RaceTrac sought "property taxes incurred since July 21, 2011, plus other carrying costs and expenses and the value of improvements incurred in the Subject Property since July 21, 2011, plus interest, costs, attorneys' fees and any other relief this Court deems just and proper."

      The trial court also granted Gaspar's motion to dismiss RaceTrac's other claim for unjust enrichment, but that claim is not the subject of this appeal.

      Gaspar also sought the production of the indemnity agreement previously referenced. However, as RaceTrac agreed to provide the agreement, that issue is not relevant to this appeal.

      The fact that the expert utilized the report to prepare an appraisal that was not going to be used at trial is not dispositive. The point is that RaceTrac had full knowledge of at least some of the public record information that Gaspar wanted to utilize as an exhibit.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony B. MCCULLOUGH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0911
    District Court of Appeal of Florida, First District.
    March 27, 2018 Rehearing Denied May 23, 2018
    Anthony B. McCullough, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


author: KHOUZAM, Judge.

text:
    IN RE GUARDIANSHIP OF Donald H. JONES, an incapacitated person.
    Michael C. Lyublanovits, Appellant, v. Nancy L. Zebny, as guardian of Donald H. Jones, an incapacitated person, Appellee.
    Case No. 2D17-2237
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Gerald L. Hemness, Jr., of Emma Hemness, P.A., Brandon, for Appellant.
    Brandon D. Bellew and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee.
   KHOUZAM, Judge.

Michael C. Lyublanovits appeals the trial court's decision appointing Nancy Zebny, who was the emergency temporary guardian, as the plenary guardian of Donald Jones. Because we find that the trial court appropriately waived the limitations restricting a previously serving emergency temporary guardian from serving as a permanent guardian and appropriately gave weight to Mr. Jones' wishes that Ms. Zebny remain as plenary guardian pursuant to section 744.312, Florida Statutes (2016), we affirm.

By way of background, the underlying petition to determine incapacity and appointment of an emergency temporary guardian arose because Mr. Lyublanovits was allegedly unduly influencing Mr. Jones, a ninety-seven-year-old man with dementia, to change his long-term estate plan for the benefit of Mr. Lyublanovits. The trial court entered an order appointing Ms. Zebny as the emergency temporary guardian of Mr. Jones.

During Ms. Zebny's five-month tenure as the temporary guardian, she assisted Mr. Jones in a variety of matters. She assisted him in his day-to-day affairs, provided counseling, and helped him cope with his wife's death. As a grief counselor, licensed clinical social worker, and professional guardian with an educational background in mental health, Ms. Zebny developed a positive rapport with Mr. Jones, using her knowledge and training to his benefit. Mr. Jones had no next of kin and expressed his request that Ms. Zebny "stay on" as his permanent guardian.

Mr. Lyublanovits argues that section 744.312 prohibits the appointment of Ms. Zebny because she served as Mr. Jones' emergency temporary guardian and therefore was disqualified from serving as his permanent guardian. He also argues that because she has no "special talent or specific prior experience" as required by section 744.312, it was error for the trial court to have appointed her. We disagree.

"We review a probate court's determination regarding the appointment of a guardian under an abuse of discretion standard." In re Guardianship of Stephens, 965 So.2d 847, 849 (Fla. 2d DCA 2007). And since the appointment of guardian is within the trial court's discretion, the trial court's decision "must be supported by logic and justification" and "founded on substantial competent evidence." Id. (quoting In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) ); see also Morris v. Knight, 1 So.3d 1236, 1238 (Fla. 4th DCA 2009) (same).

Generally, section 744.312 provides that a trial court may appoint "any person who is fit and proper and qualified to act as guardian." § 744.312(2). It also provides that the court shall consider, among other things, "the wishes expressed by an incapacitated person as to who shall be appointed guardian." § 744.312(3)(a). This statute, however, also places some "limitations" on the trial court's ability to appoint a guardian. See § 744.312(4)(b). Specifically, section 744.312(4)(b) provides as follows:

An emergency temporary guardian who is a professional guardian may not be appointed as the permanent guardian of a ward unless one of the next of kin of the alleged incapacitated person or the ward requests that the professional guardian be appointed as permanent guardian. The court may waive the limitations of this paragraph if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special talent or specific prior experience. The court must make specific findings of fact that justify waiving the limitations of this paragraph.

In other words, this section restricts the trial court's ability to appoint "[a]n emergency temporary guardian who is a professional guardian ... as the permanent guardian" to situations where either the alleged incapacitated person's next of kin or the ward "requests that the professional guardian be appointed as permanent guardian." § 744.312(4)(b). However, the statute also makes clear that a trial court "may waive" those limitations and appoint the professional guardian as the permanent guardian "if the special requirements of the guardianship demand that the court appoint a guardian" with "special talent or specific prior experience." Id. The ordinary meaning of the term "demand" is to ask or call for something in an authoritative manner. See, e.g., Demand, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/demand (last visited Mar. 8, 2018) (defining "demand" as "to ask or call for with authority, claim as due or just"). And in the event that the guardianship justly calls for the appointment of a professional guardian with special talent or specific prior experience, the trial court "must make specific findings of fact that justify waiving the limitations of this paragraph." § 744.312(4)(b).

In this case, the trial court, after conducting an evidentiary hearing, provided a detailed order setting forth its specific findings of fact in support of waiving the limitations of section 744.312(4)(b). Those findings of facts were supported by competent substantial evidence in the record. Notably, the record reflects that Ms. Zebny's special skill set and qualifications include being a case manager for twenty-five years in the areas of grief, bereavement, and crisis intervention. She holds a master's degree and is also a licensed clinical social worker, a hospice end-of-life counselor, and a practicing therapist and counselor who can both diagnose mental illness and develop plans to assist Mr. Jones with his memory loss and decision making. The record reflects that this expertise makes Ms. Zebny specially equipped to counsel Mr. Jones on end-of-life situations, as well as deal with Mr. Jones' daily struggle with his wife's death. In fact, having these skills has allowed Ms. Zebny to not only assist Mr. Jones in his grief but also to identify any "dysfunctional" grief coping mechanisms Mr. Jones may experience. As a result, we cannot conclude based on the record before us that the trial court abused its discretion in finding that Mr. Jones' guardianship demanded the appointment of Ms. Zebny.

