text:
    Solomon D. ROBERTS, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC16-1150
    Supreme Court of Florida.
    March 23, 2017
    Solomon D. Roberts, pro se, Bowling Green, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

Solomon D. Roberts has filed a pro se petition for writ of habeas corpus with this Court. The petition is the twenty-fifth petition or notice that Roberts has filed with the Court since 2000. We dismissed Roberts’ petition and expressly retained jurisdiction for possible imposition of sanctions. Roberts v. Jones, No. SC16-1150, Order at 1 (Fla. Sept. 29, 2016); see Fla. R. App. P. 9.410(a) (Sanctions; Court’s Motion).

In 1982, Roberts pled guilty to several counts of attempted first-degree murder, robbery with a deadly weapon, armed burglary, and kidnapping in the Circuit Court for the Eleventh Judicial Circuit,-in and for Miami-Dade County, Florida. He was sentenced to life in prison for those offenses on November 16, 1982 (case numbers 78-CF-5774, 82-CF-8169, 82-CF-9856, and 82-CF-15413).

After his cases became final, Roberts repeatedly sought postconviction relief from his convictions and sentences. His repeated filing of frivolous pro se requests for relief in other courts has resulted in both the Third District Court of Appeal and the Eleventh Judicial Circuit barring Roberts from filing any further pro se requests for relief. See Roberts v. State, No. 3D13-1438 (Fla. 3d DCA Feb. 29, 2014); State v. Roberts, No. 82-CF-8169 (Fla. 11th Cir. Ct. Jan 23, 2015).

The instant habeas petition is Roberts’ most recent attempt to overturn his convictions and sentences. It is the twenty-fifth pro se petition or notice that Roberts has filed with this Court since 2000. In it, Roberts again challenged his convictions and sentences, along with the circuit court’s application of its barring order to a pro se postconviction motion that he attempted to file there. The petition in this case was meritless, and we dismissed it in part, see Pettway v. State, 776 So.2d 930, 931 (Fla. 2000), and dismissed it as unauthorized in part, see Baker v. State, 878 So.2d 1236 (Fla. 2004). In so doing, we expressly retained jurisdiction and, in accordance with State v. Spencer, 751 So.2d 47 (Fla. 1999), directed Roberts to show cause why he should not be barred from filing any future pro se requests for relief and referred to the Florida Department of Corrections for possible disciplinary action pursuant to section 944.279(1), Florida Statutes (2016).

In his response to the show cause order, Roberts argued that he should not be sanctioned by the Court because his illegal sentence constitutes a manifest injustice, and he should not be sanctioned for diligently pursuing justice and challenging the legality of his sentence. Both the circuit court and district court, however, have specifically considered Roberts’ illegal sentence and manifest injustice claims and denied him relief. See, e.g., Roberts v. State, 156 So.3d 2, 3 (Fla. 3d DCA 2014); State v. Roberts, No. 78-CF-5774 (Fla. 11th Cir. Ct. Aug. 27, 2015). Roberts’ inability to obtain the relief he seeks elsewhere does not justify his repeated misuse of this Court’s limited judicial resources. Additionally, at no point in Roberts’ response does he provide any indication that he will abstain from further abuse of the judicial process if left unrestrained. Accordingly, we conclude that Roberts has failed to show cause why sanctions should not be imposed. We further conclude that Roberts’ petition in this case is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat.

The Clerk of this Court is therefore directed to reject any future pleadings or other requests for relief submitted by Solomon D. Roberts that pertain to his convictions or sentences (case numbers 78-CF-5774, 82-CF-8169, 82-CF-9856, and 82-CF-15413) unless such filings are signed by a member in good standing of The Florida Bar. Going forward, Roberts may only petition the Court about his convictions or sentences through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. Additionally, and consistent with section 944.279(1), we direct the Clerk of this Court to forward a certified copy of this opinion to the Florida Department of Corrections’ institution or facility where Roberts is incarcerated. See Steele v. State, 14 So.3d 221, 224 (Fla. 2009).

No motion for rehearing or clarification will be entertained by the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      . We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.

      . Roberts v. State, No. SC15-1850 (Fla. Jan. 4, 2016) (transferring all writs petition to district court); Roberts v. Jones, 192 So.3d 41 (Fla. 2015) (table) (dismissing habeas petition as unauthorized), cert. denied, — U.S. —, 136 S.Ct. 2019, 195 L.Ed.2d 226 (2016); Roberts v. State, No. SC 14-1134 (Fla. June 12, 2014) (transferring notice of appeal to district court); Roberts v. State, No. SC 14-1038 (Fla. June 2, 2014) (transferring notice of appeal to district court); Roberts v. State, 145 So.3d 827 (Fla. 2014) (table) (denying prohibition petition); Roberts v. State, 143 So.3d 921 (Fla. 2014) (table) (dismissing mandamus petition); Roberts v. Crews, 123 So.3d 1147 (Fla. 2013) (table) (denying habeas petition as procedurally barred); Roberts v. Crews, No. SC12-1642 (Fla. Oct. 26, 2012) (denying habeas petition as procedurally barred); Roberts v. State, 90 So.3d 272 (Fla. 2012) (table) (dismissing prohibition petition for lack of jurisdiction); Roberts v. State, 75 So.3d 1245 (Fla. 2011) (table) (denying prohibition petition); Roberts v. McNeil, 59 So.3d 109 (Fla. 2011) (table) (dismissing habeas petition as unauthorized); Roberts v. State, 48 So.3d 837 (Fla. 2010) (table) (dismissing petition for belated discretionary review for lack of jurisdiction); Roberts v. State, 14 So. 3d 1004 (Fla. 2009) (table) (dismissing all writs petition for lack of jurisdiction); Roberts v. Fla. Bar, 10 So.3d 1100 (Fla. 2009) (dismissing mandamus petition for lack of jurisdiction); Roberts v. McDonough, 965 So.2d 123 (Fla. 2007) (table) (denying habeas petition as procedurally barred); Roberts v. State, 952 So.2d 1191 (Fla. 2007) (table) (dismissing all writs petition); Roberts v. Fla. Bar, 926 So.2d 1270 (Fla. 2006) (table) (dismissing mandamus petition for lack of jurisdiction); Roberts v. State, 924 So.2d 810 (Fla. 2006) (table) (dismissing mandamus petition); Roberts v. Fla. Bar, 920 So.2d 627 (Fla. 2005) (table) (dismissing mandamus petition for lack of jurisdiction); Roberts v. State, 905 So.2d 892 (Fla. 2005) (table) (dismissing mandamus petition); Roberts v. State, 900 So.2d 554 (Fla. 2005) (table) (dismissing mandamus petition); Roberts v. State, 841 So.2d 466 (Fla. 2003) (table) (denying notice to invoke discretionary jurisdiction); Roberts v. State, No. SCO1-23 (Fla. Apr. 4, 2001) (transferring habeas petition to circuit court); Roberts v. State, 770 So.2d 160 (Fla. 2000) (table) (dismissing notice to invoke discretionary jurisdiction).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Chadrick V. PRAY, Petitioner, v. Brenda D. FORMAN, Clerk, Respondent.
    No. SC16-713
    Supreme Court of Florida.
    March 23, 2017
    Chadrick V. Pray, pro se, Lake City, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

Chadrick V. Pray has filed a pro se petition for writ of mandamus with this Court. His petition in this case is the twelfth extraordinary writ petition he has filed with this Court since 2010. We dismissed Pray’s petition in this case and, in so doing, expressly retained jurisdiction to pursue possible sanctions against him. Pray v. Forman, No. SC16-713, Order at 1, 2016 WL 3459829 (Fla. June 24, 2016) (dismissing petition for writ of mandamus and directing Pray to show cause why he should not be barred from filing any further pro se requests for relief); see Fla. R. App. P. 9.410(a) (Sanctions; Court’s Motion).

Pray was convicted in the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida, of attempted first-degree murder and attempted robbery with a gun or deadly weapon (Case No. 00-3032CF10A). He was sentenced in October 2000 to life in prison on each count. The Fourth District Court of Appeal per curiam affirmed Pray’s convictions and sentences on November 20, 2002. Pray v. State, 833 So.2d 149 (Fla. 4th DCA 2002) (table).

After his case became final, Pray initiated a series of postconviction challenges to his convictions and sentences. His repeated attempts to obtain such relief resulted in the entry of pro se barring orders by both the Seventeenth Judicial Circuit, see State v. Pray, No. 00-3032CF10A (Fla. 17th Cir. Ct. July 22, 2013), and the Fourth District, see Pray v. State, No. 4D13-3367 (Fla. 4th DCA Apr. 10, 2014).

Pray’s petition in this case is the result of yet another attempt to challenge his convictions and sentences. It is the twelfth extraordinary writ petition he has filed with this Court since 2010. Each of his eleven other filings addressed his convictions and sentences in circuit court Case No. 00-3082CF10A, and has either been frivolous, devoid of merit, or inappropriate for consideration by this Court. We have never granted Pray the relief sought by him in any of his filings.

