author: Kuntz, J. Warner, J.

text:
    Matthew FETZNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2572
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The defendant appeals his convictions of burglary of an occupied dwelling, grand theft, auto, and resisting an officer without violence. The State cross-appeals the denial of its motion for supplemental costs of prosecution. We write to explain our affir-mance of: (A) the denial of the defendant’s motions to disqualify the trial court, and (B) the denial of the defendant’s motion for mistrial. We affirm without further comment the defendant’s other issues on appeal, as well as the State’s cross-appeal.

A. The Motions to Disqualify

The defendant first argues that the trial court erred when it denied his motions to disqualify the presiding judge which were based upon the judge’s demeanor toward defense counsel.

Our review is de novo, limited to a determination as to whether the motion to disqualify was legally sufficient as a matter of law. Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). The sufficiency of a motion to disqualify is governed by section 38.10, Florida Statutes (2015), and “to decide whether the motion is legally sufficient, a determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Pugliese v. Deluca, 207 So.3d 974, 976 (Fla. 4th DCA 2016) (quoting MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334-35 (Fla. 1990)). Further, when reviewing the facts alleged, we accept the movant’s sworn statements as true. Kersaint v. State, 15 So.3d 41, 41-42 (Fla. 3d DCA 2009).

The defendant’s first motion to disqualify was facially insufficient, as it was not sworn nor supported by an affidavit. While he correctly notes that an affidavit was filed one day after he filed the first motion, the court denied the first motion before the affidavit was filed. Therefore, the first motion was facially deficient and correctly denied.

His second motion to disqualify was similar to his first, although it was not identical and did not include all of the facts alleged in the first motion. His second motion, filed seven days after the first, was supported by an affidavit. In the affidavit, which was nearly identical to the contents of the motion, the defendant stated that the trial court had shown clear disregard for his attorneys. The next twelve paragraphs of his twenty-five paragraph affidavit relate to scheduling concerns. The defendant stated that the trial court demonstrated its contempt for his attorneys by allowing the State to delay calling two witnesses until the following week. The defendant argued this delay demonstrated the court’s hostility toward his attorneys because the court had previously assured his counsel that the trial would not be extended due to counsel’s pre-planned vacation.

Next, the defendant stated that the court “threatened” one of his attorneys at sidebar and stated that she would make that attorney sit down if the attorney continued to interrupt her. The defendant also asserted that the court “scolded” his attorneys and told them not to interrupt her, impeded his attorneys from making a record, and showed clear favoritism to the attorneys for the State.

We recognize that in other cases we have found this same judge’s treatment of defendants and defense counsel sufficient to warrant disqualification. See Montgomery v. State, 150 So.3d 1231 (Fla. 4th DCA 2014); Arend v. State, 149 So.3d 126 (Fla. 4th DCA 2014). We also note there were factual allegations in the defendant’s first motion, and in the record itself, indicating that some of the same conduct warranting disqualification in Arend and Montgomery may have been present in this case. However, our review is limited to the sworn facts in the defendant’s second motion. Gates v. State, 784 So.2d 1235, 1237 (Fla. 2d DCA 2001) (“This determination is to be based on the allegations only .... ”).

The facts alleged in the second motion and supporting affidavit were not sufficient to warrant disqualification. We categorize the defendant’s complaints into two related groups: the first relating to scheduling, and the second relating to the judge’s treatment of his attorneys. Regarding scheduling, the defendant argues that the court orally assured his attorneys before trial that the trial would conclude before April 10, 2015. However, during trial, two of the State’s witnesses were unavailable and the court allowed them to be called the following week on Monday, April 13, 2015. According to the defendant, this was a demonstration of the court’s “clear favoritism to the State.”

We agree that courts must be reasonable with scheduling and should consider the impact scheduling decisions have on the parties and their counsel. However, we disagree that the court’s decision in this case justified disqualification. Allowing the witnesses to testify the following week, as opposed to delaying the trial for weeks or months into the future, might be inconvenient to defense counsel, but is not inconsiderate to the defendant whose liberty is at stake. That is especially so in this case, where counsel failed to seek or obtain a written order before trial excusing herself during the period of the planned vacation.

As the Third District has concluded, a “trial court should not be disqualified for attempting to keep the case moving,” Cooper Tire & Rubber Co. v. Rodriguez, 997 So.2d 1124, 1126 (Fla. 3d DCA 2008), by offering other days for a proceeding. In Rodriguez, the court stated that “the only bias or prejudice exhibited on this record is one in favor of dispatch and against further delay—not for or against a party, counsel, or particular outcome.” Id. Regarding the court’s decision to allow the two witnesses to testify the following week, the same is true in this case.

The defendant’s other grouping in support of disqualification, the court’s treatment of his attorneys during trial, is also insufficient. This grouping includes allegations that the judge raised her voice at defense counsel, scolded defense counsel, pointed a finger at defense counsel in clear view of the jury, and threatened one of the defense attorneys at a sidebar that the attorney would be required to remain seated if she continued to speak on the record. The second motion and affidavit do not indicate when or why the judge engaged in this conduct or whether the State’s attorney was treated in a similar fashion. Without any context, we are unable to conclude that the conduct of the judge would cause a reasonably prudent person in the defendant’s position to fear that he could not get a fair and impartial trial.

Our conclusion is supported by Ellis v. Henning, 678 So.2d 825 (Fla. 4th DCA 1996), where the affidavit in support of disqualification alleged:

[T]he trial judge treated plaintiffs’ counsel with “disdain and obvious animosity” and addressed counsel in a “hostile, angry manner and in a tone, expression, and body language that evinced anger, hostility, and personal contempt.” The affidavits further allege that -the trial judge accused the law firm of “playing word games,” and of “making misrepresentations ‘every time you come in here,’ and .... trying to ‘turn this Court inside out.’ ”

Id. at 827. In Ellis, we held that “[a] trial judge’s expression of dissatisfaction with counsel or a client’s behavior alone does not give rise to a reasonable belief that the trial judge is biased- and the client cannot receive a fair trial.” Id. (citing Oates v. State, 619 So.2d 23 (Fla. 4th DCA 1993); Nassetta v. Kaplan, 557 So.2d 919 (Fla. 4th DCA 1990)). While we have a transcript in this case, which we did not have in Ellis, we are still unable to determine the exact context of the comments and non-verbal signals, nor whether the judge treated counsel for the State in the same manner.

The defendant’s allegation that the judge threatened to require one of his attorneys to sit at counsel table for the remainder of the trial if she continued to interrupt is also insufficient. These allegations do not show prejudice. Rather, as alleged, the conduct reveals the judge’s efforts to control her courtroom. Braddy v. State, 111 So.3d 810 (Fla. 2012) (determining, where the defendant was disruptive and continually tried to interrupt, the' judge’s stern comments and threat to revoke his right to proceed pro se did not require disqualification; rather, they were simply the judge’s efforts to control the courtroom); State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433, 438-39 (1948) (“A lawyer cannot disagree with the court and deliberately provoke an incident rendering the court disqualified to proceed further.”); Birotte v. State, 795 So.2d 112, 113 (Fla. 4th DCA 2001) (“[A] judge’s expression of dissatisfaction with counsel’s unprofessional behavior does not give rise to a reasonable fear of bias or prejudice.’’). A judge is not required to allow a lawyer to interrupt .proceedings. Letterese v. Brody, 985 So.2d 597, 599 (Fla. 4th DCA 2008). And, in the end, “a judge must be permitted to ‘judge.’ ” Id.

We do not condone the mistreatment of counsel or parties, and the record does include some conduct by the' trial court which causes concern. Howevér, as' our review is limited to the sufficiency of the second motion to disqualify, the facts on the face of the motion and supporting affidavit were insufficient to support disqualification.

B. The Motion for Mistrial

We also address the defendant’s argument that the court erred when it denied his motion for mistrial after a trial witness testified that the victim’s child provided a description of the perpetrator.

During the cross-examination of one of the arresting officers, counsel established that the victim gave the officer information about what happened on the day in question. In response to repeated questions asking whether the victim provided a description of the perpetrator, the officer testified that the victim’s non-testifying child gave the description.

Counsel objected and, at sidebar, stated that the officers had been instructed not to refer to the non-testifying minor child. Later, the court ruled that the testimony was improper and that defense counsel did not “open the door.” The court told the parties that it would give a curative instruction. The defendant’s counsel moved for a mistrial, stating the officer testified that the child provided an identification, and arguing that a curative instruction would not “unring this bell.” The court deferred ruling on the mistrial motion and, by that time; the jury had been sent home and was not scheduled to return until after a long Easter weekend.

When court reconvened the following week, the judge denied the motion for mistrial, and gave a curative instruction. Thus, the officer made an improper comment on Wednesday, April 1, 2015, and the curative instruction was not given until Monday, April 6, 2016.

We review the trial court’s denial of the motion for a mistrial for abuse of discretion. Shaffer v. State, 619 So.2d 409, 410 (Fla. 4th DCA 1993).