Furthermore, the trial court found, as contemplated by section 744.312(3)(a), that Mr. Jones expressed his wish that Ms. Zebny remain as his guardian. Indeed, at the evidentiary hearing, testimony was presented that Mr. Jones mentioned about six or seven times that he liked Ms. Zebny as his guardian. Testimony was also presented that to the extent possible, Mr. Jones recognizes Ms. Zebny as an authority figure in his life and accepts and relies upon her judgment. The trial court properly gave weight to his wishes by appointing her as his permanent guardian.

Accordingly, having carefully reviewed the record, we conclude that the trial court did not abuse its discretion in appointing Ms. Zebny to be the plenary guardian of Mr. Jones as its decision was supported by competent substantial evidence.

Affirmed.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.

      We note that Mr. Lyublanovits testified that he was a friend of Mr. Jones and had known him for over thirty years.

      We reject Mr. Lyublanovits' argument that the trial court erred in disregarding the term "demand" in its application of section 744.312(4)(b). The record shows that while the trial court recognized at the evidentiary hearing that it was "arguabl[e]" as to whether Mr. Jones' situation "demand[ed]" Ms. Zebny's appointment, the trial court ultimately found in its written order that it "was appropriate to waive the limitations of [section] 744.312(4)(b)." We further note that at the evidentiary hearing, the trial court stated that "my interpretation of the word 'demand' contemplates my findings ...." These findings were adequately set forth at the evidentiary hearing and in the final order.


author: LUCAS, Judge.

text:
    Asad KHAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5288
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Spencer Cordell of Law Office of Spencer Cordell, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Cornelius C. Demps, Assistant Attorney General; and Jason M. Miller, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge.

Asad Khan appeals his judgment and sentence for robbery with a deadly weapon. § 812.13, Fla. Stat. (2015). He raises two issues on appeal. Finding merit in his arguments, we reverse the circuit court's judgment and sentence and remand his case for a new trial.

Shortly after midnight, on March 2, 2015, a man with some kind of a black cloth around his face entered a 7-Eleven convenience store in Fort Myers, held a knife to the clerk's neck, and robbed the store of all the cash in the registers. The clerk, although unhurt, was obviously distraught. When first interviewed by Lee County Sheriff's Office detectives, she could only identify the robber as a man with "medium brown" skin who stood about six feet, two inches in height and spoke with an "Indian" or "Middle Eastern" accent.

Utilizing surveillance video footage obtained from both the 7-Eleven and a Speedway convenience store across the street, and with the assistance of a knowledgeable employee at a local Car Max auto dealership, detectives were able to identify the make and model of the vehicle that the robber had driven to and from the scene. Its license tag was indecipherable (because of where the vehicle was parked), but it was determined that the vehicle was a Volkswagen Routan van. Lee County Sheriff's Detective Sean Mukaddam then reviewed the State Driver and Vehicle Identification Database (DAVID) to cross-reference Lee County registrations for Routans that might reflect a Middle Eastern family surname. The only match, he concluded, was a Routan registered to one Attia Mobeen-who, as it turned out, was Mr. Khan's wife.

While detectives developed their investigation, a local television station began airing a brief clip of the robbery taken from the 7-Eleven surveillance video. Two former coworkers of Mr. Khan's, Messrs. Harris and Soperak, believed they recognized Mr. Khan as the robber depicted in the video based upon what could be seen of the man in the footage-and on what they described as the man's peculiar gait. They contacted the television station's "Crime Stoppers" phone number and were put in touch with the sheriff's office's investigators. In addition to identifying Mr. Khan in the video, both Mr. Harris and Mr. Soperak corroborated Mr. Khan's general, physical description, his manner of speech (which was described as an "Indian" or "Middle Eastern" accent), that Mr. Khan sometimes drove a Volkswagen Routan van, and that he had stopped at this particular 7-Eleven in the past.

Armed with this information, detectives obtained search warrants for Mr. Khan's home, his DNA, and Ms. Mobeen's Routan. They found nothing of interest in the house and were unable to match Mr. Khan's DNA or fingerprints to anything meaningful in the case. They seized the van from a repair shop. In it, they discovered a black hijab headscarf as well as a bag of cash. Mr. Khan was then taken into custody and interviewed by Detective Mukaddam. The interview was video recorded, but the recording abruptly ceased, apparently the moment before Mr. Khan was given a Miranda warning. From what we can glean of this brief interchange between Mr. Khan and Detective Mukaddam, it appears that Mr. Khan was in custody for the entire duration of the interview and had exercised his right to remain silent within a few minutes of its commencement.

The focal point of Mr. Khan's jury trial revolved around the identity of the robber. The State maintained it was Mr. Khan; Mr. Khan argued it was someone else. In presenting its case, the State introduced the evidence described above, including a detailed description by Detective Mukaddam of the DAVID research that led his investigation to Mr. Khan's wife's van. When the defense objected on hearsay grounds to Detective Mukaddam relaying his investigative inquiries and what he had read in DAVID to the jury, the State responded, alternatively, that the information was not being offered for its truth, but rather to explain the progression of the robbery's investigation, and that the information in DAVID was simply "data" (which, presumably, made it admissible, according to the State). The circuit court expressed misgivings, but allowed the testimony. The State also played a portion of the videotaped interview between Mr. Khan and Detective Mukaddam for the jury, representing to the court that it was for the limited purpose of identifying Mr. Khan's voice and accent.

Mr. Khan elected to testify in his defense. During direct examination, he denied having even entered that 7-Eleven on the night of the robbery. He explained that he had driven his wife's van to the Speedway convenience store across the street from the 7-Eleven to buy cigarettes that night. Before he could reach that store, though, he recalled accidentally driving his wife's van into a ditch (because, he claimed, he had been drinking at an earlier birthday party). According to Mr. Khan, some passersby stopped to help him pull his van out of this ditch, whereupon Mr. Khan continued on to the Speedway to purchase his cigarettes before returning home. While at the Speedway, Mr. Khan recalled that that store's clerk and some patrons expressed concern to Mr. Khan about his now-smoking automobile. When the State cross-examined Mr. Khan on this testimony, the following exchange ensued:

Q. So these are people who saw you at the Speedway very shortly before midnight on the night of the robbery with the wrecked car?
A. They seen me on the night of my daughter's birthday at the Speedway gas station with a car that was smoking, and had front end damage.
Q. Why didn't you tell Detective Mukaddam to go talk to them, why not?
A. He never came and asked me.

Defense counsel immediately moved for a mistrial on the ground that the State's last question constituted an impermissible comment on Mr. Khan's right to remain silent. In response, the State pointed out that Mr. Khan had spoken, albeit briefly, to Detective Mukaddam during the prior investigatory interview. The assistant state attorney appeared to acknowledge "it was an inadvertent question that was asked," but since there had been a prior conversation between Detective Mukaddam and Mr. Khan, the question's reference would not necessarily have been to Mr. Khan's silence after he had been given his Miranda warning. The circuit court recognized that it was a "close" question, but denied the defense's motion. The defense did not request, nor did the court give, any curative instruction to the jury.