Pray’s mandamus petition in this case is no exception. In it, Pray challenged the application of the circuit court’s pro se barring order and requested that this Court order the Clerk of the circuit court to transmit his pro se filings to the circuit court for consideration. We dismissed the petition pursuant to Pettway v. State, 776 So.2d 930 (Fla. 2000), and, in accordance with State v. Spencer, 751 So.2d 47 (Fla. 1999), directed Pray to show cause why he should not be barred from filing any future pro se requests for relief and referred to the Florida Department of Corrections for possible disciplinary action pursuant to section 944.279(1), Florida Statutes (2016).

Pray filed a response to the order to show cause in which he argues that the Court should have addressed the merits of his mandamus petition. However, Pray’s response fails to offer any justification for his use, or express any remorse for his repeated misuse, of the Court’s limited judicial resources.

This Court has exercised its inherent authority to sanction litigants who abuse the judicial process and burden its limited resources with repeated requests for relief that are either frivolous or devoid of merit. E.g., Nelson v. Crews, 110 So.3d 890, 891 (Fla. 2013); Green v. Tucker, 101 So.3d 358 (Fla. 2012). Pray’s persistent filing of frivolous or meritless requests for relief is an abuse of the judicial process and has burdened this Court’s limited judicial resources. Because Pray has repeatedly raised the same meritless arguments, and appears not to be dissuaded by dismissals and denials of relief, it is evident that Pray will continue to abuse the judicial process and burden this Court with frivolous and meritless filings challenging his convictions and sentences in circuit court Case No. 00-3032CF10A if no action is taken.

Accordingly, the Clerk of this Court is hereby directed to reject any future pleadings or other requests for relief submitted by Chadrick V. Pray that pertain to circuit court Case No. 00-3032CF10A, unless such filings are signed by a member in good standing of The Florida Bar. Henceforth, Pray may only petition the Court about his convictions or sentences in Case No. 00-3032CF10A through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith.

Additionally, we find that the petition filed by Chadrick Y. Pray in this case is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2016). Consistent with section 944.279(1), Florida Statutes (2016), we direct the Clerk of this Court to forward a certified copy of this opinion to the Florida Department of Corrections’ institution or facility where Pray is incarcerated. See Steele v. State, 14 So.3d 221, 224 (Fla. 2009).

No motion for rehearing or clarification will be entertained by the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . See Pray v. Satz, No. SC16-120, 2016 WL 1171919 (Fla. Mar. 24, 2016) (quo warranto petition dismissed); Pray v. Jones, 192 So.3d 40 (Fla. 2015) (habeas petition dismissed as unauthorized); Pray v. Jones, 182 So.3d 634 (Fla. 2015) (table) (habeas petition dismissed as unauthorized); Pray v. Jones, 160 So.3d 897 (Fla. 2015) (table) (habeas petition dismissed); Pray v. Crews, 153 So.3d 908 (Fla. 2014) (table) (habeas petition dismissed as unauthorized); Pray v. State, 153 So.3d 908 (Fla. 2014) (table) (prohibition petition denied); Pray v. State, 147 So.3d 526 (Fla. 2014) (table) (prohibition petition dismissed in part and denied in part); Pray v. State, 130 So.3d 1277 (Fla. 2013) (table) (all writs petition dismissed); Pray v. State, 79 So.3d 745 (Fla. 2012) (table) (mandamus petition dismissed); Pray v. State, 84 So.3d 1032 (Fla. 2012) (table) (mandamus petition dismissed as moot); Pray v. State, 36 So.3d 84 (Fla. 2010) (table) (mandamus petition dismissed as moot).


author: Gross, J.

text:
    Todd WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4394
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

At issue in this ease is whether the trial court had jurisdiction when it resentenced appellant after he knowingly violated a sentencing agreement with the state. Because the court did not have jurisdiction to reséntence appellant over 3 years after he was originally sentenced, we reverse.

Appellant Todd Watson faced charges of possession of oxycodone and driving under the influence in one case, and trafficking in oxycodone in an amount of 28 grams or more but less than 30 kilograms in another case. After entering into a substantial assistance agreement with the state, appellant pled guilty to all counts in both cases. Appellant was not sentenced at the time of the plea.

After violating the substantial assistance agreement, appellant entered into a “stipulated agreed sentence” with the state. The stipulated sentencing agreement provided that appellant would be sentenced to 6 years in prison in exchange for agreeing to “not file or threaten to file any complaints or litigation regarding any and all law enforcement members, agencies, or the State involved in the arrest and prosecution of his cases,” and to waive all postcon-viction and appellate rights. If appellant violated the agreement, he would automatically be resentenced to 35 years with a mandatory minimum of 25 years, and a $500,000 fine would be imposed.

In May 2011, Judge Gillespie approved the agreement and sentenced appellant to 6 years on one case and a concurrent term of 5 years on the other.

By October 2014, appellant had intentionally, egregiously, and repeatedly violated the agreement. For example, appellant filed multiple postconviction motions over 3 years. In response, the state filed an emergency motion to enforce the agreement’s automatic resentence provision. Finding that appellant violated the agreement, and that he knowingly entered into it, Judge Levenson resentenced him to 30 years with a mandatory minimum of 25 years, and assessed a $500,000 fine.

Appellant argues that the court did not have jurisdiction to enforce the agreement and increase his sentence. The state asks us to dismiss the case because appellant waived his appellate rights.

There are set pathways a party can use to invoke the court’s jurisdiction in a criminal case. Such pathways are established by statutes and procedural rules. Once a sentence has been imposed, a circuit court’s jurisdiction can be reinvoked “only under certain circumstances.” Spain v. State, 849 So.2d 340, 341 (Fla. 2d DCA 2003).

The Florida Supreme Court has recognized that, without an applicable statute or procedural rule, a court’s jurisdiction in a criminal case cannot be reinvoked after sentencing. In Sanchez v. State, the defendant was adjudicated and sentenced to a 3-year probationary term. 541 So.2d 1140, 1141 (Fla. 1989). Two years later, he moved to mitigate the term of probation and to vacate the adjudication. Id. The trial judge granted the early termination of the probation, but refused to vacate the adjudication. Id. The defendant argued on appeal that, “because the trial judge can adjudicate him guilty if he fails to meet the requirements of probation,” he could likewise vacate an adjudication if the defendant complies with probation. Id. at 1142. The court disagreed, explaining that “there is no rule, statute, or decision of this Court authorizing such action beyond the sixty-day limitation” of rule 3.800(c).

This limitation on a criminal court’s jurisdiction was acknowledged by McCoy v. State, 599 So.2d 645, 649 (Fla. 1992). There, the court observed that prior to the creation of rule 3.170(g), “[t]he State’s ability to have a breached plea agreement vacated [wa]s not without its limitations.” Id. at 649. The supreme court thus found it “more appropriate to establish a definitive procedural rule that would provide the prosecution with a method of addressing a defendant’s noncompliance with the specific terms of a plea agreement.” Id.; see also Amendments to Fla. Rules of Crim. P. 3.170 & 3.700, 633 So.2d 1056, 1057-58 (Fla. 1994).

Here, the state did not travel down any existing procedural pathway to rein-voke the court’s jurisdiction. Indeed, it could not have, because none would apply. Rule 3.800(c) was inapplicable because it was well beyond the 60-day period, and rule 3.170(g) would not apply because the state was not looking to vacate appellant’s plea. See Spain, 849 So.2d at 342 (explaining that rule 3.170(g) “contemplates that the defendant’s plea, as well as his sentence, will be vacated”).

This case is like Spain, where the circuit court increased the defendant’s sentence after he violated a cooperation agreement with the state. Id. at 341. On July 24, 2000, after entering a guilty plea, the Spain defendant was sentenced to 60 months on one count and 15 years on another. Id. at 340-41. On August 3, the defendant entered into a cooperation agreement with the state, which called for the circuit court to vacate the defendant’s original sentence, and provided that he would be resentenced in 90 days. Id. If the defendant failed to comply with the agreement, he would be resentenced to 30 years. Id. On April 30, 2001, after the defendant allegedly violated the agreement, the circuit court sentenced the defendant to 30 years on count one and further imposed the 15-year sentence on count two. Id.

The second district reversed because “the court had no jurisdiction to increase [the defendant’s] sentence.” Id. While rule 3.800(c) gave the circuit court jurisdiction to vacate the defendant’s 60-month sentence, “it did not give it jurisdiction to increase his sentence some eight months later.” Id. at 342. Additionally, rule 3.170(g) would not have applied because that rule “contemplates that the defendant’s plea, as well as his sentence, will be vacated,” and the cooperation agreement was not a part of the plea agreement./^. “In short, the circuit court had no jurisdiction to honor or enforce the terms of the cooperation agreement, and the parties were not empowered to grant that jurisdiction by their contract.” Id.