It is typically error to delay giving a curative instruction. Melehan v. State, 126 So.3d 1118, 1126-27 (Fla. 4th DCA 2012). However, the facts in Melehan were quite different. There, the trial court initially admitted deposition testimony, which was the only evidence implicating the defendant. Id. at 1126. The court later acknowledged that the testimony was inadmissible. Id. at 1124. When the court reconsidered its position, the defendant asked for a mistrial. Id. at 1125. The court denied the motion for mistrial and, two days later, gave a curative instruction. Id. On those facts, where the testimony was the only evidence implicating the defendant, we held it was error to deny 'the mistrial. Id.

In this case, the officer’s testimony was not the only evidence implicating the defendant. Importantly, the officer did not even testify that the child identified the defendant. Instead, he merely stated that the child had given a description of the perpetrator. The officer did not testify as to whether the description was consistent with the defendant and, in fact, did not provide any information about the description at all.

The fact that the child’s out-of-court statement did not incriminate the defendant distinguishes this case from the cases relied upon by the defendant. See Martin v. State, 85 So.3d 537 (Fla. 4th DCA 2012); Tosta v. State, 786 So.2d 21 (Fla. 4th DCA 2001); Schaffer v. State, 769 So.2d 496 (Fla. 4th DCA 2000). In each of those cases, the jury was exposed to the fact that an out-of-court statement was made and that the statement incriminated the defendant. Here, the officer merely testified that the child gave a-description, but he did not provide any -facts about the description. The fact that a description was given, without more, was not sufficient to declare a mistrial. See, e.g., Dennis v. State, 817 So.2d 741 (Fla. 2002).

C. Conclusion

' The defendant’s motions to disqualify the trial court were not facially sufficient. Therefore, the court properly denied those motions. Likewise, the court properly denied the defendant’s motion for mistrial because the testimony at issue did not incriminate him.

Affirmed,

Gerber, J., concurs.

Warner, J. dissents with opinion.

Warner, J.

dissenting.

The appellate standard of review for a judge’s denial of a motion for recusal is de novo, Peterson v. Asklipious, 833 So.2d 262, 263 (Fla. 4th DCA 2002). Thus, this court must take the statements in the affidavit as true and determine whether they would prompt, a reasonably prudent person to fear that he could not get a fair trial. Fla. R. Jud. Admin. 2.330; see also Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). The motion and affidavit in this case met that test.

There is a difference between a judge trying to control the courtroom and a judge showing hostility and bias toward counsel. While some of the actions of the trial judge may fall nominally into the category of courtroom control, others, such as turning her back to counsel while counsel was arguing, simply show hostility. The majority goes beyond the statements in the affidavit in dismissing them as not being shown in context of the trial. It is not necessary for the affidavit to indicate “when or why the judge engaged in this .conduct or whether the State’s attorney was treated in a similar fashion.” The affidavit’s statements are deemed as true, and -the court must only review what was before the court on disqualification.

Furthermore, the trial judge contested the truth of the allegations, which also requires her recusal. See Fla. R. Jud. Admin. 2.330(f) (“[A]n order of denial shall not take issue with the motion.”); see also MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1339 (Fla. 1990). The affidavit stated that the defendant, and thus the jury, could hear the judge’s angry interactions with counsel over the noise-cancelling devices at the bench. During the hearing on the motion, the court insisted that the jury could not hear what was occurring at the bench, even though the defendant swore in his affidavit that he could hear at counsel’s table. By attempting to refute the statements in the affidavit, the court took issue with the motion and thus necessitated recusal. Edwards v. State, 689 So.2d 1251, 1252-53 (Fla. 4th DCA 1997), “When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.” Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978).

As to the second issue, I would also reverse. The multiple-day delay in giving a curative instruction did not erase the harmful admission of the officer’s statement that the non-testifying child gave him a description of the perpetrator, which led to defendant’s arrest. I agree with the analysis in Melehan v. State, 126 So.3d 1118, 1125-26 (Fla. 4th DCA 2012), that where inadmissible and highly damaging statements are heard by the jury, a significant delay in giving a curative instruction compounds the harmful effect and constitutes an abuse of discretion, which should result in reversal for a new trial.


source: Caselaw Access Project

author: Ciklin, C.J.

license: Public Domain

text:
    Ellen ROSALER, Appellant, v. Joseph H. ROSALER, Appellee.
    No. 4D15-3261
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]

      Cynthia L. Greene of Greene Smith & Associates, P.A., Coral Gables, and Jeffrey P. Wasserman of Shapiro, Blasi, Wasser-man, Herman, P.A., Boca Raton, for appellant.
    Chad R. Laing of Laing & Weicholz, P.L., Boca Raton, for appellee.
   Ciklin, C.J.

Appellant Ellen Rosaler (“the wife”) appeals the final judgment of dissolution of marriage, raising numerous issues related mainly to equitable distribution and alimony. Appellee Joseph Rosaler (“the husband”) cross-appeals with respect to equitable distribution. We find merit in two issues raised by the wife and reverse and remand on those issues. We otherwise affirm.

During a pre-trial hearing on the wife’s motion for temporary support and attorney’s fees and costs, her attorney suggested the parties sell a yellow diamond: “[The proceeds don’t] have to be equitably divided, but it can be utilized, and then you can make the division at the end of the case.” Thereupon the trial court directed the parties to sell the diamond and use $60,000 of the proceeds to pay the wife’s attorney’s and accountant’s fees. The court stated that it would “defer [on] whether or not it will be [treated as] equitable distribution after I see what’s going on.” The wife’s attorney did not object. The husband’s attorney argued that the wife’s accountant’s fee was unreasonable, as “[t]hey have spent $70,000 on accountant fees, yet they haven’t analyzed anything going back more than a year and a half, and it’s basically just a book about the financial affidavit.” The court indicated that it would determine the reasonableness of all requested fees at “the end” of the case.

In the written temporary support order, the court found that the husband had been voluntarily paying the parties’ household expenses as well as $2,000 a month in temporary alimony. The court required the husband to continue doing so. The court directed the wife to sell the yellow diamond and to use the proceeds to pay $30,000 to her forensic accountant and $30,000 to her attorney. The balance would be divided equally between the parties. The temporary support order further provided that the court “defers until trial on the issue of whether the payment of the foregoing fees will be deemed as equitable distribution or assessed in some other manner.” The order contains no findings on- need and ability to pay and the reasonableness of the fees and costs.

With respect to the diamond, the final judgment ultimately provided as follows:

i. The Parties’ yellow diamond was sold for $142,000 pursuant to a Court order to pay for Wife’s attorney’s fees and costs. Of the proceeds from the sale, Wife’s attorney received $30,000 and Wife’s forensic accountant received $30,000. The Parties split the remainder of the funds, each receiving $41,000. Therefore, $101,000 is attributed to the Wife and $41,000 is attributed to the Husband from the sale of the yellow diamond.

On appeal, the wife argues that it was error for the trial court to treat the $60,000 she used for fees and costs as part of the trial court’s equitable distribution scheme rather than just a stand-alone element of temporary support. She relies on cases holding that, absent misconduct, an asset that has been diminished or depleted during the dissolution proceedings cannot be included in the equitable distribution scheme. See Winder v. Winder, 152 So.3d 836, 838-39 (Fla. 1st DCA 2014); Zvida v. Zvida, 103 So.3d 1052, 1055 (Fla. 4th DCA 2013); Tradler v. Tradler, 100 So.3d 735, 740 (Fla. 2d DCA 2012).

We must find that this case is' different. Here, the parties essentially stipulated that the diamond could be sold and the sale proceeds used for the wife’s attorney’s, fees and costs, and that the trial court would defer on the wife’s motion for temporary fees and costs. When the trial court ultimately “charged” the wife with the proceeds used for her attorney’s fees and costs, it implicitly found that the wife was not entitled to temporary attorney’s fees and costs. It may be that-the use of the sale proceeds by the wife should have beeii treated as temporary support, but there were never any findings regarding the wife’s entitlement to. temporary fees and costs. The wife acknowledges in her reply brief that the trial court did not make the findings necessary to support a temporary attorney’s fees order. See Duncan v. Duncan, 642 So.2d 1167, 1168-69 (Fla. 4th DCA 1994) (recognizing that an award of temporary attorney’s fees and costs is based on an assessment of need and ability to pay as well as the reasonableness of the fees and costs). Accordingly, we reverse and remand for the trial court to either make findings 'justifying its treatment of some or all of the proceeds as equitable distribution rather than temporary support or, if it determines that some or all of the $60,000 should be treated as support, revisit the issue of equitable distribution.

We must also find that the trial court erred in not considering the tax implications of the alimony award. Section 61.08(2)(h), Florida Statutes (2014), requires the court to consider the “tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.” The final judgment provided that the alimony award was taxable to the wife and deductible by the husband, but it did not make it clear whether the court considered the impact of this provision before determining the appropriate amount to award. For that reason, we reverse and remand for the trial court to make, findings regarding the tax consequences of the alimony award and to revisit the amount of the alimony obligation if necessary. See Kelley v. Kelley, 177 So.3d 292, 294 (Fla. 4th DCA 2015) (reversing for findings on tax treatment and consequences of alimony where a lack of findings made it impossible for the court to determine the appropriateness of the alimony award); Gilliard v. Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) (reversing where trial court failed to make specific findings on all the factors recited in section 61.08(2), including the tax treatment and consequences of awarding alimony).

