text:
    Lawrence CORNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2543.
    District Court of Appeal of Florida, Third District.
    July 27, 2016.
    Lawrence Corner, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before SHEPHERD, EMAS and SCALES, JJ.
   PER CURIAM.

Lawrence Corner appeals a denial by the trial court ,of his motion to request permission to file a petition for writ of habeas corpus. In 2001, Corner was convicted of kidnapping and sexual battery. He was sentenced to life in prison for the kidnapping charge and fifteen years for the sexual battery charge. This Court affirmed the convictions and sentencing in Corner v. State, 868 So.2d 553 (Fla. 3d DCA 2004). Including both the direct appeal and the current appeal, Corner has filed in this Court fourteen post-conviction petitions or appeals. For the reasons set forth below, we affirm the trial court’s ruling and issue an order to show cause.

Underlying Corner’s current appeal is Corner’s allegation that he was not given a proper Miranda warning at the time of his arrest. This issue was raised in a motion to suppress and heard in an evidentiary hearing in November of 2000. The trial court denied Corner’s motion to suppress and Corner did not raise this issue on direct appeal. Corner, however, raised this issue fruitlessly in an earlier post-conviction petition for writ of habeas corpus. Corner v. State, 163 So.3d 1205 (Fla. 3d DCA 2015) (Table).

As the trial court points out in its order . on appeal, Corner is attempting to use the habeas corpus petition as . a disguised rule 3.850 motion. See Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (holding that a petition for writ of habeas corpus cannot substitute for an appropriate motion for post-conviction relief under rule 3.850). By treating Corner’s motion to request permission to file a habeas corpus petition as a rule 3.850 motion, the trial court determined that the motion is “legally insufficient, time-barred, successive, and conclusively refuted by the record.” We agree.

ORDER TO SHOW CAUSE

Corner is hereby directed to show cause, within forty-five days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, petitions, motions or other proceedings related to his criminal convictions and sentencing in circuit court case number F99-40037.

If Corner does not demonstrate good cause, any such further and unauthorized filings by Corner will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2015).

Affirmed. Order to show cause issued.

      . Corner v. State, 163 So.3d 1205 (Fla. 3d DCA 2015) (Table); Corner v. State, 151 So.3d 1255 (Fla. 3d DCA 2014) (Table); Corner v. State, No. 3D 14-921 (Fla. 3d DCA. Aug. 5, 2015); Corner v. State, No. 12-2537 (Fla. 3d DCA Mar. 4, 2013); Corner v. State, 90 So.3d 292 (Fla. 3d DCA 2012) (Table); Corner v. State, 59 So.3d 120 (Fla. 3d DCA 2011) (Table); Corner v. State, 35 So.3d 34 (Fla. 3d DCA 2010) (Table); Comer v. State, 27 So.3d 669 (Fla. 3d DCA 2010) (Table); Corner v. State, 17 So.3d 1235 (Fla. 3d DCA 2009) (Table); Comer v. State, 928 So.2d 1233 (Fla. 3d DCA 2006) (Table); Corner v. State, 917 So.2d 975 (Fla. 3d DCA 2005); Corner v. State, 913 So.2d 736 (Fla. 3d DCA 2005) (Mem).

      . We note that this case represents the third effort in as many years that Corner has tried to evade the limitations of a rule 3.850 motion through’ an inapt habeas corpus' petition. Corner, 163 So.3d 1205; Corner, 151 So.3d 1255.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Phillip FULTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1327.
    District Court of Appeal of Florida, Third District.
    July 27, 2016.
    Phillip Fultz, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SHEPHERD and SCALES, JJ.
   WELLS, Judge.

Phillip Fultz appeals from an order denying his Florida Rule of Criminal Procedure 3.850 motion in which he sought relief on four grounds. The first two grounds raise purported errors that occurred in 2012, when he entered a plea in this case. The second two grounds claim (1) that Fultz’ counsel was ineffective because he failed to mount any defense or adduce evidence to rebut the State’s claim that Fultz had violated the terms of his probation by (a) failing to pay the costs of supervision, and (b) by failing to participate in community service, and (2) that Fultz was found to have violated his probation on a claim not alleged in the probation violation affidavit.