Similarly, here, the state asserts that the agreement itself provided the court with jurisdiction to resentence appellant, but in a criminal case such as this one, jurisdiction cannot be created by an agreement of the parties. Snider v. Snider, 686 So.2d 802, 804 (Fla. 4th DCA 1997); see also Ingraham v. State, 122 So.3d 934, 935 (Fla. 2d DCA 2013). Moreover, neither such jurisdiction, nor the ability to protest its absence, can be waived. See Alvarez v. City of Plantation, 824 So.2d 339, 340 (Fla. 4th DCA 2002); Waggy v. State, 935 So.2d 571, 573 (Fla. 1st DCA 2006) (quoting Young v. State, 439 So.2d 306, 308 (Fla. 5th DCA 1983)).

The state attempts to analogize the agreement here to a Quarterman agreement. See Quarterman v. State, 527 So.2d 1380 (Fla.1988). Through a Quarterman agreement, a court can grant a furlough between the plea hearing and the sentencing hearing, and if the defendant does not appear for sentencing as agreed, “the trial court can sentence the defendant to any lawful sentence even if it is a sentence in excess of the sentence specified in the negotiated plea agreement.” Neeld v. State, 977 So.2d 740, 743 (Fla. 2d DCA 2008). Thus, with a Quarterman agreement, the court retains jurisdiction because the defendant is not sentenced until after the furlough.

Here, unlike a Quarterman agreement, the court lost jurisdiction after it sentenced appellant to 6 years. See Spain, 849 So.2d at 341 (explaining that the circuit court did not have jurisdiction to increase the sentence once it was imposed). Without an applicable rule of procedure or statute, jurisdiction could not be reinvoked. We therefore reverse and remand for reinstatement of appellant’s 6-year sentence, and order that appellant be discharged because the sentence has been completed.

Reversed and remanded.

Warner and Forst, JJ., concur.


author: Per Curiam.

text:
    Diego TAMBRIZ-RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2957
    District Court of Appeal of Florida, Fourth District.
    [March 1, 2017]

      Diego Tambriz-Ramirez, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the trial court’s order denying appellant’s motion for postconviction relief. Because our rationale for affirmance differs from that of the trial court, we write to explain why appellant’s double jeopardy claim lacks merit. We certify conflict with decisions of the First and Fifth District Courts of Appeal, which have found a double jeopardy violation where a defendant is convicted of burglary with an assault and aggravated assault committed in the same episode.

Background

The following summary of the evidence is derived from appellant’s direct appeal, which was reversed in part for resentenc-ing. Tambriz-Ramirez v. State, 112 So.3d 767 (Fla. 4th DCA 2013).

Armed with a knife and using a shirt as a mask, appellant broke into the victim’s home at night and attempted to sexually batter her. The victim testified that during the attack, appellant put the knife to her face and neck. The victim fought off the attacker and, after pulling off the mask, recognized appellant, whom she knew. Appellant ultimately confessed his guilt to police and sent letters to the victim before trial, apologizing and asking her to drop the charges.

The State charged appellant as follows: Count 1, Burglary of a Dwelling with an Assault or Battery While Armed and Masked; Count 2, Aggravated Assault with a Deadly Weapon While Masked; and Count 3, Attempted Sexual Battery—Person 12 Years of Age or Older—Using Great Force or a Deadly Weapon.

The jury convicted appellant as charged on all counts and in a special interrogatory on the verdict form for Count 1 found that during the commission of the burglary he was armed or became armed with “a deadly weapon.” The court sentenced him to life in prison for the burglary, a consecutive 15 years in prison for the aggravated assault, and a consecutive 30 years in prison for the attempted sexual battery. Following this Court’s remand on direct appeal, appellant was resentenced to 15 years in prison for the attempted sexual battery. See Tambriz-Ramirez, 112 So.3d at 768.

Appellant filed a timely amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 raising various issues, including a claim that his trial attorney was ineffective in failing to raise a double jeopardy violation. The trial court held an evidentiary hearing and entered an order denying all of appellant’s claims. As to the double jeopardy issue, the trial court concluded that the outcome of the proceedings would not have differed because appellant received a life sentence.

Analysis

On appeal, appellant argues that the trial court erred in concluding that no prejudice occurred in the alleged double jeopardy violation. He contends that Count 2, aggravated assault, and Count 3, attempted sexual battery, were subsumed within Count 1, burglary with an assault or battery.

Appellant is correct that the trial court erred in concluding that he was not “prejudiced” by the alleged double jeopardy violation. Although appellant is serving a life sentence on Count 1, and his challenge to Counts 2 and 3 may not necessarily reduce the term of his incarceration, a double jeopardy violation can be raised in a timely rule 3.850 motion. Beatty v. State, 647 So.2d 266, 267 (Fla. 4th DCA 1994). Appellant is not required to show that the convictions being challenged on double jeopardy grounds result in an increase in the term of his incarceration. See State v. Johnson, 483 So.2d 420, 423 (Fla. 1986) (concluding that the issue of prejudice was not an appropriate consideration in a rule 3.850 challenge to a double jeopardy violation).

We nevertheless affirm because appellant’s convictions for separate offenses arising from this same criminal episode do not violate double jeopardy. As explained below, neither aggravated assault, nor attempted sexual battery, is subsumed within the offense of burglary with an assault or battery.

The double jeopardy clauses in the Constitution of the United States, and in the Florida Constitution, prohibit multiple punishments for the same offense. However, these clauses do not prohibit multiple punishments for-different offenses arising from the same transaction or episode if the Legislature intended to authorize separate punishments. Roughton v. State, 185 So.3d 1207, 1209 (Fla. 2016) (citing Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009)).

The Legislature has provided:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2009) (emphasis supplied). “Where even a single act constitutes multiple separate criminal offenses, as defined in section 775.021(4)(a), the offender must be sentenced separately for each offense unless one of the three exceptions in section 775.021(4)(b) applies.” Rougkton, 185 So.3d at 1210.

Burglary, which is proscribed in section 810.02, Florida Statutes (2009), is a separate offense from aggravated assault (section 784.021) and sexual battery (section 794.011). Each offense requires proof of an element that the other does not. These offenses do not require identical elements of proof, nor are they degrees of the same offense as provided by statute. See Valdes, 3 So.3d at 1076 (holding that the degree-variant exception applies “only when the statute itself provides for an offense with multiple degrees”) (citation omitted).

Appellant’s double jeopardy claim is based on his contention that the aggravated assault and attempted sexual battery offenses are “subsumed within” the burglary offense. In relevant part, the burglary statute provides:

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault or battery upon any person; or
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or
(c) Enters an occupied or unoccupied dwelling or structure, and:
1. Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damages the dwelling or structure; or
2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

§ 810.02(2), Fla. Stat. (2009).

(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.

§ 784.021, Fla. Stat. (2009). A simple “assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2009).

Appellant was charged and convicted of a first-degree felony burglary with an assault or battery, and he was also found to have been armed with a deadly weapon during the burglary. His aggravated assault was based on his use of the same deadly weapon. However, the analysis must be conducted “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat. (2009). The Florida Supreme Court emphasized this in Roughton, where it held that, when considering a statute that proscribes conduct in the alternative (offenses that can be committed in more than one way), the analysis must consider the entire range of conduct prohibited by the statutes, not the specific conduct charged or proven at trial. 185 So.3d at 1210-11.

Thus, the fact that appellant was charged and found guilty of a burglary with an assault or battery while armed with a deadly weapon and that he was also charged and found guilty of aggravated assault with a deadly weapon is irrelevant. Examining strictly the statutory elements and the entire range of conduct proscribed by these statutes demonstrates that these are separate offenses for which the Legislature intends separate punishments. The statutory elements of aggravated assault include (a) use of a deadly weapon or (b) intent to commit a felony, and neither of these elements is subsumed within a burglary with an assault or battery. We also observe that being or becoming armed with a dangerous weapon during a burglary, which can include mere possession of the weapon, is distinct from using a deadly weapon to commit an aggravated assault.

The subsumed-within exception of section 775.021(4)(b)3, applies “only if the greater offense necessarily includes the lesser offense.” State v. McCloud, 577 So.2d 939, 941 (Fla. 1991). Aggravated assault is not necessarily included within a burglary with an assault or battery offense. Simply stated, a defendant can commit a burglary with an assault or battery without also committing an aggravated assault.

We have recognized that, under the section 775.021(4)(b)3 exception, a simple assault or a simple battery is necessarily included within a burglary with an assault or battery offense. Blevins v. State, 756 So.2d 1052, 1055 (Fla. 4th DCA 2000). In contrast, the districts have come into agreement that double jeopardy does not bar a defendant’s convictions for burglary with a battery and aggravated battery committed in one criminal episode. Id. (agreeing with Billiot v. State, 711 So.2d 1277 (Fla. 1st DCA 1998), and Washington v. State, 752 So.2d 16 (Fla. 2d DCA 2000) (en banc)); State v. Reardon, 763 So.2d 418, 419 (Fla. 5th DCA 2000) (en banc) (receding from Crawford v. State, 662 So.2d 1016 (Fla. 5th DCA 1995), and holding that “there is no statutory or constitutional bar to the entry of convictions for both aggravated battery and burglary with a battery arising out of the same criminal episode”); Irizarry v. State, 905 So.2d 160, 167 (Fla. 3d DCA 2005) (concluding that double jeopardy does not preclude convictions for burglary with a battery and aggravated battery).