At the conclusion of the trial, the jury returned a guilty verdict. The circuit court adjudicated Mr. Khan guilty and sentenced him to five years in prison, followed by five years of probation. This is Mr. Khan's appeal of that judgment and sentence.

Mr. Khan raises two issues for our consideration. First, he contends that the circuit court reversibly erred when it allowed the State to introduce, over his hearsay objection, the details of Detective Mukaddam's investigation, including his statements about what the DAVID database revealed. "A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion." Hayward v. State, 24 So.3d 17, 29 (Fla. 2009). That discretion, however, must be exercised within the constraints of the rules of evidence and principles of stare decises. Id. Second, Mr. Khan argues that the court should have granted his motion for mistrial following the State's improper reference to Mr. Khan's Fifth Amendment right to remain silent. With respect to Mr. Khan's second issue, the Florida Supreme Court has explained that "any comment which is 'fairly susceptible' of being interpreted as a comment on silence will be treated as such." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). An appellate court must then apply a harmless error analysis to the "fairly susceptible comment" at issue. Id. at 1136. Thus, regardless of whether there was "overwhelming evidence of guilt," an impermissible comment on a defendant's right to remain silent can only be affirmed if the State can "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict." Ventura v. State, 29 So.3d 1086, 1089 (Fla. 2010) (emphasis omitted) (quoting DiGuilio, 491 So.2d at 1136, 1138-39 ).

We begin with the evidentiary issue. Allowing Detective Mukaddam to relay at length his entire investigative process and everything he had read in DAVID that eventually led him to Mr. Khan was erroneous in this case. Plainly, this line of testimony, including the recital to the jury that the driver registration information in DAVID reflected only one "Middle Eastern" sounding owner of a Volkswagen Routan in Lee County-who was Mr. Khan's wife-was hearsay offered to buttress the State's claim that Mr. Khan was the robber who had driven a vehicle of the same make and model near the 7-Eleven. See § 90.801(1)(c), Fla. Stat. (2015) ; Keen v. State, 775 So.2d 263, 274 (Fla. 2000) (holding that detective's testimony about the "sequence of events" in his investigation that led to the defendant's arrest was impermissible hearsay, and noting that "[w]hen the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label"). And it was a particularly pernicious kind of hearsay in the context of a criminal prosecution. As the Fourth District observed:

In spite of substantial authority condemning this attempt to adduce prejudicial hearsay, the [S]tate often persists in offering this kind of hearsay to explain the "state of mind" of the officer, or to explain a logical sequence of events during the investigation leading up to an arrest. This type of testimony occurs with the persistence of venial sin. The [S]tate's insistence on attempting to adduce this particular brand of hearsay requires trial judges to be constantly on their guard against it.... [A] "police officer's state of mind is generally not a material issue in a criminal prosecution."

Saintilus v. State, 869 So.2d 1280, 1282 (Fla. 4th DCA 2004) (quoting State v. Baird, 572 So.2d 904, 907 (Fla. 1990) ). Because the State failed to establish an applicable hearsay exception, the State should not have been allowed to elicit this hearsay through the detective's testimony.

More troubling is the question the State posed to Mr. Khan during his cross-examination. The State challenged Mr. Khan as to why he never relayed to Detective Mukaddam-the detective who arrested Mr. Khan-any details about the people Mr. Khan claimed would have seen him at the Speedway on the night of the robbery. The question that was posed to Mr. Khan by the State was more than "fairly susceptible" to being construed as a comment on Mr. Khan's prior silence while in custody; the whole point of the question was to highlight the fact that Mr. Khan had remained silent following his arrest and brief interview with Detective Mukaddam.

We find the supreme court's decision in State v. Hoggins, 718 So.2d 761 (Fla. 1998), controlling here. In Hoggins, a man armed with a gun entered a convenience store, threatened to kill the clerks who were working, and stole a cash register drawer and cigar box filled with lottery tickets. Id. at 762. Later that same evening, police officers found and pursued a suspect they observed carrying a cash register drawer and cigar box on his bicycle. Id. Following a trail of lottery tickets and food stamps, the officers eventually found the defendant hiding in an apartment where they arrested him. Id. at 762-63. When his case went to trial, Mr. Hoggins testified that he was neither the robber nor the man police had chased on the bicycle; instead, he testified he had been sitting on the apartment porch when he saw "someone hide something" in a nearby playground. Id. at 763. He went to investigate and found the register drawer and cigar box, which he took back to the apartment-which, he claimed, was why he had the store's stolen property. Id.

At trial, Mr. Hoggins testified in his defense and relayed the foregoing account about how he happened across a cash register drawer and cigar box in a playground. Id. The State on re-cross examination put it to Mr. Hoggins: "[W]hen you were in the upstairs bedroom and the police came up there, you never gave them the version that you have just given us today?" Id. Mr. Hoggins admitted he had not and was found guilty. Id. Approving the Fourth District's reversal of his judgment and conviction and answering a certified question from that court, the Hoggins court distinguished between a defendant's prearrest and postarrest silence with respect to permissible cross-examination impeachment. Id. at 765-69. Using postarrest silence to impeach a testifying defendant, the court held, violated article I, section 9 of the Florida Constitution, "regardless of whether Miranda warnings [had] been given." Id. at 770.

Here, the only pertinent interaction Mr. Khan ever had with Detective Mukaddam was when Mr. Khan was in custody and under arrest. The question-"why didn't you tell Detective Mukaddam to go talk to" the clerk and patrons who, Mr. Khan claimed, saw his smoking car on the night of the robbery-referenced the very postarrest, pre- Miranda silence Hoggins held was constitutionally impermissible. And, indeed, it appears that that reference may have been readily understood as a query into Mr. Khan's silence, since at the conclusion of Mr. Khan's testimony, one juror sought to pose the follow-up question: "Did the defense get written testimony from the clerk at Speedway whom the defendant claimed witnessed the damage to the van and the smoke coming from it? If not, why not?"

[C]omments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ].

DiGuilio, 491 So.2d at 1136-37. From our review of this record, we have no hesitation concluding that the State's question to Mr. Khan about his silence while in custody was both improper and harmful. Accordingly, we reverse his final judgment and sentence and remand his case for a new trial.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      Both Mr. Khan and Ms. Mobeen are of Pakistani descent.