We agree with the trial court that the plea colloquy appended to the order denying Fultz’ motion on the first two grounds conclusively refutes these claims. As to his claim that his counsel was ineffective for failing to present any defense to the claim that Fultz failed to pay the costs of supervision and perform community service as required, the transcript of the probation violation hearing filed with this court in conjunction with Fultz’ appeal from the order revoking his probation (appellate case number 3D13-2956) shows that Fultz was obligated as a condition of his probation to perform 150 hours of community service at a rate of 5 hours each month and to pay $103.72 per month toward the costs of supervision. That transcript further establishes that Fultz testified at the probation revocation hearing and admitted that he had performed no community service and that although he had been gainfully employed he had paid none of the costs of supervision as expressly ordered. According to Fultz’ own testimony, he had failed to comply with these conditions because he just was not taking them “seriously.” On this record, we agree that the court below was correct in denying his claim that he is entitled to relief because his attorney was ineffective.

The record from the probation revocation proceeding further confirms that Fultz’ probation was not revoked on a ground not alleged in the probation violation affidavit. That affidavit claimed, and the testimony was, that Fultz violated paragraph 7 of his probation order by failing to remain drug free. While paragraph 7 does contain two sentences, one requiring that he remain drug free, the other requiring that he refrain from frequenting places where intoxicants and drugs are used or sold, he was charged with violating the first sentence and based on testimony that he had tested positive for marijuana while on probation, the court below correctly determined that his probation should be revoked for this reason as well.

In sum, because all of Fultz’ claims are refuted by the record, we affirm the trial court’s order denying Fultz’ February 3, 2016, rule 3.850 motion for relief from the order revoking his probation.


author: PER CURIAM.

text:
    Johnny Lee HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-3173.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2016.
    Johnny Lee Hill, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WINOKUR, JAY, and WINSOR, JJ„ concur.


text:
    Robrico NEWBERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-0328.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2016.
    Robrico Newberry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, WETHERELL, and RAY, JJ., concur.


text:
    Annabella PINERA, Appellant, v. TARGET/SEDGWICK CMS, Appellees.
    No. 1D15-4077.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2016.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    David S. Gold and David B. Stauber of Litchfield Cavo, LLP, Fort Lauderdale, for Appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

In light of the Florida Supreme Court’s decision in Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla.2016), Appellant’s Motion for Rehearing, filed June 9, 2016, is granted, and our opinion rendered June 7, 2016, is withdrawn. This matter is remanded to the Judge of Compensation Claims (JCC) for reconsideration consistent with Westphal. The JCC also shall determine whether additional defenses asserted by the Appellees, if any, are appropriately raised and resolved under the circumstances of this case and the material change in the law represented by West-phal.

REVERSED and REMANDED.

WETHERELL and KELSEY, JJ., and DEMPSEY, ANGELA C., Associate Judge, concur.


author: SHEPHERD, J.

text:
    Jose CRUZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-2119.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.

      Jose Cruz, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, SHEPHERD and SALTER, JJ.
   SHEPHERD, J.

Having been prohibited from further pro se filings in the trial court challenging his sentence in lower court Case No. 92-20576A after numerous attempts, Jose Cruz petitions this Court directly for review of the sentence in this case. We deny the petition without further discussion.

ORDER TO SHOW CAUSE

Petitioner has unsuccessfully sought appellate review of the legality of his current sentence on many occasions, notwithstanding the fact that the same claims for relief previously have been raised, determined on the merits, and affirmed on appeal. While pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts, that right is not unrestricted and may be curtailed upon a finding that the party has abused the judicial process by the continued filing of successive or meritless collateral claims. ■ Accordingly, at this time, petitioner is ordered to show cause, within thirty (30) days of this order, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his conviction, judgment, and sentence in Case No. 92-20576A. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any further filings relating to Case No. 92-20576A, unless they have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

So ordered.


text:
    Vernon SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-167.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attornéy General, for appellee.
    Before WELLSi SALTER and EMAS, JJ.
   WELLS, Judge.

We affirm the designation of Vernon Scott as a sexual predator without prejudice to his filing a timely and appropriate motion to withdraw his underlying plea under Florida Rule of Criminal Procedure 3.850.