Despite this, some decisions of the First and Fifth District Courts of Appeal have held that convictions for burglary with an assault and aggravated assault violate double jeopardy. In reaching this conclusion, these courts may have relied on the fact the defendant was charged and convicted of using or being armed with a firearm as to both the burglary and aggravated assault offenses. For example, in Baldwin v. State, 790 So.2d 434, 435 (Fla. 1st DCA 2000), the First District held:

Because all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with assault while armed with a firearm, Baldwin’s dual convictions are in violation of the prohibition against double jeopardy.

Id. at 435; see also Smith v. State, 154 So.3d 523, 524 (Fla. 1st DCA 2015) (concluding that aggravated assault convictions were subsumed within a conviction for armed burglary with assault); McGhee v. State, 133 So.3d 1137, 1138 (Fla. 5th DCA 2014) (reversing “the conviction for aggravated assault with a firearm because it is subsumed into the greater offense of burglary of a dwelling with an assault or battery while armed with a firearm”); Green v. State, 120 So.3d 1276, 1278 (Fla. 1st DCA 2013) (same); Estremera v. State, 107 So.3d 511 (Fla. 5th DCA 2013) (same); White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000) (same); cf Dykes v. State, 200 So.3d 162, 163 (Fla. 5th DCA 2016) (remanding a rule 3.850 claim for the trial court to determine “if double jeopardy bars [defendant’s convictions for aggravated battery with a firearm and aggravated assault with a firearm because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm”); Hankins v. State, 164 So.3d 738, 738 (Fla. 5th DCA 2015) (granting relief where the State conceded that “convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm”).

These holdings cannot be reconciled with the requirement that the analysis be conducted “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a) Fla. Stat. (2009) (emphasis supplied). These cases seem to improperly focus on the fact that the burglary and assault offenses were charged and proven with a firearm. Much of the confusion may arise because the reviewing courts looked at the title of the charges, the specific allegations in the charging document, or the jury’s findings in its verdict, instead of looking exclusively to the statutory elements of the offenses. In any event, as is now clear, courts should not look beyond the statutory elements when conducting a double jeopardy analysis.

Accordingly, we certify conflict with the decisions of the First and Fifth District Courts of Appeal in Dykes, Hankins, McGhee, Green, Estremera, Baldwin, Smith and White, which hold that an aggravated assault offense is subsumed within a burglary with an assault or battery.

Notably, White and Baldioin, two of the early decisions in this line, both relied on the Second District Court of Appeal’s decision in Henderson v. State, 727 So.2d 284 (Fla. 2d DCA 1999), which had concluded that the defendant’s convictions for aggravated assault and burglary with an assault violated double jeopardy. However, the Second District receded from Henderson when it decided Washington, 752 So.2d at 18, and held that double jeopardy does not preclude convictions for burglary with a battery and aggravated battery.

Finally, for analogous reasons, we reject appellant’s claim that his attempted sexual battery is subsumed within his burglary with an assault or battery offense. See State v. Nardi, 779 So.2d 596, 596 (Fla. 4th DCA 2001) (“[T]he offenses of attempted sexual battery and burglary of a dwelling with battery do not violate double jeopardy principles.”).

Affirmed. Conflict certified.

Gerber, Levine and Conner, JJ., concur.

      . We also affirm without discussion appellant's claim that the court considered and relied on improper sentencing factors.


author: May, J.

text:
    Donald STANBRO, Appellant, v. MCCORMICK 105, LLC, Carol Perfect and Bank of America, N.A., Appellees.
    No. 4D16-3071
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]

      Peter E. Shapiro of Shapiro Law, Ft. Lauderdale, for appellant.
    Robin S. Moselle of LawCraft, Plantation, for appellee McCormick 105, LLC.
    Alexander M. Goerss of Liebler, Gonzalez & Portuando, Miami, for appellee Bank of America, N.A.
   May, J.

The owner of a garnished bank account appeals an order denying his motion to vacate a final judgment in garnishment. He raises three issues, one of which has merit. In his third issue, the owner argues the trial court erred in denying his motion to vacate the final judgment of garnishment. We agree. There was no evidence to rebut the owner’s claim of sole ownership of the account garnished. We therefore reverse.

A final judgment of foreclosure was entered against the debtor, Carol Perfect, who is the girlfriend of the owner. The sale of the girlfriend’s property resulted in a deficiency, for which the creditor obtained a judgment. The creditor then moved for a writ of garnishment against an account at Bank of America (the “garnishee”). The account was in the name of the owner Donald Standbro and Carol Perfect Revocable Trust, Donald L. Stanbro & Carol R. Perfect, Trustee. The trial court granted the motion. The garnishee answered the writ listing two accounts, one of which is at issue. The garnishee also questioned the propriety of garnishing the trust account.

The owner was not involved in the foreclosure. He is however the sole trustee of the trust, which maintained the account at the garnishee. The owner claimed he contributed all monies in the account other than the debtor’s one time deposit of $8.90.

The garnishee listed the account as:

Donald Standbro and Carol Perfect Revocable Trust
Donald L. Stanbro <& Carol R. Perfect, Trustee
2110 Congressional Way
Deerfield Beach, FL 33442-9172

The revocable trust named on the account identified the owner as the sole trustee, and the debtor as a successor trastee. The first line of the trust agreement provided that it is “by and between [the owner] AND CAROL R. PERFECT, hereinafter called the Grantors, and [the owner], hereinafter called the Trustee.” It later provides: “In the event of the death or incapacity of [the owner], Carol R. Perfect shall be the Successor Trustee. At the end of the agreement, it states that “the word ‘Trustee’ or ‘Trustees’ shall mean all Trustees and Successor Trustees, if there are more than one, unless the context clearly indicates otherwise.”

The owner moved to dissolve the writ of garnishment as a party in interest as trustee. A senior judge conducted an evidentia-ry hearing and denied the motion to dissolve. The trial court then entered final judgment in garnishment. The owner moved to vacate the final judgment, which the trial court denied. From this order, the owner now appeals.

The owner argues the trial court erred in denying his motion to vacate the final judgment in garnishment when the creditor failed to rebut his proof that the debtor had no interest in the bank account. We agree and reverse.

Before a final judgment in garnishment is entered, the trial court should conclusively determine the interests in the funds and the applicable law thereto. Antuna v. Dawson, 459 So.2d 1114, 1117 (Fla. 4th DCA 1984). “[Property which is not actually and in good conscience deemed to be owned by the debtor may not be secured by the judgment creditor.” Id. at 1116 (quotation marks omitted).

For garnishment purposes, funds in a bank account are presumed to belong to the person in whose name it stands. Branch Banking and Trust Co. v. ARK Dev./Oceanview, LLC, 150 So.3d 817, 820 (Fla. 4th DCA 2014). When the account contains more than one name and a third party named on the account claims ownership of the account’s funds, the garnishor must prove that the garnished funds belong exclusively to the debtor. Id. at 819-20 (“[I]t is the garnishor’s burden to prove that the property garnished was the property of the debtor.”).

Here, the account name was listed as the owner and Carol Perfect Revocable Trust. This identified both the owner and the debtor, but significantly, the trust document shows that the owner was the sole trustee. The only evidence presented shows that the owner deposited the funds in the bank account, with the exception of $8.90.

In short, the creditor failed to rebut the evidence establishing that the account, and the monies in it, belonged exclusively to the owner, not the debtor, and therefore was not subject to garnishment. The trial court erred in denying the motion to vacate the final judgment. We therefore reverse and remand the case to the trial court to vacate the final judgment in garnishment.

Reversed and remanded.

Gross and Damoorgian, JJ., concur.

      . The subject bank account is in the name of a Trust, for which the owner is the sole trustee. The term “owner” is used for ease of reference.


author: Gerber, J.

text:
    Amos BIENAIME, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-163
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]

      Jonathan R. Kaplan of Jonathan R. Kap-lan, LLC, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The defendant appeals from his convictions on Count 1, first degree murder with a firearm, and Count 2, burglary of an occupied dwelling while armed with a firearm. The defendant also appeals from his sentence on Count 2, a mandatory minimum twenty-five years in prison under section 775.087(2)(a), Florida Statutes (2013) (known as the 10-20-Life statute), on the ground that the indictment’s Count 2 failed to allege the defendant discharged a firearm causing death or great bodily harm.

We affirm without further discussion the defendant’s convictions on both counts. However, on the defendant’s appeal from his sentence on Count 2, the state properly concedes error. We write to explain the error.