      A copy of the surveillance video was not included in our record, but at trial, Mr. Khan's walk was described by these witnesses as a unique kind of "swagger" with his "feet landing outwards when he walks."

      Ms. Mobeen would later testify at her husband's trial that the cash was from tips she had received at her job and the hijab belonged to the couple's daughter.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      In its answer brief, the State also urges us to consider the applicability of sections 90.803(6) or (8), Florida Statutes (2015), granting hearsay exceptions for business records or public records respectively, to the detective's testimony about his investigation with DAVID. We are not persuaded that the DAVID records in this case could qualify as a hearsay exception under section 90.803(6) because nothing in the record before this court would permit us to conclude that the business records hearsay exception would have been applicable. See Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010) ("Under the tipsy coachman doctrine, where the trial court 'reaches the right result, but for the wrong reasons,' an appellate court can affirm the decision only if 'there is any theory or principle of law in the record which would support the ruling.' " (first emphasis added) (quoting Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) ) ). So, too, we have significant reservations that the record before us would render this testimony admissible under the public records hearsay exception. But even assuming that the DAVID records could have qualified as a public records exception under section 90.803(8), Detective Mukaddam's testimony about the records' content would still remain inadmissible hearsay for which there was no exception. See, e.g., Holborough v. State, 103 So.3d 221, 222-23 (Fla. 4th DCA 2012) (concluding that testimony from the investigating officer that he identified the victim based on a Florida ID was inadmissible hearsay because "[e]ven if the ID qualified as a public record for the purpose of the section 90.803(8) exception to the hearsay rule for public records, the officer's in-court testimony about what the ID said was hearsay falling under no exception"); Tillman v. State, 964 So.2d 785, 787-789 (Fla. 4th DCA 2007) (concluding officers' testimony regarding the contents of BOLOs and that appellant and his vehicle matched the description of the person suspected for the armed kidnapping described therein was prejudicial and inadmissible hearsay).

      In fashioning this distinction, the court explained that Florida courts do not recognize a defendant's election to testify in his or her defense as a waiver of a prior exercise of postarrest, pre-Miranda silence. Hoggins, 718 So.2d at 769. Moreover, the court was troubled by the prospect of "treating differently defendants who are aware of their Miranda rights and those who are not." Id. at 770.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Jason James WALKER, DOC #H18351, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5577
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Jason James Walker pleaded no contest to possessing methamphetamine, possessing drug paraphernalia, and maintaining a structure for keeping controlled substances, but he reserved his right to appeal the trial court's denial of his dispositive motion to suppress evidence. Because we agree that Walker's friend did not have the apparent authority to consent to detectives' entry into Walker's residence, we reverse and remand for discharge.

Factual Background

The Polk County Sheriff's Office received information from the Department of Children and Families (DCF) that illegal drugs were being used and sold from Walker's residence while children were present. Consequently, on December 5, 2015, two detectives went to Walker's residence to speak with him and to ask for consent to search the residence.

The detectives knocked on the front door, and Stephen Rodda opened it. One of the detectives asked Rodda his name and told him that they were at the residence for a DCF referral and were looking for Walker. Rodda was calm and cooperative; he responded that Walker was "in the bedroom" and told the detectives, "I'll go get him, come in." Rodda then opened the door wider, and both detectives stepped inside into the living room area. At some point, Rodda said that he had been asleep on the sofa when the detectives knocked. At no point did either detective ask Rodda if he lived at the residence or if he had the authority to let them in.

The detectives observed a glass pipe in plain view on the sofa. Rodda went to get Walker from one of the bedrooms, and they both returned to the living room. Thereafter, Rodda claimed the pipe as his, and Walker made incriminating statements and turned over methamphetamine and scales to the detectives.

Walker moved to suppress the evidence, arguing, among other things, that Rodda had lacked the authority to invite the detectives into his residence. The trial court concluded that the detectives had reasonably believed that Rodda had had the authority to do so "when Rodda was sleeping at the house when the known resident was present, and offered the consent to enter to the officers without being prompted."

Analysis

"[I]n reviewing a trial court's ruling on a motion to suppress, this court must give deference to the trial court's factual findings if those findings are supported by competent, substantial evidence, but this court must review the trial court's ruling of law de novo." State v. Roman, 103 So.3d 922, 924 (Fla. 2d DCA 2012).

The Fourth Amendment prohibits "the warrantless entry of a person's home, whether to make an arrest or to search for specific objects." Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). A law enforcement officer may enter a home without a warrant, however, if the officer obtains voluntary consent to the entry, id., and the officer may obtain consent "from a third party who possesse[s] common authority over or other sufficient relationship to the premises or effects sought to be inspected," United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). A third party's authority to consent rests on the

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171 n.7, 94 S.Ct. 988. In other words, "[t]hird-party consent ... is valid where it arises out of the mutual use of property by persons having joint access, or common authority over, or other sufficient relationship to the premises or effects to be inspected." Ferryman v. State, 919 So.2d 710, 712 (Fla. 5th DCA 2006).

Even if it turns out that the third party lacked the actual authority to consent to the entry, the entry can nonetheless be upheld under the doctrine of apparent authority if the officer reasonably believed that the third party had the authority to consent. Hernandez v. State, 98 So.3d 702, 705 (Fla. 5th DCA 2012) ("When the State seeks to justify a warrantless search by proof of voluntary consent, it may show that permission to search was obtained from a third person who possessed, or reasonably appeared to possess, common authority over or other sufficient relationship to the premises." (first citing Rodriguez, 497 U.S. 177, 110 S.Ct. 2793 ; then citing Matlock, 415 U.S. 164, 94 S.Ct. 988 ) ). The reasonableness of the officer's belief is evaluated under an objective standard based on the facts available at the time that consent was given, Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793, and the State bears the burden of proving that the officer reasonably believed that the third party who consented to the entry had the authority to do so, Williams v. State, 788 So.2d 334, 336 (Fla. 5th DCA 2001).

Walker contends that the State failed to prove that the detectives reasonably believed that Rodda had the authority to consent to their entry into Walker's residence. We agree. We begin with the premise that "[t]he mere fact that an unknown person opens the door when a police officer knocks cannot, standing alone, support a reasonable belief that the person possesses authority to consent to the officer's entry." Cooper v. State, 706 So.2d 369, 371-72 (Fla. 2d DCA 1998) ; see also Brunson v. State, 149 So.3d 139, 141 (Fla. 4th DCA 2014) (agreeing with the trial court's conclusion that officers' initial search of a hotel room was illegal "because a reasonable person would not conclude that the individual who answered the door had the authority to consent without confirming that he was the person renting the hotel room"); Williams, 788 So.2d at 337 (holding that officers lacked a reasonable basis to believe that an unidentified woman with no known connection to a motel room other than her act of opening the door had authority to consent to their entry). Here, we have more than that "mere fact"-Rodda had identified himself to the detectives, and we assume for the sake of this analysis that before inviting them in, he had told them that he had been asleep on the sofa and that their knocking had awoken him.