Affirmed.


text:
    Chris Eric CHATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-4671.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2016.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal. He contends that the evidence at trial was insufficient to sustain his conviction, and also that fundamental error was committed by the trial court when it considered the truthfulness of his testimony when imposing sentence. We affirm the first issue without further comment. With regard to the second issue, it is impermissible for a trial judge to consider a defendant’s veracity when rendering a sentencing decision. Robinson v. State, 637 So.2d 998, 999 (Fla. 1st DCA 1994); Carswell v. State, 75 So.3d 419 (Fla. 1st DCA 2011). Before announcing Appellant’s sentence, the court stated:

Part of justice is the' justice system. And what I find offensive, not personally, doesn’t really affect me personally, but from the system’s standpoint is [Na-kia’s] blatant lying from the stand and your lying to me today because you’re not telling me the truth, the whole truth and nothing but the truth. You’re handing me a pile of dung. I mean, you know, I don’t believe for a second whatever the story is that you just followed her down the road, or she followed you down the road, or she followed you, or whatever. I mean, it’s just beyond belief. It’s just not believable. It’s not believable that you didn’t have the fight ...
Be that as it may, [Appellant], you know, you’ve just got a history of getting in trouble and being in trouble and, you know, if what you say is true, that you’re a devoted family then what were you doing with the [the victim]. If what you’re saying is that you were a devoted family man then why put yourself in the position in the first place? If you’re such a devoted family man, why were you even fighting with [the victim], knowing that with your record, and if you say [the victim’s] been out to get you for all of this time, why would you put yourself in a position where she could get you again. I mean, you know, you just—your explanations defy belief. So I think that the maximum sentence possible is what is appropriate here.

(Emphasis added.) Because the trial court expressly considered these improper factors in sentencing, Appellant was denied due process, and fundamental error was committed. See also, Smith v. State, 62 So.3d 698, 699 (Fla. 2nd DCA 2011); Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010). Accordingly, we affirm Appellant’s conviction, but remand for resen-tencing before a different judge.

AFFIRMED- in part, REVERSED in part, and REMANDED for resentencing.

MAKAR, JAY, and M.K. THOMAS, JJ., concur.


text:
    Johnny TYSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-1272.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2016.
    Johnny Tyson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 30, 2015 order denying relief under rule 3.850 in Leon County Circuit Court case number 2010-CF-224. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., concur.


text:
    Joseph R. WATTS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2281.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2016.
    Joseph R. Watts, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of Appellant’s response to the Court’s order of May 19, 2016, the Court has determined that the appeal is untimely. See Joseph v. State, 157 So.3d 546, 548 (Fla. 1st DCA 2015). Accordingly, the appeal is DISMISSED.

B.L. THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Carlton BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-4156.
    District Court of Appeal of Florida, First District.
    Nov. 4, 2016.
    Carlton Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., concur.


author: LOGUE, J. WELLS, Judge

text:
    Willie LUMSDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2324
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LOGUE.
   ON REMAND

LOGUE, J.

This case returns to us on remand following the Florida Supreme Court’s decisions in State v. Montgomery, 39 So.3d 252 (Fla. 2010), and Haygood v. State, 109 So.3d 735 (Fla. 2013). Willie Lumsdon, the defendant, argues that his second-degree murder conviction must be reversed because the standard manslaughter by act instruction read to the jury was the same instruction held to be erroneous in Montgomery. The State agrees the instruction was erroneous. Citing to Dawkins v. State, 170 So.3d 81 (Fla. 3d DCA 2015), however, the State contends that the error was cured because the jury was also instructed on manslaughter by culpable negligence and the evidence could reasonably support so finding. We agree with the defendant. Because he objected to the erroneous instruction on manslaughter by act, and the State cannot show that the error was harmless beyond a reasonable doubt, we reverse and remand for a new trial on second-degree murder. See Haygood, 109 So.3d at 742; Montgomery, 39 So.3d at 259.

The State’s reliance on Dawkins is misplaced. In Dawkins, the defendant did not object to the erroneous instruction. For this reason, the erroneous instruction was reversible only if it reflected fundamental error—error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Dawkins held that, where the jury was also instructed on manslaughter by culpable negligence and the evidence could reasonably support a finding of culpable negligence, the erroneous instruction on manslaughter by act was “not per se fundamental error.” 170 So.3d at 83. The determination that the error was not fundamental falls far short of holding the error was not harmful.