In sum, we reverse the final judgment with respect to the inclusion in the equitable distribution scheme of $60,000 in funds used by the wife for fees and costs, and for consideration of the tax consequences of the alimony award. On remand, the trial court should make the required findings as to both issues and reconsider the equitable distribution scheme if necessary. The trial court should also reassess the alimony award to the extent any changes to the equitable distribution plan make that necessary.

Affirmed in part, reversed in part, and remanded with instructions.

Devine and Forst, JJ., concur.


author: Per Curiam.

text:
    George SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1040
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney. General,. Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney. General, West Palm Beach, for appellee.
   Per Curiam.

We affirm appellant’s sentence entered after an open plea to the court on charges of violation of community control, without prejudice to seek postconviction relief.

We note that it was-not necessary for the court to conduct a “danger hearing” pursuant to section 948.06(8)(d), Florida Statutes (2016) because appellant did not meet any of the statutory criteria that trigger the necessity for such a hearing. However, appellant’s counsel did not object to the court conducting a proceeding where she found that appellant was- “a violent offender of special- concern.” Any error was therefore unpreserved.

We do not consider whether we can address the error as fundamental because appellate counsel has not raised the issue. See Wheeler v. State, 87 So.3d 5, 6 (Fla. 5th DCA 2012); Sampson v. State, 903 So.2d 1055, 1059 (Fla. 2d DCA 2005) (Altenbernd, J., concurring); Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2003).

Ciklin, C.J., Gross and Conner, JJ., concur.


text:
    Junior JEUDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1586
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Junior Jeudy appeals the trial court’s denial of his rule 3.850 motion. We accept the State’s concession on appellant’s first claim, and we remand for the trial court to correct appellant’s judgment to conform to the jury’s verdict that he was guilty of attempted carjacking and false imprisonment. The appellant need not be present for the correction. See Wiggins v. State, 992 So.2d 363, 364 (Fla. 5th DCA 2008).

We affirm the summary denial of claim two on the ground that appellant failed to demonstrate prejudice under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There was no defect in the information, no dispute as to the identity of the false imprisonment victim, and the evidence at trial established appellant’s guilt as alleged in the information.

Affirmed; remanded for entry of a corrected judgment.

Warner, Gerber and Conner, JJ., concur.


author: Taylor, J. Forst, J.,

text:
    Steven YERKS, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, Appellee.
    No. 4D15-4449
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]

      Mark F. Kelly of Mark F. Kelly, P.A., Tampa, for appellant.
    Charles T. Whitelock of Charles T. Whitelock, P.A., Fort Lauderdale, for ap-pellee.
   Taylor, J.

Appellant, Steven Yerks, a teacher who was discharged primarily for failing to correct alleged performance deficiencies, appeals a final administrative order in which the Broward County School Board rejected certain factual findings of the Administrative Law Judge (“ALJ”) and rejected the ALJ’s recommendation that appellant be reinstated. We reverse.

This dispute arises out of appellant’s performance as a mathematics teacher at Boyd Anderson High School during the 2013-14 school year. At all relevant times, the School Board used a performance evaluation system known as iObservation, which is based on the methods of Dr. Robert Marzano.

The iObservation form consists of 60 strategies or criteria listed in four domains—classroom strategies, planning and preparation, reflecting on teaching, and professionalism. Observers score the criteria in the domains by issuing the following “datamarks” to indicate the teacher's level of performance—innovating (4 points), applying (3 points), developing (2.5 points), beginning (2 points), and not using (1 point).

In February 2014, appellant was placed on a Performance Development Plan. There were 18 observations of appellant’s classroom performance during the school year. Most of the observations were conducted by either the principal or the assistant principal. Over 100 “datamarks” concerning appellant’s teaching performance were entered into the iObservation system during the observations. Appellant’s final score was unsatisfactory.

In June 2014, the Broward County Superintendent of Schools filed an Administrative Complaint recommending that áppellant be terminated from his employment with the school district. The case proceeded to a formal administrative hearing.

At the three-day hearing, the ALJ heard testimony from 16 witnesses and admitted multiple exhibits into evidence, including the 102 datamarks recorded in the performance evaluation system. Several of the Superintendent’s witnesses testified about 'appellant’s alleged misconduct, but the ALJ found that much of this testimony was not credible.

The principal and assistant principal testified that appellant’s classroom performance was unsatisfactory based on their observations. No other witness conducted, or was'credentialed to conduct, an observation of appellant’s teaching under the Mar-zano method.

Appellant did, however, present the testimony of a liaison between the Teachers Union and the school district, who testified ■that she had concerns about the procedural fairness of the observations of appellant’s teaching. Although she was not a credentialed Marzano observer, she received training concerning the Marzano method and testified that some of the data-marks appellant received were contradictory to that training. For example, appellant received multiple “not.using” datamarks that failed to contain any feedback on how to improve. Likewise, for one observation, there was evidence that appellant had posted a learning goal, but appellant still received a “not using” datamark, which was contradictory to the Marzano evaluation system.

Appellant, who was also trained in the Marzano method but was not a credentialed observer, testified in his own defense and criticized how the observations were scored.

The ALJ issued a lengthy recommended order, finding that the Superintendent failed to prove any of the charges against appellant. The main focus of the recommended order was on whether the Superintendent proved the allegations regarding appellant’s failure to correct performance deficiencies. On this issue, the ALJ found that the observations conducted by the principal and assistant principal “were tainted by incompetence, carelessness, and confirmation bias.”

The ALJ discarded or revised various datamarks on the following grounds: (1) the observers misapplied criteria requirements; (2) the observers disproportionately observed certain criteria; and (3) certain datamarks were not proven by the greater weight of the evidence.

Contrary to the dissent’s suggestion that the ALJ’s decision was based on nothing more than a conclusory impression that the observations were tainted, the ALJ undertook a painstaking review of each observation and discussed his findings at length in a 129-page, order. The following are but a few examples of the ALJ’s criticisms of the datamarks;

• The iObservation form requires observers to check items of “Teacher Evidence” that are present during an observation of a particular criterion. However, in the datamarks issued through February 2014, the assistant principal would often check items that he believed were missing rather than items that were present, which created an unreasonable likelihood of an unreliable observation. The ALJ thus observed: “For particularly inattentive or inept observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that are clearly illustrative, even though the absence of an illustrative item logically does not preclude a relatively high data-mark, if other evidence of compliance is present.”
• With respect to the datamarks issued by the assistant principal for domains 2 through 4, the ALJ found that there was “no evidence of any exchange of information or examination of planning materials,” and that “[t]he failure to inform these determinations in the manner provided by the iObservation form undermines the reliability of all of the datamarks for these criteria.”
• The ALJ found that there was an inconsistency among certain datamarks entered by the assistant principal as to the same criteria over the same time span, explaining that the datamarks “collectively make no sense” and should be discarded.
• With respect to a datamark of “hot using”' that appellant received for the criterion of “promoting positive interactions. with colleagues,” the ALJ found that the comment corresponding to that datamark reflected the assistant principal’s opinion of appellant’s behavior at a recent teacher meeting and nothing more. The criterion required an analysis of the extent to which a teacher interacts with other teachers to promote learning, which was not done. Thus, the ALJ discarded the datamark to avoid the unreasonable likelihood of an unreliable evaluation.
• The ALJ noted that appellant received a “beginning” datamark for a criterion concerning “seeking mentorship” based on the assistant principal’s comment that appellant did not show appreciation for the efforts- and assistance of his academic coaches, even though gratitude was not an element of the criterion at issue.

After discarding and revising various da-tamarks, the ALJ recalculated appellant’s score and determined that his performance was in the effective range.

The ALJ determined that, .the Superintendent had “failed to prove any performance deficiency for the 2013-14 school year.” The ALJ found -that “[t]he evidence affirmatively proves that [appellant] worked faithfully and diligently for his students.” The ALJ concluded that “[r]egardless of whether the observation data were rejected in their entirety for these reasons or, as here, discarded and revised after analysis of each datamark, there is no performance deficiency to correct.” Accordingly, the ALJ recommended that the School Board. dismiss the Administrative Complaint and reinstate appellant with back pay.

In a final order, the School Board rejected'many of the ALJ’s factual findings and conclusions of law. Most important, the School Board rejected the ALJ’s Findings of Fact “to the extent that such findings interpret the evaluation rating methodology and/or modify or discard evaluation da-tamarks .... ” The School Board thus rejected the ALJ’s conclusions of law on the counts regarding performance deficiencies. The School Board determined that appellant’s employment would be terminated. This appeal from the School Board’s final order followed.

An administrative agency, such as a school board, may not reject or modify an ALJ’s findings of fact “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” § 120.57(1)l), Fla. Stat. (2015). Stated another way, “neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.” Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). “Nor may the agency reject a finding that is substantially one of fact simply by treating it as a legal conclusion.” Abrams v. Seminole Cty. Sch. Bd., 73 So.3d 285, 294 (Fla. 5th DCA 2011).