The indictment’s Count 1 alleged, in pertinent part, that during the commission of first degree murder, “[the defendant] discharged a firearm or destructive device as defined in section 790.001, Florida Statutes, and, as a result of the discharge, death or great bodily harm was inflicted upon [the victim].... ” However, this phrase was missing from the indictment’s Count 2, which alleged, in pertinent part:

[The defendant] ... did knowingly enter or remain in a structure which is a dwelling, the property of [the victim], in which there was a human being at the time [the defendant] entered or remained in the dwelling, with intent to commit an offense therein, and was or became armed within the dwelling, with an explosive or dangerous weapon, and during the commission or attempt to commit any offense listed in Florida Statute 775.087(2)(a)l, [the defendant] actually possessed a firearm or destructive device as those terms are defined in section 790.001, Florida Statutes contrary to Florida Statutes 775.087(2)(a)l, 810.02(1), (2)(b) and (8). (1 DEG FEL, PBL).

Despite Count 2’s absence of the phrase alleging a firearm’s discharge causing death or great bodily harm, the verdict form’s section pertaining to Count 2 contained interrogatories regarding discharge and death or great bodily harm. The jury specifically found that the defendant, while committing burglary of an occupied dwelling, possessed a firearm, discharged a firearm, and caused great bodily harm to the victim.

Based on the jury’s findings on Count 2, the trial court sentenced the defendant to twenty-five years as a minimum mandatory sentence under the 10-20-Life statute, which states, in pertinent part:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.~q,, regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)3„ Fla. Stat. (2018).

The defendant failed to timely object to this sentence. However, after filing this appeal, the defendant filed a motion to correct sentencing error. The motion argued that the trial court could not sentence the defendant to the minimum mandatory twenty-five years in prison under the 10-20-Life statute because the indictment’s Count 2 failed to allege he discharged a firearm causing death or great bodily harm. Because the trial court did not enter an order on the motion within 60 days, the motion was deemed denied under Florida Rule of Criminal Procedure 3.800(b)(2)(B).

This appeal followed. Our review is de novo. See, e.g., Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005) (“The legality of a sentence is a question of law and is subject to de novo review.”).

To pursue an enhanced mandatory sentence as the 10-20-Life statute proscribes, the state must allege the grounds for enhancement in the charging document, and the jury must make factual findings regarding those grounds. Lane v. State, 996 So.2d 226, 227 (Fla. 4th DCA 2008). The state’s failure to allege grounds for enhancement in the charging document cannot be cured by a jury’s factual findings. Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002). The state also cannot rely on grounds alleged in one count to support an enhanced mandatory sentence on another count. Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999). Finally, if the state wishes to give notice of an enhancement by reference to a statute in the charging document, the state must refer to the specific subsection which subjects the defendant to the enhanced sentence. Inmon v. State, 932 So.2d 518, 520 (Fla. 4th DCA 2006).

Here, as the state properly concedes, the trial court, on Count 2, erred in sentencing the defendant to a minimum mandatory twenty-five years in prison. The indictment’s Count 2 did not allege that the defendant discharged a firearm causing death or great bodily harm. As stated above, neither the jury’s specific findings nor the indictment’s Count 1 can cure this flaw. Nor can the general reference to the 10-20-Life statute in the indictment’s Count 2, because it did not cite the specific subsection, 775.087(2)(a)3, which subjected the defendant to the enhanced sentence.

However, the indictment’s Count 2 alleged that the defendant possessed a firearm, and the jury made this specific finding. Thus, the defendant remains subject to a minimum mandatory ten years in prison under the 10-20-Life statute, which states, in pertinent part:

Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for [an enumerated crime, including burglary] ... and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years....

§ 775.087(2)(a)l, Fla. Stat. (2013).

Based on the foregoing, we reverse the defendant’s sentence on Count 2, and remand for the trial court to correct the defendant’s sentence on Count 2 so that it reflects a sentence of twenty-five years in prison with a ten-year minimum mandatory sentence.

Convictions affirmed; reversed for correction of sentence on Count 2 only.

Warner and Kuntz, JJ., concur.


text:
    Victor CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1738
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      Victor Castillo, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Victor Castillo petitions for a writ of habeas corpus, alleging several claims of ineffective assistance of appellate counsel with respect to his appeal of his racketeering and conspiracy to commit racketeering convictions. We find that appellate counsel was ineffective in failing to argue that the two predicate incidents proved by the State did not occur within five years of each other and therefore did not meet the definition of a “pattern of racketeering activity” under section 895.02(4), Florida Statutes (2007). We thus grant Castillo a new appeal, limited to this issue. We deny Castillo’s petition as to the remaining claims without comment.

Background

Castillo was convicted of racketeering and conspiracy to commit racketeering, arising out of activity related to a criminal gang known as SUR 13. To support the racketeering count, the State charged Castillo with five predicate incidents, but the jury found that he committed only two: (1) resisting arrest without violence, committed on July 9, 2000; and (2) possession of cocaine and battery, committed on May 27, 2006.

After the jury returned its verdict, defense counsel moved for arrest of judgment on the ground that the two predicate incidents proved by the State did not occur within the proper time period to constitute a pattern of racketeering activity under the statute. However, counsel misstated that the time period was three years and that the period “goes to the entire enterprise and not to the individual, citing Ariano v. State, 961 So.2d 366 (Fla. 4th DCA 2007). The trial court denied the motion. Castillo was sentenced to thirty years in prison for racketeering and fifteen years for conspiracy, to be served consecutively.

Appellate counsel did not challenge the denial of the motion for arrest of judgment on direct appeal. We affirmed. Castillo v. State, 170 So.3d 112 (Fla. 4th DCA 2015).

Analysis

Castillo timely filed this petition alleging ineffective assistance of appellate counsel. See Fla. R. App. P. 9.141(d)(5). Relief is warranted on such a petition where counsel’s omission “constitute[s] a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance” and the error “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000) (quoting Thompson v. State, 759 So.2d 650, 660 (Fla. 2000)). We find that burden to be met in this case.

To support the racketeering conviction alleged in this case, the State must prove (1) the defendant was associated with an enterprise, and (2) the defendant participated in the enterprise through a pattern of racketeering activity. See § 895.03(3), Fla. Stat. (2007). A “pattern of racketeering activity” is defined as personally engaging in at least two interrelated incidents of racketeering conduct, “provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.” § 895.02(4), Fla. Stat. (emphasis added); see also de la Osa v. State, 158 So.3d 712, 725-28 (Fla. 4th DCA 2015). Here, the State proved that Castillo engaged in two interrelated incidents of racketeering conduct, but they occurred more than five years apart, on July 9, 2000, and May 27, 2006.

Conclusion

As set forth above, appellate counsel was ineffective in failing to argue that the trial court erred in denying the motion for arrest, of judgment as to the racketeering conviction, and we thus grant a new appeal. Said appeal is to be limited to this issue.

This opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this Court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this Court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

Petition granted.

Damoorgian, Levine and Forst, JJ., concur.

      . Under Florida law, in contrast to federal law, multiple crimes committed at the same time qualify as only one predicate incident. State v. Russo, 493 So.2d 504, 505 (Fla. 4th DCA 1986); see also State v. Lucas, 600 So.2d 1093, 1095-96 (Fla. 1992) (recognizing the Russo holding but distinguishing its applicability to the specific facts presented).

      . We reject the State’s argument that the error was not preserved for appeal.


text:
    Jason K. DYKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1170
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Jason Dykes, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed without prejudice for defendant to refile the Rule 3.800 motion with supporting documents.

May, Gerber and Klingensmith, JJ., concur.


text:
    Jesse Lewis MCINERNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1527
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      Carey Haughwout, Public Defender, and Zainabu Rumala, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his sentence for DUI manslaughter. He argues the trial court erred in admitting an eyewitness’s statement over a hearsay objection during the sentencing hearing. He also argues the trial court erred in ordering the amount of restitution after the notice of appeal was filed. And lastly, he argues the trial court denied him due process in denying his motion to downwardly depart. We affirm the admission of hearsay and the trial court’s denial of the downward departure motion, but reverse on the restitution issue and remand for a new hearing.

The State charged the defendant with DUI manslaughter, attempt to leave the scene of an accident resulting in death, and vehicular homicide. The defendant entered a plea of nolo contendere to DUI manslaughter; the State nolle prossed the other charges.-

At the sentencing hearing, the defendant and a homicide investigator testified, and the State admitted the statement of an eyewitness. The defendant’s version of what happened conflicted with the statement of the eyewitness and the investigator’s testimony.

The defendant testified that another driver had exhibited road rage when he began honking his horn at the defendant while racing behind and beside him in another vehicle. The defendant looked in his rear view mirror to see where the other driver was, and when he looked up, the victim was right in front of him. He did not have time to stop. He testified that he attempted to perform CPR on the victim, but when he realized she had died, he attempted to commit suicide.