By contrast, here, the defendant objected to the flawed instruction on manslaughter by act. This objection preserved the issue for appeal and triggered the harmless error analysis, which places the heavy burden on the State, as the beneficiary of the error, to show “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986); see also Barnes v. State, 108 So.3d 700, 703 (Fla. 1st DCA 2013) (‘Where a trial court erroneously fails to give a requested special instruction that it should have given, and the requesting party makes a contemporaneous objection, the State has the burden, as the beneficiary of the error, to prove beyond a reasonable doubt that it was harmless error not to give the instruction.”). In this case, the State cannot meet its heavy burden because the flawed instruction pertained to a disputed element of the offense (the defendant’s intent) and the defendant was convicted of a crime only one step removed from the necessarily lesser included offense of manslaughter by act. See Haygood, 109 So.3d at 742; Montgomery, 39 So.3d at 259; Molina v. State, 150 So.3d 1280, 1284 (Fla. 3d DCA 2014) (“[U]nder Haygood, where there are more than one lesser included offenses that are no more than one step removed from the crime for which the defendant is convicted, a trial court’s correct instruction on one does not cure or render harmless an erroneous instruction on another.”).

Affirmed in part, reversed in part, and remanded for a new trial.

SHEPHERD, J., concurs.

WELLS, Judge

(concurring)

I agree with the majority’s decision to affirm Willie Lumsdon’s conviction and sentence for throwing a deadly missile and to reverse his conviction and sentence for second degree murder, but do so for the following reasons.

This case arises from a shooting death that occurred near or on a crowded off-ramp of 1-95, where two groups of young men travelling in separate vehicles engaged in verbal repartee and tossed items between cars following which Lumsdon admittedly fired off a shot killing one of the occupants in the other car. See Lumsdon v. State, 29 So.3d 390, 392 (Fla. 3d DCA 2010), quashed by, 160 So.3d 896 (Fla. 2014) (“Lumsdon I”). As pertinent here, Lumsdon was charged with second degree murder with a firearm in which it was properly alleged that Lumsdon’s acts, while imminently dangerous and evincing a depraved mind, were committed without an intent to kill:

WILLIE J LUMSDON, on or about May 30, 2004, in the County and State aforesaid, did unlawfully, feloniously and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill MALCOM MARSHALL, a human being, by SHOOTING MALCOM MARSHALL ....

Whereas, Lumsdon claimed that fearful of the occupants of the other car, he acted in self-defense by shooting a gun into the air as a warning. Id.

In July of 2007, Lumsdon was tried on these charges. In addition to being instructed that “Second Degree [Murder] includes the lesser crime[ ] of Manslaughter,” the jury was instructed that to find Lumsdon guilty of second degree murder it had to find that Lumsdon unlawfully caused Marshall’s death by committing an imminently dangerous act demonstrating a depraved mind:

Before you can find the defendant guilty of Second Degree Murder [Ct. 1], the State must prove the following three elements beyond a reasonable doubt:
1. MALCOLM MARSHALL, is dead.
2. The death was caused by the criminal act of WILLIE J. LUMSDON.
3. There was an unlawful killing of MALCOLM MARSHALL by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

The jury also was given that part of the Florida Standard Jury Instruction in Criminal Cases 7.7 in effect at that time on manslaughter by culpable negligence, and, over objection, that part of the same instruction on manslaughter by act:

To prove the crime of Manslaughter, as a lesser-included offense of Ct 1, the State must prove the following two elements beyond a reasonable doubt:
1. MALCOLM MARSHALL is dead.
a. WILLIE J. LUMSDON intentionally caused the death of MALCOLM MARSHALL, or
b. The death of MALCOLM MARSHALL was caused by the culpable negligence of WILLIE J. LUMSDON

The jury returned a verdict in pertinent part finding Lumsdon guilty of second degree murder as charged.

On appeal, Lumsdon raised four issues all of which ultimately were rejected by this court. See Lumsdon I, 29 So.3d at 391-393. However, following oral argument, Lumsdon filed supplemental briefing relying on Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which then was pending on certification in the Florida Supreme Court, arguing entitlement to reversal of his conviction for second degree murder. While we found no merit to his argument, “[t]o preserve Lumsdon’s rights,” should the Florida Supreme Court determine that the manslaughter by act instruction given in this case was fundamentally flawed, we certified conflict with Montgomery. See Lumsdon I, 29 So.3d at 393 n.1.