If the ALJ’s factual findings “are supported by competent substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent substantial evidence.” Resnick v. Flagler Cty. Sch. Bd., 46 So.3d 1110, 1112-13 (Fla. 5th DCA 2010). “Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact.” Heifetz v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). For example, the performance or competence of a professional is an issue susceptible to ordinary methods of proof and is thus an issue of fact to be determined by the ALJ. See Gross v. Dep’t of Health, 819 So.2d 997, 1003 (Fla. 5th DCA 2002) (the issue of whether a doctor deviatéd from the applicable standard of care is susceptible to ordinary methods of proof and is an issue of fact to be determined by the administrative law judge); Harac v. Dep’t of Prof'l Regulation, Bd. of Architecture, 484 So.2d 1333, 1337 (Fla. 3d DCA 1986) (agency could not reject hearing officer’s determination that candidate’s answer to architectural exam question demonstrated minimum competence: “Although the determination of design competency in architecture requires specialized knowledge and experience, it is not so unique so as to defy ordinary methods of proof in formal adversarial proceedings.”).

“The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.” Heifetz, 475 So.2d at 1281. In a fact-driven case where an employee’s conduct is at issue, “great weight is given to the findings of the administrative law judge, who has the opportunity to hear the witnesses’ testimony and evaluate their credibility.” Resnick, 46 So.3d at 1112. “An agency abuses its discretion when it improperly rejects an administrative law judge’s findings.” Id. at 1113.

If an agency rejects conclusions of law contained in a recommended order, “the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla. Stat. (2015). An appellate court reviews an agency’s conclusions of law de novo, and “will defer to the agency’s conclusions of law unless they are clearly erroneous or contrary to law.” U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012).

Here, we conclude that the School Board exceeded its authority by rejecting the ALJ’s factual findings that were supported by competent substantial evidence.To be sure, the ALJ should not have attempted to rescore appellant’s evaluation, given that the ALJ did not actually observe appellant teaching. Nonetheless, competent substantial evidence supported the ALJ’s conclusion that a considerable percentage of the administrators’ evaluation datamarks regarding appellant’s teaching performance were flawed. Put simply, the ALJ’s core findings regarding the flawed nature of appellant’s performance evaluation were supported by competent substantial evidence. '

The issue of appellant’s classroom performance was not so unique as' to defy ordinary methods of proof in formal adversarial proceedings. It was within the ALJ’s purview as a fact-finder to determine as a factual matter that the observations of appellant’s performance were “tainted by incompetence, carelessness, and confirmation bias.” The ALJ made numerous valid criticisms of the datamarks, many of which could be gleaned from the evaluation forms themselves. For example, the ALJ correctly pointed out that on several occasions the assistant principal improperly filled out the observation form by checking items that he believed were missing rather than items that were present The School Board has not shown with particularity how the ALJ’s criticisms of the datamarks were wrong.

The ALJ’s lack of credentials as a Mar-zano observer is not a valid basis for rejecting the ALJ’s findings. The ALJ did not need to be a credentialed Marzano observer—nor did he need to actually observe - appellant’s teaching—to conclude from the evidence that a substantial number of the school administrators’ data-marks were based “on their misreading of the requirements of the criteria that they were assessing,” thus signifying incompetence, .carelessness, ■ and confirmation bias. Just as a fact-finder is generally free to reject expert testimony, so. too may a fact-finder reject the validity of an evaluation from a credentialed Marzano observer.

Accordingly, even if' the ALJ should not have rescored the observations of appellant’s performance, the ALJ was permitted to reject the validity of the evaluation as a whole. Thus, competent substantial evidence supported the ALJ’s findings that the Superintendent failed to meet his burden as to all of the counts related to appellant’s alleged performance deficiencies.

Similarly, the School Board should not have rejected the ALJ’s cónclusions of law as to the misconduct counts. Although the ALJ rejected the clear majority of the factual allegations of misconduct against appellant, the ALJ found that the record established two isolated incidents of appellant’s inappropriate treatment of his teaching coaches in the presence of students. The School Board, relying on these incidents, found that its substituted conclusion of law as to the misconduct counts was “as or more reasonable [than] that which is being rejected.’’

An agency is hot, however, permitted to “reject a finding that is substantially one of fact simply by treating it as a legal conclusion.” Abrams, 73 So.3d at 294. Here, the School Board did just that. In light of the ALJ’s undisturbed findings of fact that appellant’s behavior could not be characterized as harassment, discriminatory, intimidating, oppressive, or otherwise capable of reducing his colleagues’ ability to perform their duties, the School Board’s conclusion of law regarding the misconduct counts simply is not . “as or more reasonable” than that which was rejected or modified. In any event, appellant’s two “inappropriate” statements, as found by the ALJ, were so minor that the ALJ’s conclusion of law on the misconduct counts is more reasonable than the School Board’s.

In the final analysis, the School Board has not shown that the ALJ’s key factual findings regarding the reliability of the datamarks were unsupported by competent substantial evidence. We therefore reverse and remand with, instructions for the School Board to adopt the ALJ’s recommended order to the extent the recommended order is consistent with the above analysis, and to implement the ALJ’s recommendation that appellant be-reinstated with back pay.

Reversed, and Remanded.

Conner,' J., concurs.

Forst, J,, dissents with opinion.

Forst, J.,

dissenting.

I respectfully dissent. I would affirm the School Board’s Final Order, which rejected the ALJ’s Recommended Order and upheld the termination of Appellant from his teaching position with the Broward County Schools. As argued by the Bro-ward County Superintendent of Schools in his exceptions, the core findings in the ALJ’s Recommended Order were not based on competent substantial evidence, but on “factual findings” created by the ALJ.

The ALJ: relied upon testimony-and correspondence prepared by Appellee’s witr nesses that were complimentary toward Appellant, while discarding the far more numerous negative impressions, maintaining these critiques were “shaped by [the witnesses’] knowledge of their employer’s interest in securing the dismissal of [Appellant].” The ALJ also rejected the “observations” and “datamarks” of the Principal and Assistant Principal that formed the primary basis for Appellant’s discharge because of the ALJ’s conclusory “impression” that the observations “were tainted by incompetence, carelessness, and confirmation bias.”

The majority opinion states that “the School Board rejected the Superintendent’s exceptions to the ALJ’s findings of fact regarding the misconduct- counts.” However, there is ample unrebutted evidence in the ALJ’s findings that Appellant was disrespectful toward fellow teachers who were assigned as “coaches,” administrators, and students. These findings that illustrate Appellant’s disrespectful behavior were, in turn, discounted by the ALJ, thus sidestepping an analysis of the charge of “incompetency,” which includes “failure to perform duties prescribed by law”; “[failure to communicate appropriately with and relate to students”; and “[fjailure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents.” Fla. Admin. Code R. 6A-5.056(3)(a).

For instance, a former Assistant Principal at Appellant’s school testified concerning his interactions with Appellant during the 2010-11 and 2011-12 school years. He claimed that Appellant did not use any of the required criteria contained in the iOb-servation® form; he found Appellant to be “demeaning” and “insulting” to his students; and in response to suggestions from the witness that Appellant should try various Marzano strategies, Appellant either refused or agreed to appear at teachers’ meetings to discuss the strategies, but was a no-show for these meetings, thus displaying “a level of arrogance unparalleled.”

Additionally, as noted in the ALJ’s findings of fact, a different Assistant Principal, who supervised Appellant during the latter’s final two years, testified that he “advised [Appellant] that it had been unprofessional and impolite of him three days earlier to have placed copies of a memorandum from an AHS administrator critical of some act or behavior of [Appellant] in the school mailboxes of other teachers. When Assistant Principal Farr directed [Appellant] not to do it again, [Appellant] replied that Assistant Principal Farr lacked the authority to prohibit him from doing so and, whenever an administrator gave him something 'stupid,’ he would copy and disseminate it to the other teachers.”

The ALJ accuses the administrators of “confirmation bias,” which the ALJ defines, with reference to a Judge Richard Posner book, as -the “well-documented tendency once one has made up one’s mind, to search harder for evidence that confirms rather than contradicts one’s initial judgment.” See Engler v. Herrling (In re Engler), 490 B.R. 622, 627 n.37 (Bankr. M.D. Fla. 2013) (quoting Richard A. Posner, How Judges Think 110-11 (2008)). Ironically, this more accurately described the ALJ’s own approach to his decision. He negated most of the negative testimony and observations concerning Appellant and created his own rating of Appellant’s performance, discarding some of the administrators’ datamarks and substituting his own post-hearing assessments (Appellant only commented upon two of the eighteen observations). The ALJ relied upon his own- assessments in drafting the Recommended Order, without providing the School Board an opportunity to challenge, let -alone see, the assessments prior to issuance of the Recommended Order. This would appear to run afoul of the rule set forth' over fifty years ago in Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA1962):

Administrative officers, boards or commissions who are required to make a determination upon or after a hearing, in the exercise of a judicial or quasi-judicial function, cannot act on. their own information. All parties to such, a hearing must be fully apprised of the evidence submitted or to be considered, and nothing can be treated as evidence which is not introduced as such, for there is no hearing where a party cannot know what evidence is offered or considered and is not given an opportunity to test, explain or refute. It is improper for such an officer, agency or commission to base its decision or findings upon facts gathered from its own records without introducing the records into 'evidence.

Id. at 910.