When the State offered the eyewitness’s statement, defense counsel lodged a hearsay objection, which the trial court overruled. The eyewitness attested that he saw the defendant “passed out” on the steering wheel at a traffic light. When the eyewitness honked his horn, the defendant took off. The eyewitness followed the defendant at speeds of 80 to 90 miles per hour. The defendant then turned off his vehicle lights and soon after hit the victim. The defendant attempted to leave the scene, but the eyewitness confiscated his keys and performed CPR on the victim.

The traffic homicide investigator testified that the defendant was traveling between 51 and 60 miles per hour in a 25 mile-per-hour residential speed zone. The defendant was traveling north in the southbound lane at the time of the accident. He found the defendant lethargic and appearing incoherent at the scene.

The State requested a fifteen year prison sentence. The defendant requested a downward departure followed by probation. The trial court denied the downward departure motion, and sentenced the defendant to fifteen years in prison. The court ordered restitution, but reserved jurisdiction to determine the amount. After the defendant filed his notice of appeal, the trial court entered a restitution order.

On appeal, the defendant argues the trial court erred in admitting the eyewitness’s statement because hearsay is inadmissible in non-capital sentencing proceedings. The State responds that hearsay is admissible at sentencing hearings, and any error was harmless.

The admissibility of hearsay in non-capital sentencing hearings, absent a request for a sentence enhancement, does not appear to have been addressed until now.

The capital sentencing statute speaks directly to the issue. See § 921.141(1), Fla. Stat. (2015). It specifically provides that in a capital sentencing proceeding, “[a]ny such evidence that the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” Id. Similarly, “cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a ‘deferred sentencing proceeding.’ ” State v. Davis, 133 So.3d 1101, 1105 n.6 (Fla. 3d DCA 2014) (citing Peters v. State, 984 So.2d 1227, 1230 (Fla. 2008)); see also Brown v. State, 18 So.3d 723, 723-24 (Fla. 4th DCA 2009).

Yet, in cases where the State bore the burden to prove the prerequisites for enhanced sentencing in non-capital cases, hearsay has been held inadmissible absent an exception. See, e.g., Yisrael v. State, 993 So.2d 952 (Fla. 2008) (holding that department of corrections release-date letters are inadmissible to establish habitual violent felony offender status); King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991) (providing that a department of corrections printout is inadmissible to prove habitual felony offender status).

Our supreme court has further held “that where a defendant disputes the truth of hearsay statements contained in a pre-sentence report (and those hearsay statements are material to the court’s required findings for an enhanced sentence), the State must produce evidence to corroborate those hearsay statements.” Davis, 133 So.3d at 1105 n.6 (citing Eutsey v. State, 383 So.2d 219, 225 (Fla. 1980)). Indeed, we have held that absent an attack on the truth of hearsay statements or documents relied upon at sentencing, corroboration is not required. See Lewis v. State, 514 So.2d 389, 389 (Fla. 4th DCA 1987).

Rule 3.720(b) of the Florida Rules of Criminal Procedure provides some guidance. It requires the court to “entertain submissions and evidence by the parties that are relevant to the sentence.” Here, the eyewitness’s statement was certainly relevant to the court’s imposition of a sentence.

We can find no prohibition to admitting the hearsay statement in this non-capital sentencing hearing. In fact, our sentencing rule contemplates the submission of such relevant evidence as the eyewitness’s statement. The defendant was able to provide his own statement concerning the accident; a statement contradicting that of the eyewitness. The trial court properly considered the defendant’s testimony, the eyewitness’s statement, and the testimony of the homicide investigator.

We now hold that hearsay is admissible in non-capital sentencing hearings. We affirm on this issue.

In his second issue, the defendant argues the trial court acted without jurisdiction when it held a hearing to determine the restitution amount after the defendant filed his notice of appeal. We agree and reverse on this issue.

If a trial court reserves jurisdiction at sentencing, it may determine the amount of restitution even years after the date of sentencing. White v. State, 190 So.3d 99, 101 (Fla. 4th DCA 2015). But, “[wjhere a trial court reserves jurisdiction to determine a restitution amount at a later time and the defendant files a notice of appeal in the interim, the trial court is divested of jurisdiction over the issue while the appeal is pending.” Id. (citing Marro v. State, 803 So.2d 906, 907 (Fla. 4th DCA 2002)).

Here, the trial court ordered restitution and reserved jurisdiction to determine the amount. But, it waited until after the defendant filed his notice of appeal to hold the hearing. By that time, the trial court had been divested of jurisdiction. We therefore reverse and remand the case to the trial court, which may impose restitution following a new hearing on the amount.

We find no merit in the third issue raised concerning the denial of the defendant’s motion for a downward departure.

Affirmed in part, reversed in part, and remanded.

Gross and Damoorgian, JJ., concur.

      . But, hearsay at a probation revocation hearing "must be supported by non-hearsay evidence for a court to revoke probation.” Whitehead v. State, 22 So.3d 846, 848 (Fla. 4th DCA 2009).


author: Kuntz, J.

text:
    J.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4415
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

J.G. appeals the court’s judgment and conviction for misdemeanor battery and resisting arrest without violence. We affirm the conviction and write to address his argument that the trial court erred in refusing to allow the use of an audio recorded deposition to refresh a witness’s recollection. We agree with J.G. that the court erred. However, because the error was harmless, we affirm.

At trial, the arresting officer testified that J.G. knew she was an officer prior to the incident in question. Counsel for J.G. sought to refresh the officer’s recollection, or impeach the officer’s testimony, with a prior inconsistent statement given at a pre-trial deposition. The deposition was not transcribed but was recorded. The court refused to allow impeachment through the use of an audio tape, stating:

I don’t know of any rule which provides for me to do it this way. It’s very difficult being that the [pjrosecutor can’t look at the context of the time the question, the witness can’t look at the context of the time of the question if you’re playing just an excerpt of it .... I’m not going to allow it to be done outside of my presence and I’m not going to allow the audio deposition to be used in excerpts.

While the court was correct that there is no specific rule which provides for refreshing a witness’s recollection in the manner sought, the rules are broadly written and allow for a witness’s recollection to be refreshed through a “writing or other item.” § 90.613, Fla. Stat. (2015). Further, while any party may use “statements” of a witness to impeach the witness, the impeachment statute is silent as to the form of the statements permitted. See § 90.608(1), Fla. Stat. (2015).

We have previously discussed the use of an audio tape to refresh recollection. Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978). In Hill, we reversed a conviction based on the use of an audio tape to refresh a witness’s recollection. However, in that case, the audio tape was played in the presence of the jury, the witness denied making the statements, and the State relied on the statements in closing argument. We held that “prejudicial error may be committed when the contents of a statement are introduced as evidence where a court witness stated that he did not recall making the statement.” Id. at 116. We concluded by noting that “many courts have indicated that the playing of such tapes can be permitted to refresh a witness’ memory but that such procedure should be utilized outside the presence of the jury.” Id. at 117 (citing United States v. McKeever, 271 F.2d 669 (2d Cir. 1959); State v. Gonya, 107 R.I. 594, 268 A.2d 729 (1970); Breeding v. Reed, 253 Iowa 129, 110 N.W.2d 552 (1961)); see also Kimble v. State, 537 So.2d 1094, 1096 (Fla. 2d DCA 1989) (citing Williams v. State, 472 So.2d 1350, 1352 (Fla. 2d DCA 1985)) (“[Tjhe Florida Evidence Code does not require that a witness’s prior inconsistent statement be reduced to writing in order to impeach the witness under section 90.608(l)(a).”).

While we held in Hill that an audio played to refresh a witness’s recollection should be played outside the presence of the jury, the presiding judge in a bench trial need not leave the bench as suggested by counsel for J.G. below. A “judge as finder of fact is presumed to have disregarded any inadmissible evidence or improper argument.” Guzman v. State, 868 So.2d 498, 510-11 (Fla. 2003) (citing First Atl. Nat'l Bank of Daytona Beach v. Cobbett, 82 So.2d 870, 871 (Fla. 1955)).

Ultimately, the refusal to allow J.G. to refresh the officer’s recollection with the audio tape statement was harmless. First, the officer later clarified that she was uncertain as to whether or not J.G. knew she was an officer at the time of the incident in question. Second, the court dismissed the charge that J.G. knowingly struck a law enforcement officer. The testimony as to J.G.’s knowledge regarding the officer was not relevant to the charges for which he was ultimately convicted and the court’s error in refusing J.G. the opportunity to refresh the officer’s recollection was harmless. Therefore, the judgment is affirmed.

Affirmed.

Warner and Gerber, JJ., concur.


author: Warner, J.

text:
    Lemen MCCRAY, Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., d/b/a AT & T Corp., a Florida Corporation, Mastec, Inc., a Florida Corporation, and Woodah Enterprises, Inc., a Florida Corporation, Appellees.
    No. 4D16-1073
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      Ron Renzy of Wallberg & Renzy, P.A., Coral Springs, for appellant.
    Warren B. Kwavnick and Kelly A. Lena-han of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale for appellee Woo-dah Enterprises, Inc.
   Warner, J.