In State v. Montgomery, 39 So.3d 252, 259-60 (Fla. 2010), the Florida Supreme Court held that the manslaughter by act instruction at issue here was flawed because it required the jury to determine that the defendant intended to kill the victim—an element not required by the manslaughter statute—rather than determining whether the defendant intended to commit an act which cause the victim’s death:

In conclusion we approve the decision of the First District Court of Appeal to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim .... We [further] ... hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim ... [and] that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the victim.

Because no objection to the flawed instruction had been lodged in the court below, and because “manslaughter is just one step removed from second-degree murder,” the Montgomery court found “fundamental error occurred ... which was per se reversible.” Id. at 259. Three years later, the Florida Supreme Court in Haygood v. State, 109 So.3d 735, 741 (Fla. 2013), held that giving a manslaughter by culpable negligence instruction along with the manslaughter by act instruction rejected in Montgomery “does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of second-degree murder and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.” Following these decisions, our decision in Lumsdon I was quashed and this matter remanded to us for reconsideration in light of Montgomery and Haygood. Lumsdon v. State, 160 So.3d 896 (Fla. 2014).

On remand, we requested and received supplemental briefs and heard oral argument. The State, citing to Haygood, argues that because there was some evidence adduced below that could support a finding of culpable negligence, that Lumsdon is not entitled to a new trial. I disagree, because here, unlike Montgomery and Haygood, an objection to the flawed instruction was lodged. And, as this court in Lugones v. State, 147 So.3d 1081, 1082 (Fla. 3d DCA 2014), confirmed where an objection had been lodged, the burden falls on the State under State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986), to establish beyond a reasonable doubt that giving this instruction did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction:

Lugones objected to this instruction [on attempted manslaughter by act which required a finding that the defendant intended to cause the death of the victim] on the basis that the intent to kill is not an element of attempted manslaughter. The court nevertheless gave the instruction to the jury.
ANALYSIS
The first issue is whether the use of the standard jury instruction on attempted manslaughter was reversible error. It was. In the first place, the standard jury instruction was wrong. Intent to kill is not an element of attempted manslaughter. ..,
The second issue is whether the trial court’s mistake of giving the wrong jury instruction constituted reversible error. Because Lugones timely objected to the instruction the State has the high burden of proving that the error was harmless. .,. [S]ee also State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

See also Williams v. State, 123 So.3d 23, 24 (Fla. 2013) (applying the same reasoning to the attempted manslaughter by act instruction as that applied in Montgomery to the manslaughter by act instruction).

Because I find that the State cannot meet this high burden in this case, I agree that Lumsdon’s conviction for second degree murder must be reversed and this matter remanded for a new trial on that count.,

      . The standard jury instruction for manslaughter by act has since been amended to exclude the element of "intent to kill." In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction 7.7, 75 So.3d 210, 211 (Fla. 2011). The trial court did not have the benefit of this change at the time it rendered its decision.

      , The defendant requested the instruction on manslaughter by culpable negligence. The evidence supported that instruction, as well as an instruction on second-degree murder and manslaughter by act, which was requested by the State.

      . We affirm without discussion the • defendant’s conviction of throwing a deadly missile.

      . In coming to this conclusion, I necessarily reject the State's argument that the evidence in this case supports not only a finding of manslaughter by act, but also reasonably supports a finding of culpable negligence so as to "cure” the error in giving the flawed manslaughter by act instruction. See Haygood, 109 So.3d at 741. Indeed, in light of Lums-don’s concession in his supplemental brief on remand that the "facts in this case ... did not reasonably support culpable negligence,” and'that the "only viable lesser offense, one-step removed from second-degree murder, would have been manslaughter by act, an offense for which the jury was not properly instructed,” I agree that the "cure” considered in Haygood does not apply in this case. See id. ("Based on our decision in Montgomery, and the principles underlying that decision, we conclude that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of second-degree murder and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.”); see also Lugones, 147 So.3d at 1083 ("Obviously, a fundamental error is not harmless. Therefore, giving the wrong instruction was reversible error."’).