Finally, the ALJ seemed to have reached his revised data scores, findings, and conclusions based on his disdain for the School Board’s state-approved teacher evaluation process and evaluation form (“[t]he iObservation® form’s flaws raise considerable doubts as to its role in producing informed, balanced, and replicable observation data”). Accordingly, he gave little attention to the testimony of the school district’s Director of Employee Evaluations who gave an explanation as to how the evaluation process worked, and instead substituted his own evaluation standards.

In essence, the lengthy Recommended Order substitutes the “impressions” of the ALJ for the observations of two experienced school administrators who are credentialed Marzano observers and whose concerns regarding Appellant’s performance and conduct was buttressed by several teachers/coaches, as well as a former Assistant Principal. The ALJ’s “impressions” and his reliance on an “observation” score that he created without having actually observed Appellant teaching, is not competent substantial evidence upon which a rejection of the Superintendent’s recommended action of termination can be premised. As such, I would affirm the School Board’s Final Order and, accordingly, I dissent.

      , The dissent emphasizes that there was ample evidence of appellant’s disrespectful conduct. However, neither the School Board, nor this court, is authorized to reweigh the evidence or to judge the credibility of witnesses, And, in any event, the School Board rejected the Superintendent’s exceptions to the ALJ’s findings of fact regarding the misconduct ■ counts.

      . The dissent asserts that appellant "only commented upon two of the eighteen observations.” This assertion requires clarification. After an observer submits a classroom observation on the iObservation system, a teacher has access to it and may write a comment. Here, appellant wrote comments in the iOb-servation system as to only two of the 18 ^ observations. But, in his testimony, he criticized far more than two of the observations,

      . The School Board also rejected the ALJ’s conclusions of law as to the misconduct allegations of Counts I and II, but this determination appears inconsistent with the School Board’s acceptance of the ALJ's findings of fact related to those counts.

      . While the ALJ should not have attempted to rescore appellant’s performance, there is no indication that the ALJ considered any evidence outside the record in making his findings. We therefore reject the School Board’s attempt to liken this case to Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA 1962), which stands for the unremarkable proposition that it is improper to base a decision on facts outside the record. At most, the AU might have made some findings that were unsupported by competent substantial evidence.

      .. Indeed, if an ALJ could never reject the validity of a Marzano evaluation, then what would be the point of a formal hearing? ' Judges are frequently called upon to scrutinize the reliability of expert opinions in areas requiring specialized knowledge and experience, even though judges may not be experts themselves.

      . The School Board and the dissent each suggest that the ALJ harbored a "disdain” for the iObservation evaluation process. While the ALJ did suggest there were flaws in the iOb-servation system, the ALJ was primarily concerned with the reliability of the datamarks themselves and how the tool was used in this case to justify appellant's termination.


author: Kuntz, J.

text:
    Christopher WOLTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4375
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]
    Christopher Wolter, Fort Lauderdale, pro se.
    No appearance for appellee.
   Kuntz, J.

The defendant appeals an order denying his post-judgment motion for jail credit. We affirm the court’s order without prejudice for the defendant to raise issues regarding the voluntariness of his plea by motion pursuant to Florida Rule of Criminal-Procedure 3.850.

In 2015, the defendant was convicted of grand theft of a motor vehicle. The court withheld adjudication and sentenced him to probation. In 2016, he was charged with violating his probation and he pleaded to violation of probation, as well as a new, additional offense. The plea agreement provided for reinstatement of probation with special conditions including mitigating his term from 364 to 270 days, and for probation on the prior offense to terminate upon completion of his jail sentence for the new offense. The plea agreement also expressly provided that he would receive credit for 2 days of jail time served.

The defendant did not appeal, however, he filed a timely motion under Florida Rule of Criminal Procedure 8.801 seeking additional credit for time served in the Broward County jail from May 6, 2016 to June 16, 2016. The court summarily denied the motion on the merits, stating that at the time of his plea to violation of probation and to the new offense, the defendant and his counsel agreed on the record that he should receive two days of credit for time served and that all other time would be waived.

We have held that jail credit may be waived when the waiver is specific, voluntary, and clear from the face of the record. White v. State, 995 So.2d 1172, 1173-74 (Fla. 4th DCA 2008) (citations omitted). In this case, the court’s conclusion is supported by the record.

However, in his pro se notice of appeal, the defendant included verified allegations that “he was not aware he didn’t receive credit for time served for the above until after-the-fact because he was on his medication valium to detox.” A claim that a plea was not knowingly and'voluntarily entered into is properly raised pursuant to Florida Rule of Criminal Procedure 3.850. See, e.g., Wright v. State, 174 So.3d 400, 402 (Fla. 4th DCA 2015). Therefore, our affirmance is without prejudice to the defendant’s right to file a motion under 3.850 concerning the voluntariness of his pleas. See, e.g., Walker v. State, 203 So.3d 192 (Fla. 4th DCA 2016).

Affirmed.

Conner and Forst, JJ., concur.


text:
    H & E EQUIPMENT SERVICES, INC., Appellant, v. Anthony M. RODRIGUEZ, Appellee.
    No. 4D16-1743
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]
    Rodney J. Janis and Michael McQuaide of Goldberg Segalla, LLP, West Palm Beach, for appellant.
    George C. Vogelsang of The Vogelsang Law Firm, Sunrise, and John R. Kelso of Levey Lieberman LLP, Miami, for appel-lee.
   Per Curiam.

Appellant challenges the trial court’s order granting a new trial on its own motion based upon appellant’s improper closing argument in which appellant introduced facts outside of the evidence presented at trial. The court had the authority to grant such a motion, even though appellee had failed to request a mistrial. See Nigro v. Brady, 731 So.2d 54, 56 (Fla. 4th DCA 1999); Fla. R. Civ. P. 1.530(c). Given the deference that trial courts are allowed in such matters, the court did not abuse its discretion in concluding that appellant’s presentation of facts not in evidence was prejudicial and warranted a new trial.

Affirmed.

Warner, Levine and Forst, JJ., concur.


text:
    Kim Duane CAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2997
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Melissa Montle and Seth E. Miller of Innocence Project of Florida, Inc., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Scott v. State, 46 So.3d 529, 532-33 (Fla. 2009) (any error in trial court’s finding that defendant’s motion for postconviction DNA testing was technically insufficient was harmless where defendant’s motion for postconviction DNA testing was legally insufficient because he failed to show a reasonable probability existed that the test results would exonerate him).

Gerber, Conner and Klingensmith, JJ., concur.


author: May, J.

text:
    William DOUBERLEY, Petitioner, v. Isaac PERLMUTTER, Laura Perlmutter and Harold Peerenboom, Respondents.
    No. 4D16-2597
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]

      Daniel M. Bacfii, Jeremy D. Bertsch and Kaitlin E. Cupp of Sellars, Marion & Ba-chi, P.A., West Palm Beach, for petitioner.
    Joel S. Perwin, Miami, and Roy Black, Jared Lopez and Joshua Shore of Black Srebnick, Kornspan & Stumpf, P.A., Miami, for respondents.
   May, J.

An attorney petitions this court for a writ of certiorari to review an order compelling him to answer questions involving attorney-client privilege. He raises both a due process argument and a substantive argument in suggesting the trial court departed from the essential requirements of the law resulting in irreparable harm. We agree with him regarding his due process argument and grant the petition solely on that basis.

The order at issue arises in a defamation case in which the attorney’s client is the plaintiff. Before he filed the defamation action, and giving rise to it, plaintiff'suspected that the potential defendants were behind a hate mail campaign directed at him. He also suspected that the potential defendants were funding another action in which the plaintiff had been sued (“Kay-Dee case”).

Though they were not parties in the Kay-Dee case, the attorney scheduled their depositions in that action. During the deposition, the attorney arranged to .show “exhibits” to the deponents (now defendants). The-paper used to create the exhibits was treated with chemicals to facilitate DNA collection and the deponents were to touch those items. The deponents’ discarded water bottles were also to be collected following the deposition. Thereafter, DNA tests would be run to compare their DNA and fingerprints to those retrieved from the hate mail sent, which formed the basis of the instant defamation action.

Plaintiff filed the defamation action about eight months after the depositions. The attorney and the plaintiff admit to the above conduct, but claim the deposition had a .legitimate basis as well.

The'defendants then deposed the attorney regarding the scheduling of their deposition and the DNA collection in the Kay-Dee case. The attorney asserted attorney-client and Fifth Amendment privileges throughout. The defendants then moved to compel the attorney to answer questions, arguing’the crime-fraud exception applied to avoid the attorney-client privilege.

The crime-fraud exception provides there is no attorney-client privilege when the lawyer’s services are “sought or obtained to enable or aid anyone to commit or plan to commit what the client kneio was a crime or fraud.” See. § 90.502(4)(a), Fla. Stat. (2016) (emphasis added). The defendants argued that the crime-fraud exception applied because section 760.40, Florida Statutes, requires anyone doing DNA testing to first get the person’s consent and to .notify the person of the results.

Neither the plaintiff, his attorney, his DNA tester, nor the police appear to have been aware of this DNA statute when the samples were collected and tested. The defendants argue that the plaintiff and his attorney committed a fraud upon the court when they used the court’s subpoena power to depose them in the Kay-Dee case where they were non-parties.