In this personal injury case, appellant/plaintiff Lemen McCray appeals a final judgment of no liability on behalf of the defendants. He contends that the trial court erred in denying his motion to amend to add an additional defendant just prior to trial. The proposed defendant was a third-party defendant until the third-party plaintiff voluntarily dismissed its complaint. The trial court determined that the proposed defendant had been dismissed, and that the statute of limitations had ran, barring McCray’s cause of action. We affirm, concluding that because the voluntary dismissal of the third-party complaint divested the court of in personam jurisdiction of the proposed defendant, the proposed defendant was no longer a party in the proceedings. As the statute of limitations had ran as to the proposed defendant, the court did not abuse its discretion in denying the motion to amend.

This appeal arises from a personal injury lawsuit filed by McCray after he tripped and fell in a hole created while work was being performed on his property. McCray filed a negligence action against appellees BellSouth Telecommunications, Inc., d/b/a AT & T Florida, and Mastec, Inc. Mastec then filed a third-party complaint against Woodah Enterprises, a subcontractor on the project on McCray’s property. McCray did not amend his complaint to allege any cause of action against Woodah.

After several years of litigation, on the day before trial was scheduled, Mastec voluntarily dismissed its third-party complaint against Woodah “with prejudice.” Later that same day, McCray moved to amend his complaint to include Woodah as a party defendant. The trial court denied the motion to amend, finding that not only had the third-party complaint been dismissed, but the statute of limitations had expired as to any claim against Woodah. McCray moved for reconsideration, arguing that the statute of limitations did not preclude his claims against Woodah because the amended complaint would relate back to the filing of.the third-party complaint.

The case proceeded to a jury trial against BellSouth and Mastec, both of which were exonerated by the jury. McCray moved for a new trial, again arguing that he should have been allowed to amend his complaint to add Woodah as a defendant. The court denied the motion for new trial and entered a final judgment in favor of BellSouth and Mastec. McCray now appeals from that final judgment.

“The standard of review applicable to a motion to amend a complaint is abuse of discretion.” Vaughn v. Boerckel, 20 So.3d 443, 445 (Fla. 4th DCA 2009). “Refusal to allow an amendment is an abuse of the trial court’s discretion ‘unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.’ ” Id. (quoting Dieudonne v. Publix Super Markets, Inc., 994 So.2d 505, 507 (Fla. 3d DCA 2008)).

In this case, the amendment would be futile because of the bar of the statute of limitations. The party sought to be added, Woodah, had already been voluntarily dismissed as a third-party defendant. The voluntary dismissal of the action divested the trial court of jurisdiction over the entire third-party complaint and thus over Woodah. See Federal Ins. Co. v. Fatolitis, 478 So.2d 106 (Fla. 2d DCA 1985). “[T]he plaintiff may refile the action against the voluntarily dismissed party, if not otherwise time barred, and regain in personam jurisdiction over that once dropped party by service of process.” Biggers v. Town of Davie, 674 So.2d 938, 939 (Fla. 4th DCA 1996) (emphasis supplied). Thus, because the statute of limitations had run against Woodah, the trial court did not abuse its discretion in denying the motion to amend to add Woodah, over which personal jurisdiction had been lost.

Caduceus Properties, LLC v. Graney, 137 So.3d 987 (Fla. 2014), on which McCray relies, is consistent with our analysis. In Caduceus, the owner of a building sued its HVAC contractor. Id. at 990. The contractor initiated a third-party action against two subcontractors. Id. After the statute of limitations had run on its claim, the building owner sought to add the two subcontractors to its complaint, which the trial court granted. Id. The third-party complaint was dismissed, however, after the subcontractors were named party defendants. Id. at 990 n.2. The contractor appealed, and the First District reversed, holding that the statute, of limitations barred the claim. Id. at 990. On review to the supreme court, the court held that “an amended complaint filed after the statute of limitations has expired, naming a party who had previously been made a third-party defendant as a party defendant, relates back under rule 1.190(c) to the filing of the third-party complaint,” so long as the third-party complaint was filed within the statute of limitations and the amended complaint arose from the same conduct or transaction as the third-party complaint. Id. at 995. Significantly, however, the court stated that the third-party defendant needs to be a party to the lawsuit when the amended complaint is filed:

Therefore, in a case in which the third-party complaint puts the third-party defendant on notice of the conduct, transaction, or occurrence from which the plaintiffs claims arose, and the third-party defendant is already a party to the lawsuit when the plaintiff seeks to name the third-party defendant as a party defendant, the plaintiffs amended complaint naming the third-party defendant as a party defendant should relate back to the timely filed third-party complaint.
Our holding here also does not disturb the precedent that, generally, the relation-back doctrine does not apply when an amendment seeks to bring in an entirely new party defendant to the suit after the statute of limitations period has expired. See, e.g., Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So.2d 451, 453 (Fla. 4th DCA 1999); Kozich v. Shahady, 702 So.2d 1289, 1291 (Fla. 4th DCA 1997). In this case, the plaintiffs did not seek to bring in an entirely new party defendant who previously had no connection to the litigation. Rather, the third-party defendants were impleaded by the original defendant in 2007, well within the statute of limitations period, and %oere actively involved in the litigation at the time the plaintiffs sought to name them as party defendants.

Id. at 993-94 (emphasis supplied) (footnote omitted). As Woodah was not a party to the lawsuit because of the voluntary dismissal of the third-party complaint before the motion to amend was filed, Caduceus fully supports—in fact requires—the denial of the motion to amend.

For the foregoing reasons, we affirm the final judgment.

Gross and May, JJ., concur.


text:
    Daniel HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-7
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

We reverse a conviction for aggravated battery because the court abused its discretion in admitting evidence of an uncharged collateral crime.

The conviction stemmed from a fight over a car repair. Appellant contended that he and the victim had agreed upon a price for the repair. A dispute arose. The victim stopped working on the car until he was paid more money. The disagreement took a violent turn. The victim was bringing furniture home in a U-Haul when appellant approached him from the street. Although accounts of the incident varied, appellant was charged with stabbing the victim in the leg.

The issue central to this appeal involved appellant’s confrontation with the victim’s wife. The state contended that after the stabbing, the victim’s wife challenged appellant and he punched her in the face, knocking her to the ground, where she hit her head on the sidewalk. The state did not charge appellant with a crime related to this incident.

Appellant objected to evidence of the incident with the victim’s wife prior to trial. The state argued that evidence of appellant punching the wife was inextricably intertwined with the stabbing and showed appellant’s “demeanor, his attitude, the state of mind.” The trial court overruled the objection.

Five witnesses, including appellant, testified about the altercation with the wife.

The victim testified that he was inside the moving truck when he realized he had been stabbed. His wife was across the street and did not witness the incident. The victim jumped out of the truck and yelled to his wife that he had been cut. The victim then panicked and left the area. When he returned, he saw his wife confronting appellant and then “pick[] up a bottle to defend herself’ and approach appellant. Words were exchanged. Appellant “raised up” at the wife, who “tried to protect herself and then he punched her.” The wife gave similar testimony, saying she swung a bottle at appellant after he “got in [her] face,” just before he punched her in the face with a closed fist.

An employee from a nearby grocery store saw appellant approach the store, with the wife following behind. They were arguing and the wife suddenly picked up a large beer bottle and held it at her side. The two argued for several minutes. There was finger pointing and the wife touched appellant a few times. Appellant told her not to touch him. After appellant turned to walk away, the wife touched him again; appellant “turned around and punched the lady.”

Appellant’s version of the story was that the wife drew back the bottle and he punched her to make sure that she did not hit him.

The altercation between appellant and the victim’s wife was not inextricably intertwined with the earlier stabbing. “[E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged” is admissible under section 90.402, Florida Statutes (2015), because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.” Griffin v. State, 639 So.2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). “Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crinae(s) charged; (3) establish the entire context out of which the charged crime(s) arose[;] or (4) adequately describe the events leading up to the charged crime(s).” McGee v. State, 19 So.3d 1074, 1078 (Fla. 4th DCA 2009) (quoting Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006)).

Appellant’s altercation with the wife was not “inextricably intertwined” with the stabbing of the victim, as that concept has been delineated in McGee and Dorsett. It was not necessary to tell the full story of the stabbing, it did not establish the context out of which the stabbing arose, and it did not describe the events leading up to the stabbing. The punching incident occurred after the stabbing and was instigated by the conduct of a different victim. Given the number of witnesses, the punching incident became a feature of the trial. The trial court.abused its discretion in admitting the evidence.

We do not find this error to be harmless. Without the testimony of the punching incident, this case was a credibility contest between appellant and the victim. Evidence that appellant punched the wife could only have damaged his credibility and may have influenced his decision to take the witness stand.

Because we are reversing for a new trial, we will not dwell on other issues raised except to note that the jury selection was tainted by the trial court’s failure to follow the procedure outlined in Melbourne v. State, 679 So.2d 759 (Fla. 1996), and that appellant should not have been resentenced when he was not present in court.