Rodda's identification, however, confirmed only that he was not Walker; it shed no light on his connection to the residence. And although intriguing, the fact that he was asleep on the sofa, presumably fully dressed, in the middle of the day was, by itself, ambiguous. While Rodda could have been asleep on the sofa because he lived in the residence, he could equally have been so for any number of other reasons, and neither detective testified to observing from the doorway any item-a clearly addressed package on the stoop, for example, or personal photographs hanging in the entryway-indicating Rodda's status as a "co-inhabitant" or as someone else who "generally [had] joint access or control for most purposes." Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988. Consequently, further inquiry was required. See King v. State, 79 So.3d 236, 239 (Fla. 1st DCA 2012) ("If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party's representations."); United States v. Cos, 498 F.3d 1115, 1128 (10th Cir. 2007) ("[T]he government cannot meet its burden of demonstrating a third party's apparent authority 'if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.' " (quoting United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) ) ); 4 Wayne R. LaFave, Search & Seizure § 8.3(g), at 239 (5th ed. 2012) ("[U]nder a sound application of the apparent authority rule the police must be required to make reasonable inquiries when they find themselves in ambiguous circumstances.").

But neither detective even asked Rodda if he lived there. Nothing precluded them from doing so: neither testified as to any exigency, and both testified that Rodda was calm and cooperative. And yet they failed to inquire further into his connection to Walker and to the residence. Instead, based on limited and inconclusive information, they simply accepted his invitation to enter Walker's residence. This is not the type of situation in which apparent authority justified the entry and precludes suppression. See, e.g., State v. Terzian, 162 A.3d 1230, 1240 (R.I. 2017) (holding that officers improperly relied on their assumption that the defendant's girlfriend had the authority to consent to their entry of his residence; although she was inside the residence along with her daughter and a young child and identified herself to the officers as the defendant's fiancée, the officers "made no inquiry to satisfy themselves that she actually lived there"); Cos, 498 F.3d at 1118, 1130-31 (holding that officers' reliance on defendant's friend's consent to their entry of the defendant's residence was unreasonable although she answered the door, confirmed that she and her children were "the only ones at home," and told officers that the defendant had not been there since earlier that day; the officers "did not know who she was or what relationship she had to [the defendant] or to the residence"); cf.

Kohn v. State, 69 So.3d 388, 390 (Fla. 1st DCA 2011) (holding that the trial court did not err in determining that officers had reasonably believed that the victim had had the authority to consent to their entry of the defendant's apartment when the victim had told the officers that she was living with the defendant in his apartment, that she had the key to the apartment, and that she had been added to the lease but that she had fled the apartment and had left all of her belongings there after the defendant raped her).

The trial court, therefore, erred in denying Walker's motion to suppress evidence. Accordingly, we reverse and, because the motion was dispositive, remand with instructions that Walker be discharged.

Reversed; remanded with instructions.

LaROSE, C.J., and SILBERMAN, J., Concur.

      We take the facts from the trial court's written findings and from the testimony of the detectives, whom the trial court expressly found credible.

      It appears that the answer to both of those questions would have been no. The State never has disputed that Rodda was only a guest at the residence; nor has it argued or presented evidence to support the conclusion that he nonetheless had actual authority to consent to the detectives' entry.

      The detectives' testimony was equivocal as to the timing of Rodda's statement that he had been asleep, and the trial court made no specific finding.


text:
    Ramon Wade RENFRO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3451
    District Court of Appeal of Florida, First District.
    April 10, 2018
    Ramon Wade Renfro, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the motion, but write to address the claim raised in ground one.

In 2014, the appellant was convicted of lewd or lascivious battery, lewd or lascivious molestation, and unlawful sexual activity with certain minors, stemming from sexual encounters he had with three victims during a camping trip. In ground one of his motion, the appellant alleges that counsel was ineffective for failing to call a DNA expert to testify. At trial, counsel attempted to introduce an FDLE report indicating that amylase found on underwear allegedly belonging to one of the victims, C.D., excluded the appellant as a contributor. That request was denied. The appellant alleges that counsel should have called an expert to testify to the report's conclusion, that he was excluded as the contributor to amylase found on C.D.'s underwear. He alleges that this would prove he did not commit any of the crimes.

The appellant's claim was properly denied. Even if an expert had been called to testify that the amylase found on C.D.'s underwear did not belong to the appellant, there is not a reasonable probability that the outcome of the trial would have been different. Here, the DNA evidence only related to the clothing of one of the victims. Thus, it would have no bearing on two of his three convictions.

As to the count involving C.D., the State never argued that DNA evidence proved its case. The record reflects that the state presented evidence from witnesses that the appellant penetrated the victim with his finger, had intercourse with the victim, and that the victim performed oral sex on him. There was also testimony that C.D. and another victim performed oral sex on each other, and that one or more unidentified people had sexual contact with C.D. Neither the presence of an unidentified party's DNA, nor the absence of the appellant's saliva on C.D.'s underwear, would prove that the appellant did not engage in the alleged sex acts. As such, the appellant cannot show that had counsel called an expert to testify that someone else's saliva was found on C.D.'s underwear, there is a reasonable likelihood that the outcome of the trial would have been different. See Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that to show ineffective assistance of counsel, a defendant must demonstrate that there is a reasonable probability that the outcome of the trial would have been different had counsel not acted deficiently).

AFFIRMED .

B.L. Thomas, C.J., and Jay and M.K. Thomas, JJ., concur.

      It appears from the trial court's attachments that no semen was found on the underwear. The DNA evidence the appellant refers to in his motion appears to be amylase, which is an enzyme found in saliva and other bodily fluids.


author: Ray, J.

text:
    Ahmad Gary SHEAFFERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-554
    District Court of Appeal of Florida, First District.
    April 17, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

Appellant, Ahmad Gary Sheaffers, challenges consecutive twenty-year sentences for two counts of aggravated assault with the discharge of a firearm, which were imposed at resentencing after this Court reversed his original sentences in light of Williams v. State , 186 So.3d 989, 993 (Fla. 2016) (holding that when "multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory"). See Sheaffers v. State , 199 So.3d 569 (Fla. 1st DCA 2016). Appellant raises two issues on appeal, neither of which merits reversal. We write only to address his argument that the 2016 version of section 775.087(2)(a), Florida Statutes, also referred to as the "10-20-Life" statute, applied at the time he was resentenced for crimes he committed before the 2016 amendment.