      . I also concur .in the majority’s determination that Lumdori’s conviction for throwing a deadly missile should be affirmed.


author: Gerber, J,

text:
    Calvin WILLOUGHBY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1524
    District Court of Appeal of Florida, Fourth District.
    December 14, 2016
    Carey Haughwout, Public Defénder, and Tatjana Ostapoff, 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.
   Gerber, J,

The defendant appeals from his convictions for burglary of a dwelling and grand theft of property valued at more-than $300, The defendant argues the trial court erred in two respects: (1). denying the defén-dant’s motion for mistrial when the trial court unilaterally and errantly did not allow defense counsel to ask prospective jurors during voir dire if, in the absence of any evidence from the State, they could “believe” the defendant was innocent; and (2) denying the defendant’s motion for judgment of acquittal on the grand theft charge when the state failed to prove that the value of the stolen property was more than $300. On the first argument, we affirm. On- the second argument, we agree with the defendant and therefore reverse the grand theft conviction and remand to enter judgment and sentence for petit theft.

We write to address only the first argument. We present this opinion in three parts:

1. the procedural history; -
2. why the court erred in not allowing defense counsel to ask prospective jurors during voir dire if, in the absence of any evidence from the State, they could “believe” the defendant was innocent; and
3. why the court did not err in denying the defendant’s motion for mistrial.

1. Procedural History

During voir dire, the trial court instructed the jury on the presumption of innocence as follows:

In the United States, all defendants are presumed innocent. The presumption of innocence remains with the defendant throughout the course of the trial. It is up to the State to prove that the defendant is guilty beyond a reasonable doubt. Right now, the defendant is presumed innocent and he will remain so, unless and until the State proves otherwise. If I were to ask you right now to reach a verdict, your verdict would have to be not guilty. That is because, at this point, the State has not presented any evidence against the defendant.

During defense counsel’s questioning of the venire, defense counsel reiterated the presumption of innocence and began asking individual prospective jurors if, before the presentation of evidence, “Do you believe this man is innocent?” The first eight prospective jurors answered yes. When defense counsel questioned the ninth prospective juror, the following discussion occurred:

Defense Counsel: Do you believe this man is innocent?
Ninth Prospective Juror: Presumably. Defense Counsel: Okay. Playing with the words, but okay.
Ninth Prospective Juror: Presumed innocent.
Court: Actually, “presumed” is the word that comes straight from the instruction. Not “believe” ....

(quotation marks added). Defense counsel requested to come sidebar, where the following discussion occurred:

Defense Counsel: If they don’t believe he’s innocent, they don’t believe in the law.
Court: I think this confuses'the line of questioning. The State didn’t object but the ljuror] brought it up. There’s nowhere in the jury instruction where it says what you believe, what they believe. Defense Counsel: ... [The juror] didn’t bring it up.
Court: [The juror] just said it and you said played on the words.
Defense Counsel: ... [T]his bench is now taking a position that—I mean, taken the State’s position that clearly, the State did not object....
Court: I guess for you to ask them what they believe is not relevant. They must presume him innocent at this point. You must presume him innocent. What their personal belief is—
Defense Counsel: I’m not asking for their personal belief.
Court: Do you believe that—
Defense Counsel: Do you believe that he’s innocent right now. That’s perfectly permissible.
Court: I disagree. I’m going to ask you to read it straight from the book on the presumption. ...
Defense Counsel: Judge, I find this highly irregular that the Court is doing this without the State objecting and 1 am requesting a mistrial.

(emphasis added).

The court overruled defense counsel’s objection without ruling on his motion for mistrial. The court then instructed defense counsel: “Read it straight from the book.” Instead of doing so, defense counsel asked the remaining prospective jurors if they “presume[d] this man innocent.”

At the end of defense counsel’s questioning, defense counsel renewed his motion for mistrial based on the trial court having intervened to prevent him from asking prospective jurors if, before the presentation of evidence, they could “believe” the defendant was innocent. Defense counsel pointed the court to Florida Standard Jury Instruction (Criminal) 3.7, which states, in pertinent part:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent,

(emphasis added). The court denied the motion for mistrial.