Reversed and remanded for a new trial.

May and Damoorgian, JJ., concur.


text:
    Stephen BERNARD, Appellant, v. Angeline BERNARD, Appellee.
    No. 4D16-4132
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]
    Steven D. Miller, Plantation, for appellant.
    Jeffrey A. Miller of Miller Law Associates, Boca Raton, for appellee.
   ON CONFESSION OF ERROR

May, J.

The former husband appeals a contempt order entered for his failure to comply with an order requiring him to transfer his 401k to his former wife and to pay her support. In lieu of compliance, the former husband withdrew the 401k money for himself, gave none to his former wife, and paid none of his support obligation. The trial court found him in contempt, and ordered the husband to pay a specified amount within 30 days or the court would issue a writ of arrest and commitment to be followed by 179 days of incarceration.

To her credit, the former wife confesses error. The trial court relied solely on the statutory presumption of ability to pay and the former husband’s failure to rebut that presumption. The court did not make an affirmative finding that the former husband had the ability to pay. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985) (“[IJncarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt.”).

We accept the confession of error and reverse only the incarceration sanction imposed. We remand the case for further proceedings consistent with this opinion.

Reversed and remanded for farther proceedings consistent with this opinion.

Ciklin, C.J., and Warner, J., concur.


text:
    COSTCO WHOLESALE CORPORATION, Appellant, v. Elaine LLANIO-GONZALEZ and Luis Gonzalez, Appellees.
    No. 4D15-4869
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]
    David F, Cooney and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellant.
    William M. Winkel, West Palm Beach, for appellees.
   Gerber, J.

The defendant appeals from the circuit court’s order denying the defendant's motion for attorney’s fees. The defendant argues the court erred in finding that the defendant’s proposals for settlement were ambiguous and unenforceable. We agree with the defendant and reverse.

Procedural History

The plaintiffs sued the defendant for negligence arising from a slip and fall. The defendant served one proposal for settlement upon the plaintiff wife who sued for her injuries in the slip and fall, and the other proposal upon the plaintiff husband who sued for the loss of the wife’s consortium. The proposals were identical, except for the amounts which the defendant offered to each plaintiff.

The proposals’ relevant paragraphs stated:

1. The Defendant ... hereby proposes to offer [amount], inclusive of fees and costs, in settlement of all the claims contained in the above-styled matter, and any and all potential claims the Plaintiff ... could make against the Defendant arising out of the same facts and circumstances referred to in the above-styled matter.
2. The relevant conditions to this proposal are that Plaintiff ... will execute a general release, releasing the Defendant ... from any and all claims raised or potentially raised against the Defendant arising out of the incident referred to in the above-styled matter (see attached proposed Release); Plaintiffs counsel will execute a Joint Stipulation for and Dismissal with Prejudice. Upon receipt of the signed Release and Stipulation for Dismissal, Defendant shall forward the settlement check to Plaintiff’s counsel. After Defendant has forwarded the settlement check to Plaintiffs counsel, the Stipulation and Dismissal shall be sent to the Court along with an Order of Dismissal for the Court to execute.
3. Defendant and Plaintiff will bear their own costs and attorney’s fees. The amount being offered does not specifically include attorneys’ fees because attorneys’ fees are not part of the claim in this case.
4. The figure against-which the Defendant intends to measure-this proposal for settlement is the amount of the “judgment obtained,” as this term is defined in Section 768.79, Florida Statutes.
5. This figure does not include punitive damages as there is no claim for punitive damages.
6. This proposal is intended to terminate all claims and disputes and obviate the need for further intervention of the judicial process.

The release mentioned in paragraph 2 was attached to each proposal. The release referred to the defendant as “Second Parties” and further stated, in pertinent part:

When used with reference to a corporation, the term “Second Parties” shall include both the singular and the plural, it shall include any and all related, associated or affiliated companies, any and all related, associated or affiliated parent companies, corporations, partnerships, sole proprietorships, business entities, representatives, successors, insurers, attorneys, third party administrators, privies and assigns, together with each of their respective past, present and future officers, directors, shareholders, servants, agents, employees, representatives, partners, trustees, attorneys, insurers, predecessors, successors, privies, assigns, parent corporations, subsidiaries and any and all other related, affiliated or associated persons, partnerships, corporations, firms, or business entities of any type.

The release proceeded to state that the plaintiffs, by signing the release, agreed to:

HEREBY remise, release, acquit, satisfy, and forever discharge the said Second Parties, of and from all, and. all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said First Party ever had, now has, or which any personal representative, successor, heir or assign of said First Party, hereafter can, shall or may have, against said Second Parties, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the end of these presents.
This release specifically covers, but is not limited to, any and all claims for personal injuries, pain and suffering, hospitals, doctors and nurses and all medical expenses and claims for lost wages and future lost wages, and extra-contractual damages as a result of the incident and matters set forth in that certain lawsuit referred to as [case caption].

The plaintiffs did not accept the defendant’s proposals for settlement. The defendant ultimately filed a motion for summary judgment. The court granted the defendant’s motion.

The defendant then filed a motion to tax costs and attorney’s fees pursuant to its proposals for settlement. The plaintiffs filed a response, arguing: (1)'" the defendant did not make the proposals in “good faith”; (2) the proposals were “improper”; and (3) the defendant did not strictly comply with Florida Rule of Civil Procedure 1.442 because the defendant “did not properly state whether the proposal includes attorneys’ fees.”

The court granted the defendant’s motion to tax costs. However, the court denied the defendant’s motion for attorney’s fees on grounds not raised in the plaintiffs response. The court found:

[E]ach of Defendant’s Proposals for Settlements [are] ambiguous and unenforceable as contended by Plaintiffs in their Response, because the Proposals for Settlement contain narrow language offering to release only the Defendant ... and release only claims arising out of the facts and circumstances referred to in this lawsuit, while the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant] and releasing claims or potential claims more than and broader than only the claims related to the facts and circumstances in this lawsuit.

This appeal followed. The defendant argues the court erred in finding that the defendant’s proposals for settlement were ambiguous and unenforceable. More specifically, the defendant argues “well-settled Florida law says that the use of a standard general release as a condition of a proposal for settlement is proper and does not invalidate the proposal and because on-point case law says the language in [the defendant’s] proposed releases is not ambiguous.”

Analysis

Our review of this argument is de novo. See Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So.3d 391, 393-94 (Fla. 2016) (“The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.”) (citation omitted). We agree with the defendant’s argument.

To the extent the court found “the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant],” such a finding is inconsistent with our precedent. In Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003), the defendant attached to the settlement proposal a general release, which defined the “First Party” and “Second Party” broadly, as including:

[S]ingular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires.

Id. at 508. We found the broad language in the general release, “even though expansive, is typical of other general releases and is clear and unambiguous.” Id. at 509. Similarly, in Alamo Financing, L.P. v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 2013), we found a release provision including the defendant’s “parent corporations, subsidiaries, officers, directors, and employees” was “unambiguous standard release language that did not render the proposal invalid.” Id. at 631. Here, although the releases’ description of the “Second Parties” is more expansive than the descriptions in Bowman or Alamo, the effect is the same. The “Second Parties” definition is “typical of other general releases and is clear and unambiguous.” Bowman, 853 So.2d at 509.

To the extent the court found “the proposed Releases attached to the Proposals for Settlement contain broader language releasing ... claims more than and broader than only the claims related to the facts and circumstances in this lawsuit,” such a finding also is inconsistent with precedent. The releases stated the plaintiffs would agree to release the defendant “for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.” However, “[fit is well-established that this type of all-inclusive language will bar all claims which have matured prior to executing the release.” Plumpton v. Cont’l Acreage Dev. Co., Inc., 830 So.2d 208, 210 (Fla. 5th DCA 2002); see also Bowman, 853 So.2d at 508-09 (language releasing defendant from cause of action “from the beginning of the world to the day of these presents” did not bar any claims the plaintiff may have against the defendant after the release’s execution date).

Our conclusion in this case is consistent with our supreme court’s precedent. “[Rule 1.442] does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006). For that reason, courts are discouraged from “nitpicking” settlement proposals for ambiguities, unless the asserted ambiguity could “reasonably affect the offeree’s decision” on whether to accept the settlement proposal. Anderson v. Hilton Hotels Corp., 202 So.3d 846, 853 (Fla. 2016) (citation and internal quotation marks omitted). Here, we conclude the proposals for settlement and accompanying releases were sufficiently clear and definite to allow the plaintiffs to make an informed decision on whether to accept the proposals.

Based on the foregoing, we reverse the circuit court’s order denying the defendant’s motion for attorney’s fees. We remand for the court to enter an order granting the defendant’s motion for attorney’s fees and setting an evidentiary hearing to determine the amount of attorney’s fees which the defendant is entitled to recover from the plaintiffs.

Reversed and remanded for proceedings consistent with this opinion.

Warner and Kuntz, JJ., concur.