Appellant argues that the postconviction court should have granted his motion to correct sentencing error contending that the 2016 version of the 10-20-Life statute applied to his resentencing because his sentences were not final before the law's effective date. At the time of his offenses in 2014, aggravated assault was included as an enumerated felony requiring a mandatory minimum sentence of twenty years when a firearm was discharged during the commission of the felony. § 775.087(2)(a), Fla. Stat. (2013). Effective July 1, 2016, aggravated assault was removed from the list of enumerated felonies for which mandatory minimum sentences are required. See Ch. 2016-7, § 1, at 1, Laws of Fla. (2016). Appellant submits that because aggravated assault was no longer an enumerated felony at the time of his resentencing hearing in 2017, the mandatory minimum sentence should not have applied to him.

Whether section 775.087, Florida Statutes (2016), applies to Appellant's sentences is a question of law that we review de novo. See Smiley v. State , 966 So.2d 330, 333 (Fla. 2007). The Florida Constitution prohibits the amendment or repeal of criminal statutes from affecting the "prosecution or punishment for any crime previously committed." Art. X, § 9, Fla. Const. We have previously explained,

The effect of this constitutional provision is to give all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment, by subsequent legislation, of a pre-existing criminal statute does not become effective, either as a repeal or as an amendment of such pre-existing statute, in so far as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law.

Davis v. State , 892 So.2d 518, 519 (Fla. 1st DCA 2004) (quoting Raines v. State , 42 Fla. 141, 28 So. 57, 58 (1900) ). See also State v. Battle , 661 So.2d 38, 39 (Fla. 2d DCA 1995) ("The controlling statute for punishment is the statute in effect at the time of the commission of the crime.").

Contrary to Appellant's argument, it is the date of the commission of the crime, not the date the sentence becomes final, that dictates which punishment statute applies. As the postconviction court correctly ruled, the sentences imposed in 2017 were controlled by the statute in effect at the time of Appellant's offenses. Accordingly, the sentences are AFFIRMED.

B.L. Thomas, C.J., and Wolf, J., concur.


text:
    Jabare EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-1903 1D17-1904
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In case number 1D17-1903, Appellant seeks review of his criminal judgment and sentence for arson, and in case number 1D17-1904, he seeks review of the order revoking his probation based on several new law violations, including arson. We previously consolidated the cases for briefing and we now consolidate them for disposition.

Appellant was charged with arson for setting fire to his ex-girlfriend's apartment. He was also charged with violating his probation by committing several new law violations, including arson. A jury found Appellant guilty of arson, and the trial court found that he violated his probation. The trial court revoked Appellant's probation and sentenced him to concurrent prison terms of varying lengths for the arson and the offenses for which he was on probation.

We affirm Appellant's judgment and sentence for arson without further comment. We also summarily affirm the revocation of Appellant's probation, but for the reasons that follow, we remand for entry of a corrected revocation order.

The charging affidavit alleged that Appellant violated his probation by committing arson and three specific new law violations in Gadsden County: reckless driving, failure to obey law enforcement officer, and dealing in stolen property. The trial court, in its oral pronouncement, found that Appellant violated his probation by committing arson and two different new law violations in Gadsden County: felony fleeing and eluding and grand theft motor vehicle. Although Appellant admitted to having been found guilty of "a new law offense" in Gadsden County and he did not object to the introduction of the certified copy of the judgment reflecting his convictions for felony fleeing and eluding and grand theft motor vehicle, this court has held that it is a violation of due process and fundamental error to revoke a defendant's probation based on grounds not alleged in the charging affidavit. See Osteen v. State , 147 So.3d 678, 679 (Fla. 1st DCA 2014) ; Bonner v. State , 138 So.3d 1101, 1102 (Fla. 1st DCA 2014) ; Perkins v. State , 842 So.2d 275, 277 (Fla. 1st DCA 2003) ; N.L. v. State , 825 So.2d 509, 510 (Fla. 1st DCA 2002). However, in this case, the error does not require reversal because the record clearly establishes that the trial court would have revoked Appellant's probation based solely on the new law violation of arson. See Bourne v. State , 869 So.2d 606, 607 (Fla. 1st DCA 2004) (affirming probation revocation that was based in part on uncharged grounds because "there are sufficient valid grounds remaining upon which the trial court could have revoked [the defendant's] probation"); see also Lee v. State , 67 So.3d 1199, 1201 (Fla. 2d DCA 2011) ("When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order.").

Accordingly, we affirm the revocation of Appellant's probation, but remand for entry of a corrected revocation order reflecting that the revocation was based solely on the new law violation of arson. This disposition renders moot Appellant's argument that the written revocation order did not comport with the trial court's oral pronouncement.

Judgment and Sentence AFFIRMED ; Probation Revocation Order AFFIRMED and REMANDED with directions.

Wolf, Roberts, and Wetherell, JJ., concur.


author: Per Curiam. WINSOR, J., dissenting.

text:
    PHILIP MORRIS USA INC., Appellant/Cross-Appellee, v. Mary BROWN, as personal representative of the Estate of Rayfield Brown, Appellee/Cross-Appellant.
    No. 1D15-2337
    District Court of Appeal of Florida, First District.
    April 18, 2018 Rehearing Denied May 29, 2018
    Amir C. Tayrani of Gibson, Dunn & Crutcher LLP, Washington, DC; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC; Hassia Diolombi and Kenneth J. Reilly of Shook, Hardy & Bacon LLP, Miami; and W. Edwards Muñiz of Shook, Hardy & Bacon LLP, Tampa, for Appellant/Cross-Appellee.
    John S. Mills and Courtney Brewer of The Mills Firm, PA, Tallahassee; and John S. Kalil of Law Offices of John S. Kalil, P.A., Jacksonville, for Appellee/Cross-Appellant.
    B.L. Thomas, C.J., and Bilbrey, J., concur; Winsor, J., dissents with opinion.
   Per Curiam.

AFFIRMED .

WINSOR, J., dissenting.