This appeal followed. The defendant argues the trial court erred in denying his motion for mistrial when the trial court unilaterally and errantly did not allow the defendant’s counsel to ask prospective jurors if, in the absence of any evidence from the State, they could “believe” the defendant was innocent. We review the trial court’s denial of the defendant’s motion for mistrial for an abuse of discretion. See Evans v. State, 177 So.3d 1219, 1234 (Fla. 2015) (“[W]here the trial court denied a motion for mistrial, we review that ruling under an abuse of discretion standard.”).

2. Why the court erred in not allowing defense counsel to ask prospective jurors during voir dire if, in the absence of any evidence from the State, they could “believe” the defendant was innocent.

As an initial matter, we conclude the trial court erred in not allowing the defendant’s counsel to ask, from the ninth prospective juror forward, if, in the absence of any evidence from the State, she could “believe” the defendant was innocent. Florida Standard Jury Instruction (Criminal) 3.7 (2013) states, in pertinent part:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

Fla. Std. Jury Instr. (Crim.) 3.7 (2015) (emphasis added). Given Instruction 3.7’s use of the word “believe,” the court should have allowed the defendant’s counsel to ask prospective jurors if, in the absence of any evidence from the State, they could “believe” the defendant was innocent.

3. Why the court did not err in denying the defendant’s motion for mistrial.

The court’s error was not so prejudicial as to require a mistrial. See Pagan v. State, 830 So.2d 792, 814 (Fla. 2002) (“A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.”). Defense counsel, without interruption,- was permitted to ask eight prospective jurors if, before the presentation of evidence, “Do you believe this man is innocent?” Those prospective jurors answered yes. After the court errantly prevented defense counsel from asking that question to the remaining prospective jurors, defense counsel still was able to ask the remaining prospective jurors if they “presumed” the defendant was innocent. The defendant has not argued that the court’s error altered his jury selection strategy or tainted the jury which was selected. And. during the court’s final instructions, the court read Instruction 3.7, including its admonition: “The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent.”

As for the court having intervened without the state having objected to defense counsel’s “believe” question, we conclude the court’s action was not so prejudicial as to require a mistrial. The defendant relies on Bursten v. United States, 395 F.2d 976 (5th Cir. 1968), for the proposition that reversible error occurs when a trial court habitmlly intervenes at trial.

However, Bursten is distinguishable. In Bursten, “[t]he thrust of [the defendant’s] contention [was] that [the trial court] intervened to such an extent (on an average of at least once in each three pages of the Transcript) that [the defendant] was dented the right to a fair trial guaranteed to him by the Constitution.” Id. at 982. Among the trial court’s more prejudicial comments in the jury’s presence were:

• “If [defense counsel] doesn’t prove it, I hope the jury will hold it against him, because he shouldn’t make that statement unless he has some proof.”
• “[Defense counsel], now get back to your own case, if you have a case.”
• “[Defense counsel], sit down and let the other attorney take over if you don’t know how to .cross examine this man.”

Id. at 983-84.

In reversing for a new trial, the appellate court stated:

If a trial court continually intervenes so as to unnerve defense counsel and throw [counsel] off balance, in a supposedly-fair trial, and causes [counsel] not to devote [counsel’s] best talents to the defense of [the] client, then this is ground for reversal, no matter what counsel’s experience and equipoise may be. Even if there is a basis for some criticism of overpartisanship[ ] of defense counsel, this does not justify unwonted and unnecessary continuous interruption.

Id, at 983 (emphasis added).

Here, unlike in Bursten, the court did not continuously intervene or interrupt during defense counsel’s voir dire. The court made one ruling regarding how the defendant’s counsel was allowed to phrase a question to potential jurors regarding the defendant’s presumption of innocence. The fact that the trial court errantly overlooked Instruction 3.7 in making this ruling ultimately did not unreasonably restrict defense counsel’s voir dire on the defendant’s presumption of innocence or prejudice defense counsel in the jury’s eyes.

These circumstances distinguish this case from other cases before this court in which a trial court’s more egregious actions amounted to error. See Campbell v. State, 812 So.2d 540, 542-43 (Fla. 4th DCA 2002) (trial court abused its discretion in allowing the state forty-five minutes and the defense only twenty minutes for voir dire, instructing defense counsel to “stay away from anything I’ve gone over,” and ultimately prohibiting defense counsel from questioning the jurors about the state’s burden of proof, the defendant’s presumption of innocence, and the defendant’s right to remain silent); Brown v. State, 678 So.2d 910, 911-13 (Fla. 4th DCA 1996) (trial court prejudiced defense counsel by repeatedly criticizing defense counsel’s voir dire and criticizing defense counsel’s closing argument; court’s interjection conveyed that defense counsel had done something improper, and forcing defense counsel to apologize in jurors’ presence created stigma intensified by judge’s statement that he had never heard so much improper closing argument).