The trial court agreed. Significantly, the attorney was not present at the hearing on the motion to compel. The trial court found the plaintiff not credible.

The twenty-two page order concluded that the “fraud on the court” concerned the scheduling of the deposition in the Kay-Dee case without a legitimate purpose apart from DNA collection and the use of the court’s subpoena power to do so. Per the order, the attorney is not shielded from testifying to .events related to the “collection, testing, and publication of the , [defendants’] DNA samples, occurring between December of 2012 and April of 2013, as the crime-fraud exception applies to the instant matter, piercing the attorney-client privilege.”

In his petition, the attorney argues he did not receive notice of, and was not present at, the hearing leading to the detailed order under review. He also argues that the deposition was not a fraud upon the court. And, he contends that the DNA statute does not apply to his role, which was.the “collection” of DNA, We agree with the attorney solely on his due process argument and quash the order on that basis.

Florida courts have held that due process requires an evidentiary hearing to determine applicability of the crime-fraud exception. See Merco Group of the Palm Beaches, Inc. v. McGregor, 162 So.3d 49, 51 (Fla. 4th DCA 2014). Here, the attorney was denied due process when the court found that his conduct was fraudulent without offering him an opportunity to be heard. See Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461 (Fla. 2d DCA 2011); Clare v. Coleman (Parent) Holdings, Inc., 928 So.2d 1246, 1248 (Fla. 4th DCA 2006).

We therefore quash the order and remand the case to the trial court to conduct a hearing with notice to the attorney and an opportunity to be heard.

Petition granted in part, order quashed in part.

Taylor and Gerber, JJ., concur.

      . "A person who violates paragraph (a) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082. or s. 775.083.” § 760.40(2)(b), Fla. Stat. (2016).
      A person who performs DNA analysis or receives records, results, or findings of DNA analysis, must provide the person tested with notice that the analysis was performed or that the information was received. The notice must state that, upon the request of the person tested, the information will be made available to his or her physician. The notice must also state whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit, or educational opportunity. If the information was used in any decision that resulted in a denial, the analysis must be repeated to verify the accuracy of the first analysis, and if the first analysis is found to be inaccurate, the denial must be reviewed.
      § 760.40(3).

      . The defendants did not address the due process argument in their response.


author: Gerber, J.

text:
    Rayfield MAJOR, Appellant, v. HALLANDALE BEACH POLICE DEPARTMENT, Appellee.
    No. 4D16-1714
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]

      Rayfield Major, Miami, pro se.
    V. Lynn Whitfield, City Attorney, and Andre Mckenney, Deputy City Attorney, Hallandale Beach, for appellee.
   Gerber, J.

The defendant appeals from the circuit court’s order denying his petition for writ of mandamus, which sought to direct the police department to comply with his request for public records relating to his conviction of attempted robbery with weapon. We affirm the denial of the petition, but without prejudice to the defendant filing a new petition attaching a document which he filed in this appeal, but did not attach to the petition at issue.

Among the records which the defendant requested from the police department were results from DNA and fingerprint tests on the weapon.

In response to the request for the test results, the police department filed an un-sworn response stating “None.”

The circuit court issued an order denying the defendant’s petition without an evi-dentiary hearing. However, the court based its denial on its finding that the defendant had not paid the proper fee for the records.

The defendant argues in this appeal that the circuit court erred by denying his petition on the basis that the test results regarding the weapon would be released to him upon payment of the proper fee, when the police department responded it did not possess such records.

We agree with the defendant’s argument. The circuit court’s order is internally inconsistent given that the court denied the defendant’s petition on the basis that the test results regarding the weapon would be released to him upon payment of the proper fee, when the police department responded there was none.

However, we nevertheless affirm the circuit court’s order denying the defendant’s petition. In order to obtain a writ of mandamus, the complaint must contain: “(1) the facts on which the plaintiff relies for relief; (2) a request for the relief sought; and (3) if desired, argument in support of the complaint with citations of authority.” Fla. R. Civ. P. 1.630(b) (2016). Additionally, “[wjhen the complaint seeks a writ directed to ... a governmental or administrative agency, a copy of as much of the record is necessary to support the plaintiff’s complaint must be attached.” Id. (emphasis added).

Here, the defendant did not attach to his petition any record to support his petition. Thus, the circuit court’s denial of the petition was correct, albeit for the wrong reason. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the.judgment in the record”).

However, our affirmance is without prejudice. In support of this appeal, the defendant included in his appendix an excerpt of a deposition taken from one of the officers involved in the underlying investigation. In that excerpt, the officer testifies that he “requested that the weapon be processed for latent fingerprints, and the results of that processing was [sic] negative.” That excerpt was not attached to the defendant’s petition or otherwise presented to the circuit court, and thus was not preserved.

If the defendant files a new petition attaching the deposition excerpt, we leave it to the circuit court to decide whether such new petition creates a contested issue requiring an evidentiary hearing. See Hollis v. Massa, 211 So.3d 266, 268 (Fla. 4th DCA 2017) (“Where there is a contested issue regarding whether an official is in possession of the requested materials, it is error for a trial court to deny a petition for writ of mandamus without conducting ah evidentiary hearing.”).

Affirmed without prejudice.

Damoorgian and Forst, JJ., concur.


author: Klingensmith, J.

text:
    Jonathan Mitchell DWORK a/k/a Jonathan M. Dwork, Appellant, v. EXECUTIVE ESTATES OF BOYNTON BEACH HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D16-1698
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]

      Jonah M. Wolfson of Wolfson Law Firm, LLP,'Miami, for appellant.
    Peter J. Sosin of Sosin Law, PLLC, Boca Raton, for appellee.
   Klingensmith, J.

Jonathan M. Dwork (“appellant”) asks this court to decide whether Executive Estates of Boynton Beach Homeowners Association , (“HOA”) was obligated under section 720.305(2)(b), Florida Statutes (2013), to provide him with fourteen days’ notice of a hearing on alleged violations of maintenance requirements before imposing fines, or whether HOA could be entitled to money damages for unpaid fines so long as it substantially complied With the statute’s' notice provision. We find that strict compliance with the notice provision of the statute was a necessary prerequisite for HOA to impose fines. Accordingly, because HOA provided appellant with only thirteen days’ notic'e of the hearing, we reverse the money damages awarded to HOA for the unpaid fines.

Appellant owns and resides in a single family house within HOA’s development. HOA’s governing documents require all homeowners to keep them roofs and driveways clean and their fences in good condition. HOA notified appellant of his violar tions of these requirements multiple times over the preceding years, but he neither fixed them nor responded to any of the notices. In 2013, after an inspection confirmed the continued existence of these maintenance violations, HOA informed appellant of the violations by certified letter and provided a thirty-day cure period to bring the property into compliance. Not receiving an answer, HOA sent another certified letter providing for an additional fifteen days to comply. Appellant was completely unresponsive to HOA’s repeated attempts to contact and notify him.

On May 23, 2013, HOA' sent appellant another notice by both regular and certified mail informing him that thirteen days later on June 5 a hearing would také place before the fine committee to consider his maintenance violations. In compliance with its bylaws, HOA also posted the notice on a bulletin board at the development’s clubhouse, Again, the copy of the notice sent by certified mail’ was returned unclaimed. The fíne committee meeting commenced as scheduled on June 5, with the committee voting to impose fines on appellant for three violations, HOA’s board ratified the committee’s decision on June 25. Two days later, HOA sent appellant another letter, informing him of the committee’s decision and that starting on July 2, he would be fined $25 per day for each of the three violations if they were not remedied. As was the practice, appellant neither responded to the letter nor remedied the violations.

On September 5, 2013, HOA’s attorneys mailed appellant a letter demanding payment of the fines and informing him that a lien would be recorded on his property if the fines remained unpaid. Appellant neither responded nor remedied the violations. On January 27, 2014, HOA’s attorneys mailed appellant another letter informing him that they were recording a lien on his property for $7,500.00 as the full amount of the accrued fines, which was the maximum allowed ($2,500.00 fine for each violation), plus fees and costs incurred, totaling $8,135.00. This certified letter also went unclaimed. On January 29, 2014, the clerk recorded the lien on appellant’s property in the public records. Appellant never contacted HOA regarding the lien.

HOA then filed a two-count complaint against appéllant for foreclosure and damages, as well as attorney’s fees and costs. The first count sought to foreclose on the claim of lien for fines imposed as assessments for violations of HOA’s declaration of covenants, articles of incorporation, and rules. The second count sought ⅜ judgment for money damages in the amount of $7,500 for failure to pay those same fines. The cause went to a non-jury trial in April 2016, whereupon the court entered - final judgment. On the first count, the court denied foreclosure since the thirteen-day notice provided to appellant by HOA did not comply with the fourteen-day notice provision of section 720.305(2)(b) or HOA’s declarations and bylaws, thereby rendering the HOA unable to enforce its claim of lien against appellant’s property. However, despite HOA’s failure to strictly comply with the statutory notice provision, the court awarded money damages to HOA on its second count, reasoning that the “equities of this cause [were] with [HOA] and against [appellant].” The court also granted HOA entitlement to reasonable fees and costs. This appeal followed.

As this is a matter of statutory interpretation, we review the application of section 720.305 de novo. Miles v. Parrish, 199 So.3d 1046, 1047 (Fla. 4th DCA 2016).