The main question in this case is what happens when a deadlocked jury is instructed to reach whatever partial verdict it can-and to do so without any further deliberations. On the unusual facts of this case, I would hold that such an instruction leaves the jury incapable of producing a valid verdict. From the time jury deliberations begin until the time the jury reaches its final decision, jurors must be free to weigh and consider arguments and evidence, to consider other jurors' points of view, to attempt to persuade fellow jurors, to argue and debate-in other words, the jury must be free to deliberate until the very end. Because this jury did not have that opportunity, we should reverse and remand for a new trial.

Mary Brown filed a wrongful-death action against Phillip Morris USA, Inc., alleging that her husband died from smoking-related illnesses. She alleged strict liability, negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment. The litigation lasted years: One trial was continued during jury selection, and another ended in a mistrial after this court granted a writ of prohibition, see Philip Morris USA Inc. v. Brown , 96 So.3d 468 (Fla. 1st DCA 2012). A third trial ended with a deadlocked jury.

In the next trial-the trial at issue here-the jury's verdict form asked (among other things) whether Philip Morris's actions legally caused the husband's death, the amount of any compensatory damages, the relative percentages of fault, and whether punitive damages were warranted. After deliberating for approximately four or five hours, the jury sent out a note saying it was "stuck on the percentage" and asking "[w]hat are our options?"

After conferring with counsel, the court told the jury to follow instructions already given. The jury continued deliberating for some two additional hours before sending out another note. This one explained that jurors "have not been able to agree on question # 4 [regarding comparative fault] and therefore we cannot go any further." After more discussion with counsel, the court delivered a standard Allen charge, asking the jury to continue its deliberations. But after roughly an hour more, the jury sent out another note: "Now hung on question # 2 [regarding fraudulent concealment]. Some have change[d] their mind. It started out on question # 4. Some say yes, and some no. Now need white out for question # 2. Yesterday it was yes now today it hung [sic]."

Lawyers for both sides offered their views on how the court should proceed. Both sides agreed the court could not give a second Allen charge. Philip Morris argued the court should grant a mistrial since the jury could not reach consensus after its Allen charge. Mrs. Brown, though, argued that the court should accept a partial verdict on the issues the jury did decide. Ultimately, the court brought the jury back and told them to return to the jury room, to white out verdict-form responses on which the jury was no longer unanimous, and to fill in answers where there was unanimity. The court specifically told the jurors to not deliberate any further in doing so.

After about six minutes in the jury room, the jury returned with a partial verdict, answering two of the verdict form's six questions. The jury agreed that the husband was a member of the Engle class, see Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006), and that Philip Morris's conspiracy to conceal was a legal cause of the husband's death. Because the jury found liability on one intentional-tort theory, its inability to provide verdicts on other theories or on comparative-fault percentages was not critical, see § 768.81(4), Fla. Stat. (2013) ; see also Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 304 (Fla. 2017) ("[T]he comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims."). But there remained the unanswered questions of the amount of compensatory damages and whether punitive damages were warranted.

Over Philip Morris's objection (and motion for mistrial), the court accepted the partial verdict and scheduled another trial to resolve the remaining issues. At the end of that trial, the jury awarded compensatory damages but found Philip Morris not liable for punitive damages. Philip Morris appealed, contending that the trial court was wrong to accept the partial verdict.

On appeal, Philip Morris's opening position is that Florida does not recognize partial civil verdicts, that courts must declare mistrials whenever juries cannot agree on all issues. Philip Morris argues that no Florida appellate court has ever sanctioned a partial verdict like this one. But neither has Philip Morris cited a Florida appellate decision explicitly precluding the practice. Partial verdicts are routinely used in Florida criminal cases, see, e.g. , State v. Muhammad , 148 So.3d 159, 159-60 (Fla. 1st DCA 2014) ; Avila v. State , 86 So.3d 511, 513 (Fla. 2d DCA 2012), and they have been accepted in civil cases in federal courts, see, e.g. , Kerman v. City of New York , 261 F.3d 229, 242 n.9 (2d Cir. 2001) ("Kerman also argues that [the] decision to accept a partial verdict was error because there is no authority for this procedure. We disagree. In the absence of authority prohibiting such a partial verdict in a civil case, and Kerman cites none, we believe that at the very least a trial judge, in the exercise of sound discretion, may follow such a course."); see also Bristol Steel & Iron Works v. Bethlehem Steel Corp. , 41 F.3d 182, 190 (4th Cir. 1994) ; Bridges v. Chemrex Specialty Coatings, Inc. , 704 F.2d 175, 180 (5th Cir. 1983).

Regardless of whether partial verdicts are categorically prohibited, I would hold that the specific circumstances of this case warrant a new trial. With any partial verdict, there is a "risk that the jury will 'premature[ly] conver[t] ... a tentative jury vote into an irrevocable one," United States v. Moore , 763 F.3d 900, 911 (7th Cir. 2014) ; accord United States v. Wheeler , 802 F.2d 778, 781 (5th Cir. 1986), and when a jury had been unanimous on certain points and is later told to return to the jury room to answer whatever questions they can-without further deliberating-some jurors will feel compelled to vote consistent with their earlier position.

"It has long been the law that a trial court should not couch an instruction to a jury or otherwise act in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position." Thomas v. State , 748 So.2d 970, 976 (Fla. 1999). In deciding whether a court's instructions have violated this principle, we examine de novo the totality of the circumstances to see if the instructions "create a serious risk of coercion." Id. at 978. Considering the totality of the unique circumstances here, a new trial is warranted.

While attorneys argued about how to handle the jury's last note, the jury, having already changed its collective mind on some issues, remained together in the jury room. And there is no reason to suppose the jurors' fluid deliberations stopped while the attorneys argued. Cf. United States v. Byrski , 854 F.2d 955, 962 (7th Cir. 1988) (noting that "the state of jury deliberations is ever-changing"). When later told to end their deliberations (essentially to memorialize where they left off earlier), reasonable jurors might not have understood their options. They might not have understood that they were not locked into the positions they held immediately before sending their last note-that their vote could accommodate any new view intervening discussions produced. They might not have understood that their remaining duty was more than a ministerial duty to record their earlier positions. Cf. Harrison v. Gillespie , 640 F.3d 888, 899 (9th Cir. 2011) (explaining that jurors' preliminary votes can play important roles in the deliberative process but that these informal polls "do not constitute a final verdict"); cf. also Brutton v. State , 632 So.2d 1080, 1083 (Fla. 4th DCA 1994) ("The court's questioning created an impression that the juror did not have an absolute right to recede from her vote in the jury room during the polling process.").

When the jurors' last note told the court they were "hung" on some issues, no juror was then obligated to maintain his or her tentative vote on any issue. See United States v. Straach , 987 F.2d 232, 243 (5th Cir. 1993) ("[A] jury has not reached a valid verdict until deliberations are over ...." (quoting United States v. Taylor , 507 F.2d 166, 168 (5th Cir. 1975) ) ). Yet any juror wanting to explain (or even identify) his or her changed view would feel restricted by the court's specific instruction to cease deliberations. To the point of the final instruction, juror deliberations had been fluid-the jury found (and then lost) agreement on some issues-but by precluding further deliberations, the court precluded further opportunities for additional changed minds. Cf. Straach , 987 F.2d at 243 (noting that "continuing deliberations may shake views expressed on counts previously considered" (quoting Taylor , 507 F.2d at 168 ) ).

It is no answer to say that the jury was polled, with each juror announcing that the verdict was his or her own. The question is not whether all jurors did, in fact, vote for the ultimate verdict; the question is whether all jurors did so knowing they could change their minds-or try to change others' minds. The subsequent poll offers therefore no cure. See Moore , 763 F.3d at 910 (determining that trial court's error in instructing jury to return a partial verdict while deliberations were ongoing was not cured by polling of the jury).

For these reasons, I would reverse and remand for a new trial. This would make it unnecessary to address Philip Morris's independent argument that alleged juror misconduct requires a new trial. As to Mrs. Brown's conditional cross appeal, I would reject Philip Morris's Tipsy Coachman arguments, and I would hold that Mrs. Brown may seek punitive damages on her negligence and strict-liability claims in a new trial. See Soffer v. R.J. Reynolds Tobacco Co. , 187 So.3d 1219, 1221 (Fla. 2016). But Mrs. Brown asserted she would abandon her cross appeal if she prevailed in the main appeal, which-despite my view-she now has.

      An Allen charge is a supplemental instruction courts frequently give when a jury struggles to reach a verdict. Gahley v. State , 567 So.2d 456, 459 (Fla. 1st DCA 1990) (citing Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) ).

      In Tomlinson v. State , 584 So.2d 43 (Fla. 4th DCA 1991), the Fourth District followed United States v. Seawell , 550 F.2d 1159 (9th Cir. 1977), and adopted a per se rule that giving a second Allen charge is fundamental error. No other district in this state has adopted this rule, Nottage v. State , 15 So.3d 46, 49 (Fla. 3d DCA 2009), and many federal courts have explicitly rejected it, see, e.g., United States v. Davis , 779 F.3d 1305, 1313 (11th Cir. 2015) ("We have never adopted a per se rule against successive Allen charges. Other circuits have held there is not a per se rule." (collecting cases) ). Florida's standard jury instructions do include a comment that the deadlock instruction "should be given only once," but that comment is based solely on Tomlinson , Fla. Std. Jury Instr. (Civ.) 801.3, and standard jury instructions are not binding precedent, BellSouth Telecomms., Inc. v. Meeks , 863 So.2d 287, 292 (Fla. 2003) ; see also In re Std. Jury Instrs. in Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury Instrs.) , 35 So.3d 666, 671 (Fla. 2010) (cautioning "that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability").


text:
    Anthony Dale CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4294
    District Court of Appeal of Florida, First District.
    April 20, 2018 Rehearing Denied May 31, 2018
    Anthony Dale Carter, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the denial of the Appellant's claim that he is entitled to 441 days of credit for count 11 as orally pronounced during his sentencing hearing and remand for the trial court to award that credit. State v. Williams , 870 So.2d 207 (Fla. 1st DCA 2004) ("It is a longstanding principle that a court's oral pronouncement controls over any written sentencing document.") (citing Ashley v. State , 850 So.2d 1265, 1268 (Fla. 1st DCA 2003) ). We affirm the denial of the Appellant's other claims.

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

Wolf, Roberts, and Wetherell, JJ., concur.


text:
    Alvin SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5330
    District Court of Appeal of Florida, First District.
    April 20, 2018 Rehearing Denied May 31, 2018
    Alvin Sharpe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Martinez v. State , 211 So.3d 989, 992 (Fla. 2017) (holding that alleged defect in information, which purportedly deprived defendant of his due process right to notice of potential enhanced sentence, did not result in an "illegal sentence" subject to correction under Florida Rule of Criminal Procedure 3.800(a) ).

Rowe, Ray, and Makar, JJ., concur.


text:
    DEPARTMENT OF REVENUE and Porshaun Walker, Appellants, v. Michael Eady BROWN, Appellee.
    No. 1D17-2671
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee; Carrie R. McNair, Assistant Attorney General, Office of Child Support Enforcement, Tallahassee, for Appellant Department of Revenue.
    No appearance for Appellee.
   Per Curiam.

As the result of a request from the Nevada Child Support Enforcement Program to determine paternity and support for minor child Z.W., the Florida Department of Revenue (the "Department") initiated the present paternity action.

On January 20, 2017, the Department served Appellee, Z.W.'s putative father, with a Notice of Administrative Proceeding to Establish Paternity pursuant to section 409.256(4)(a)7.b., Florida Statutes. In April 2017, Appellee received the results of a DNA test establishing that he was Z.W.'s father.

A hearing was held on the Department's Proposed Administrative Paternity and Support Order, where the Department requested that Appellee be required to pay retroactive child support for the period beginning twenty-four months before Appellee was served with notice of the paternity proceeding, the maximum amount allowed by section 61.30(17), Florida Statutes. The Division of Administrative Hearings issued a final support order on June 22, 2017, finding the minor child had a need for support and Appellee had the ability to pay, and ordering, inter alia , that Appellee pay retroactive support from April 1, 2017 through June 30, 2017, based on the date Appellee received notice of the DNA test results establishing his paternity of Z.W.

However, "the service date of the notice of paternity proceeding ... should be the operative date for administrative proceedings in which the Department uses the bifurcated procedure in section 409.256(4)." Dep't of Revenue ex rel. Sorto v. LaGree , 106 So.3d 534, 537 (Fla. 1st DCA 2013). " Section 61.30(17), as well, supports using the service date of the notice of paternity proceeding to determine the retroactive period." Id. at 536.

Here, the Department served Appellee with a Notice of Administrative Proceeding to Establish Paternity pursuant to section 409.256(4)(a)7.b., Florida Statutes, on January 20, 2017. Therefore, the order should have calculated retroactive support based on the service date of the paternity proceeding, not the date that Appellee was given notice of the DNA test results.

We reverse the final order and remand for a recalculation of retroactive child support based on the date that Appellee was served with notice of the paternity action.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.