At the time when HOA sent appellant the hearing notice, section 720.305(2)(b) provided that “[a] fine or suspension may not be imposed without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee.”

As to the first count for foreclosure on the claim of lien, the court properly denied relief. Pursuant to section 720.305(2)(b), HOA was required to provide appellant with at least fourteen days’ notice of the fine committee hearing.

Section 720.305(2)(b) is protective, and the notice requirement functions as a condition precedent to the attachment of a lien. This time requirement for the notice is no mere technicality. Failure to provide sufficient time to prepare a defense to a claim of violation deprives the homeowner of due process, thus negating the validity of any resulting lien obtained from such noncompliance.

Nothing in the wording of the statute implies 'that compliance with the time requirement is discretionary. Since section 720.305(2)(b) is clear and unambiguous, the statute must be strictly construed. See Miles, 199 So.3d at 1048 (“As with the interpretation of any statute, the starting point of analysis is the actual language of the statute. If the. language is clear and unambiguous, there is no need to resort to the rules of statutory construction; the statute must be given its plain and obvious meaning.” (quoting Conservation All. of St. Lucie Cty., Inc. v. Fla. Dep’t of Envtl. Prot., 144 So.3d 622, 624 (Fla. 4th DCA 2014)) (internal quotation marks omitted)).

The Florida Supreme Court has held that liens which are “purely creatures of statute” can only be acquired, created, or attached to property if the statutes from which they derive are strictly followed. See Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 281 (Fla. 1992); Stresscon v. Madiedo, 581 So.2d 158, 160 (Fla. 1991) (“Because .the acquisition of a mechanic’s lien is purely statutory, there must be strict compliance with the mechanics’ lien law in order to acquire such a lien.”); see also Stock Bldg. Supply of Fla., Inc. v. Soares Da Costa Constr. Servs., 76 So.3d 313, 316 (Fla. 3d DCA 2011); Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006) (“A construction lien is ‘purely a creature of the statute,’ and because it is of this nature, persons seeking its benefits must strictly comply with the requirements of the construction lien law.”).

HOA argues that substantial compliance with section 720.305(2)(b) was sufficient, especially since appellant was not prejudiced by the lack of an extra day’s notice. Here, however, the substantial compliance argument fails because the statute specifically requires without exception at least fourteen days’ written notice of a scheduled hearing. As the Stresscon court observed in holding that nothing in the language of section 713.16(2), Florida Statutes, permitted “either substantial compliance or lack of prejudice to be considered in determining the validity of a [mechanics’] lien”:

The fact that no prejudice has been nor can be shown is not the determining factor in this case; nor is it significant that' Stresscon substantially complied with the mechanics’ lien law. The courts have permitted substantial compliance or adverse effect to be considered in determining the validity of a lien when there are specific statutory exceptions which permit their consideration.

581 So.2d at 160 (emphasis added).

Section 720.305 does not contain any “specific statutory exceptions which permit” the trial court to consider substantial compliance with the notice requirement or lack of prejudice to the person sought to be fined.

Where a statute’s language is clear and unambiguous, the power to construe it does not exist. Cimino v. Am. Airlines, Inc., 183 So.3d 1242, 1244 (Fla. 4th DCA 2016). Because section 720.305(2)(b) is unambiguous as to its fourteen-day written notice requirement and does not contain any exceptions permitting considerations of substantial compliance or lack of prejudice, we must reject HOA’s contention that its thirteen days’ written notice to appellant sufficed to satisfy the statute’s straightforward notice requirement.

Where notice does not meet that requirement, a lien under this statute cannot attach to property. The trial court was therefore correct in ruling that proper notice had to be given by HOA in strict compliance with the statutory requirements to perfect its entitlement to a lien. Yet, for these same reasons, the trial court erred in awarding money damages to HOA for unpaid fines based on what it perceived to be the “equities” of the¡ case, Section 720.305(2)(b) explicitly provides that no fine may be imposed without at least fourteen days’ notice to the person sought to be fined. The statute does not provide, a basis for the court to fashion an equitable remedy. Here, the court , based its $7,500.00 award to HOA on the maximum amount of accrued fines that HOA could impose; but without strict compliance with the notice provision of the statute, HOA’s imposition of those fines were null.

Additionally, the substantial compliance argument is inapplicable because as the party seeking affirmative relief under the lien statute, HOA had to strictly comply with the statute’s provisions. See Hiller v. Phoenix Assocs. of S. Fla., Inc., 189 So.3d 272, 274 (Fla. 2d DCA 2016); Sasso Air Conditioning, Inc. v. United Cos. Lending Corp., 742 So.2d 468, 470 (Fla. 4th DCA 1999).

In other contexts, a procedural irregularity regarding notice that does not injure or harm. the complaining party might not result in setting aside a claim. Generally, notice provisions of a statute should be applied in a way to further the main purpose of those requirements; that is, to apprise interested parties of the pen-dency of the action and-afford them an opportunity to present their objections and defenses at a hearing. The evidence in this case was clear that appellant had actual notice of the hearing, yet continued with his longstanding practice of ignoring it in the same way he did with all the prior notices. While the trial court was correct in its view that the equities in this case certainly favored HOA, case law nonetheless compels us to hold that HOA was required to strictly comply with the dictates of section 720.305(2)(b) to perfect its ability to impose and collect the fines. Accordingly, we. reverse the final judgment and remand for entry of final judgment in favor of appellant.

Reversed and Remanded.

May and Kuntz, JJ., concur.

      . While section 720.305(2)(b) has since been amended, the fourteen-day notice provision has not.


text:
    TOWER HILL PREFERRED INSURANCE COMPANY, Appellant, v. Jesus CABRERA, Appellee.
    No. 4D16-220
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Scot E. Samis and Ashley R. Kellgren of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for appellant.
    Paul B. Feltman of Alvarez, Carbonell, Feltman & DaSilva, PL, Coral Gables, for appellee.
   Per Curiam.

The appellant challenges a final judgment, contending that the court erred in admitting store receipts and photocopies of checks into evidence. We affirm, applying the tipsy coachman doctrine. Where store receipts have distinctive- logos and are identified by the purchaser as the receipts of the actual items purchased at the store by the purchaser, they are sufficiently authenticated and admissible to corroborate the testimony of the purchaser regarding the purchase. See Gosciminski v. State, 132 So.3d 678, 700 (Fla. 2013). Photocopies of cancelled checks are admissible as a duplicate of the original. See § 90.953, Fla. Stat. (2015); Pa. Blue Shield v. Wolfe, 575 So.2d 1361, 1363 (Fla. 3d DCA 1991). The trial court did not err in admitting the evidence. Moreover, as the documentary evidence was cumulative to the precise facts of the purchases to which the appellee and his wife, the purchasers, testified, any error in the admission of the evidence was harmless. Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014).

Affirmed,

Warner, Levine and Forst, JJ., concur.

      . Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999) (holding that even though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling).


author: Per Curiam. ’

text:
    Calvin WEATHERSPOON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2775
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Ira Karmelin, West Palm Beach, for appellant. •
    Pamela Jo .Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

Per Curiam. ’

Pursuant to the opinion of the supreme court in Weatherspoon v. State, 214 So.3d 578 (Fla. 2017), we reverse appellant’s convictions for attempted murder and remand for a new trial. We affirm appellant’s conviction for robbery.

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


text:
    Alphonso DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0528
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]

      Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, .Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He raises two issues on appeal: (1) a challenge to the sufficiency of the evidence, and (2) a procedural error that occurred during resen-tencing.

We affirm the denial of the challenge to the sufficiency of the evidence without further comment. This could have been raised on direct appeal and, therefore, is not appropriate in a Rule 3.850 motion. See, e.g., Childers v. State, 782 So.2d 946, 947 (Fla. 4th DCA 2001).

As to the second issue, the State properly concedes error. By his Rule 3.850 motion, the Defendant challenged the sentencing scoresheet and sought resentenc-ing. The scoresheet was corrected and, while the court agreed resentencing was required, the Defendant argues he was denied effective assistance of counsel because his public defender was appointed immediately prior to resentencing and had no opportunity to confer with him or prepare to represent him. The Defendant also argues that the trial court erred by treating the resentencing as a ministerial proceeding and denying him the opportunity to present mitigation, allocution, or argument before determination of sentence. We agree.

We find that the Defendant was not afforded a de novo resentencing hearing. Wilson v. State, 947 So.2d 1225, 1226 (Fla. 1st DCA 2007). As the Fifth District recently noted, “the Florida Supreme Court has consistently held that ‘resen-tencing proceedings must be a ‘clean slate,’ meaning that the defendant’s vacated sentence becomes a ‘nullity’, and his ‘resen-tencing should proceed de novo on all issues bearing on the proper sentence.’” Branton v. State, 187 So.3d 382, 385 (Fla. 5th DCA 2016) (citing Galindez v. State, 955 So.2d 517, 525 (Fla. 2007) (Cantero, J., specially concurring)); see also Griffin v. State, 517 So.2d 669, 670 (Fla. 1987) (“The presence of the defendant is as necessary at resentencing as it was at the time of the original sentence so that the defendant has the opportunity to submit evidence relevant to the sentence .... ”).

In this case, the Defendant was not given that clean slate, nor the opportunity to submit evidence, Therefore, we accept the State’s concession of error and reverse for resentencing. We note that the Defendant also requests that we order further proceedings be before a different judge. We decline to address this request as the judge that presided over the prior hearing is no. longer a sitting judge.

Reversed and remanded with instructions.

May and Klingensmith, JJ., concur.


text:
    Carl Anthony ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-605
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Charles v. State, 204 So.3d 68 (Fla. 4th DCA 2016).

Ciklin, C. J., Taylor and May, JJ., concur.


author: Per Curiam. Warner, J.,

text:
    STATE of Florida, Petitioner, v. Fidel LOPEZ, Respondent.
    No. 4D17-425
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for petitioner.
    Howard Finkelstein, Public Defender, and Diarie M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale; and Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender,. West Palm Beach, for respondent.
   Per Curiam.

The State petitions for a writ of prohibition from the trial court’s order granting the defendant’s Motion to Prohibit Death as a Penalty in a pending first-degree murder prosecution. We have jurisdiction. State v. Jones, 209 So.3d 6, 9 (Fla. 2d DCA 2016). We grant the petition and quash the trial court’s order.

- The trial court precluded the State from death-qualifying a jury and from seeking the death penalty for two reasons: (1) the death penalty statute then in effect was found partially unconstitutional in Perry v. State, 210 So.3d 630 (Fla. 2016), so there was no constitutional procedure in place for imposing the death penalty;, and (2) the grand jury’s indictment did not allege the “aggravating factors” that the' State intended to prove at sentencing.

As to the trial court’s first reason, the Florida Supreme Court has since held that the death penalty statute could be constitutionally applied in pending prosecutions if the jury is unanimous in recommending death. Evans v. State, 213 So.3d 856 (Fla. 2017). The Florida Legislature enacted Chapter 2017-1, Laws of Florida (effective March 13, 2017), which amends thé portion of the statute found problematic in Perry to require a unanimous jury recommendation to impose a death sentence. Thus, on this point, the State has established a basis for relief.

As .to the second reason, a long line of precedent from the Florida Supreme Court .holds that aggravating factors need not be charged in an indictment. See, e.g., Miller v. State, 42 So.3d 204, 215 (Fla. 2010); Smith v. State, 151 So.3d 1177, 1182-83 (Fla. 2014); Tai A. Pham v. State, 70 So.3d 485, 496 (Fla. 2011); Rogers v. State, 957 So.2d 538, 554 (Fla. 2007); Coday v. State, 946 So.2d 988, 1006 (Fla. 2006); Porter v. Crosby, 840 So.2d 981, 986 (Fla. 2003); Kormondy v. State, 845 So.2d 41, 54 (Fla. 2003); Sireci v. State, 399 So.2d 964, 970 (Fla. 1981). Regardless, our review of the indictment in this case finds that it adequately alleged the aggravating factors necessary to support the death penalty. Accordingly, the State has. established a basis for relief on this point as well.

We grant the petition and quash the trial court’s order. This decision does not preclude defendant from raising claims relating to these issues on appeal if necessary.

Petition granted. Order quashed.

Ciklin, C.J., and Klingensmith, J., concur.

Warner, J., concurs specially with < opinion.

Warner, J.,

concurring specially.

I concur in the majority opinion, because the Florida Supreme Court has not overruled. its prior precedent that aggravating factors do not have to be alleged in the indictment.

The trial court reasoned that Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016), recognized that “aggravating factors,” which must be proven at sentencing in order to impose a death sentence, are “elements” of a “capital murder” offense. See Hurst, 202 So.3d at 53-54 (“CJ]ust as elements of a crime must be found unanimously by a Florida jury, all these findings necessary for the jury to essentially convict a defendant of capital murder—thus allowing imposition of the death penalty—are also elements that must be found unanimously by the jury.”). Therefore, the court concluded that, like other elements, these facts must be charged in the grand jury’s indictment.

Although Hurst’s reference to aggravating factors as elements may call into question the court’s prior rationale for its position that aggravating circumstances do not need to be pled in an indictment, the Florida Supreme Court has said that it does not silently overrule itself. Puryear v. State, 810 So.2d 901, 905-06 (Fla. 2002). Absent a clear statement from the Florida Supreme Court receding from its prior holdings, its precedent must be followed.


text:
    Arrington BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3433
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Arrington Brown, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, .West Palm Beach, for appellee.
   Per Curiam.

Appellant, Arrington Brown, appeals the trial court’s order summarily denying his timely rule 3.850 motion for postconvietion relief. He claims that his convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon pursuant to section 790.23, Florida Statutes (2004), violate the prohibition against double jeopardy. We agree.

This court has held that double jeopardy prohibits convictions for both possession of a firearm by a convicted felon and possession of ammunition by a convicted felon where the firearm and ammunition were possessed at the same time. Boyd v. State, 17 So.3d 812, 818 (Fla. 4th DCA 2009); Strain v. State, 77 So.3d 796, 797 (Fla. 4th DCA 2011). The record indicates that appellant simultaneously possessed the firearm and ammunition.

Accordingly, we reverse and remand for the trial court to vacate either of the convictions and resentence appellant on the remaining counts with a corrected score-sheet. Boyd v. State, 17 So.3d at 818; Gonzalez v. State, 123 So.3d 691 (Fla. 4th DCA 2013).

Reversed and remanded.

Ciklin, C.J., Damoorgian and Forst, JJ., concur.

      . Appellant did not waive his double jeopardy claim. He' entered an unbargained open plea without expressly waiving his right to bring the double jeopardy challenge. Novaton v. State, 634 So.2d 607, 609 (Fla. 1994); Labovick v. State, 958 So.2d 1065, 1068 (Fla. 4th DCA 2007).


text:
    Melissa J. KRIEBEL, Appellant, v. Nathalie PIEDRAHITA, Appellee.
    No. 4D16-1658
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Michael J. Alman and Jamie D. AJman of Greenspoon Marder, P.A., Fort Lauder-dale, for appellant.
    No appearance for appellee.
   Kuntz, J.

Melissa Kriebel appeals the court’s “Final Judgment of Injunction for Protection Against Repeat Violence” entered against her and in favor of Nathalie Piedrahita. The record before us does not substantiate two incidents of violence or stalking committed by Kriebel. Therefore, we reverse.

Kriebel asserts that this matter “is predicated on an extramarital affair between Ms. Piedrahita and Ms. Kriebel’s husband and the concomitant effects of Ms. Piedrahita’s incessant presence around Ms. Kriebel’s husband (not a party to the repeat violence action) during a time when Ms. Kriebel believed she and her husband were trying to reconcile their marriage.”

Viewed through that lens, it may not be surprising that Kriebel and Piedrahita do not get along. This animosity led Kriebel and Piedrahita to both seek injunctions for protection against repeat violence against the other.

The court held an evidentiary hearing on the competing injunction requests at which Kriebel, represented by counsel, and Piedrahita, appearing pro se, presented evidence as to the facts in their respective sworn petitions. Unfortunately we do not know the exact testimony given at the hearing because neither party retained a court reporter. Instead, five months after the hearing, Kriebel filed a motion for entry of statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Incorporated within the motion was an eleven page statement of the evidence prepared by counsel for Kriebel.

Absent approval of the statement of the evidence we would have lacked an adequate record to review the court’s order. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). At the same time, and as we have noted in the past, “[ejxpecting a trial judge to confirm the details of a trial, months and numerous other intervening trials later, where the parties do not agree, is not realistic.” Rivera v. Rivera, 863 So.2d 489, 490 (Fla. 4th DCA 2004).

In this case too, it was unrealistic for Kriebel to expect confirmation of her eleven-page statement of the evidence, especially more than five months after the evidentiary hearing. However, to the judge’s credit, the court was able to recall the details of the hearing. The court not only approved the statement of the evidence, but also added details that Kriebel had omitted.

The approved statement of the evidence indicates that the court entered injunctions against both parties based upon a finding “that the parties were unable to control themselves around each other and in order to maintain civility it was necessary to enter Final Injunctions for Protection Against Repeat Violence.” While it may be accurate to state that the parties were unable to control themselves around each other, the statute requires more before an injunction can issue. Power v. Boyle, 60 So.3d 496, 498 (Fla. 1st DCA 2011).

The statute “create[s] a cause of action for an injunction for protection in cases of repeat violence.” § 784.046(2), Fla. Stat. (2016). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(1)(b). Stalking is defined as “willfully, maliciously, and repeatedly5’ following, harassing, or cyberstalking another person. § 784.048(2).

The approved statement of the evidence demonstrates that Piedrahita established one incident of violence by battery and one incident of following. However, stalking requires repeatedly following, harassing, or cyberstalking, and Piedrahita only established one such incident. Having only presented evidence of one incident of following, Piedrahita failed to satisfy the requirements for stalking.

Based upon the approved statement of the evidence, Piedrahita failed to establish the statutory requirements of “two incidents of violence or stalking,” and the Final Judgment of Injunction for Protection Against Repeat Violence entered against Kriebel is reversed.

Reversed.

Ciklin, C.J., and Gross, J., concur.