Conclusion

Based on the foregoing, the trial court did not abuse its discretion in denying the motion for mistrial. We affirm the defendant’s burglary conviction, reverse his grand theft conviction, and remand for the trial court to enter judgment and sentence for petit theft.

Affirmed in part, reversed in part, and remanded.

Levine and Klingensmith, JJ., concur.


author: Per Curiam.

text:
    Sandra PINNOCK and Gina Ollivier, Appellants, v. BANK OF NEW YORK MELLON, Appellee.
    No. 4D15-4257
    District Court of Appeal of Florida, Fourth District.
    December 21, 2016
    Faequa A. Khan of Law Offices of Daryl L. Jones, P.A., Miami, for appellants.
    Roy A. Diaz of SHD Legal Group, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed., The trial court did not abuse its discretion in allowing a witness to testify who was disclosed after the deadline set in the pre-trial order. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981). The use of the' late disclosed witness (the loan servicer) did not “substantially endanger the fairness of the proceeding,” particularly because her testimony was largely cumulative of the testimony from the witness for the current loan servicer. Id. at 1314. We also conclude that the appellee proved standing through the testimony of the loan servicer and the documents introduced, including the pooling service agreement. See Bolous v. U.S. Bank Nat’l Ass’n, No. 4D15-2608, 2016 WL 6476320 (Fla. 4th DCA Nov. 2, 2016).

Warner, Gross and Forst, JJ., concur.


author: LOGUE, J. SUAREZ, C.J.

text:
    Joaquin D. BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2622
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017.

      Joaquin D. Blanco, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.
   LOGUE, J.

Joaquin Blanco appeals the trial court’s denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

FACTS AND PROCEDURAL HISTORY

Our prior opinion upholding Blanco’s conviction summarized the facts underlying his conviction as follows:

Blanco was arrested and charged with trafficking when he sold crystal methamphetamine to an undercover police officer. Blanco claimed he was induced into making the sale by Jesus Felizzula, a State confidential informant who Blan-co met at an HIV facility. Prior to tidal, the State moved to exclude any reference to Blanco’s HIV condition or the details of Felizzula’s agreement with the State. The trial court granted the motion. Defense counsel’s request to voir dire the jury panel regarding their opinions on entrapment was denied. Thereafter, defense counsel accepted the jury without renewing his objection to the restricted voir dire.
At trial, Blanco revealed that he met Felizzula while attending a facility for persons with HIV/AIDS where Felizzula served as Blanco’s mentor. The two men later became lovers. At the time, Feliz-zula, a convicted drug trafficker, was under a plea agreement which required him to produce trafficking level cases for the State. Blanco testified that he knew that Felizzula took drugs, and he was very much against it. Blanco did not take illegal drugs, and had never before or since this occurrence sold drugs.
At one point in their relationship, Blan-co, who was a real estate agent, sold Felizzula’s home. Felizzula was not satisfied with the amount he received from the sale. Subsequently, Felizzula moved out of the state, but called Blanco asking for his assistance in arranging a drug deal in Miami. Felizzula insisted that Blanco should do this to prove his love and to make amends for the money lost on Felizzula’s home. After repeated refusals, Blanco eventually relented and agreed to facilitate the sale.
Felizzula contacted his police handler, who referred him to undercover narcotics agent Chris Villano. Felizzula informed Villano that Blanco would sell him five eight-balls of crystal methamphetamine. Villano’s telephone call to Blanco was recorded and played to the jury. The two men began with a political discussion and then talked about the drug deal using coded language. Villano explained that conversations of this type usually used a code to avoid detection. Blanco testified that because he was unfamiliar with the code being used, he simultaneously received instructions from Felizzula online. The telephone call was followed by an exchange of telephonic text messages through which Blanco and Villano agreed to meet. Blanco testified that prior to meeting with Villano, Felizzula had someone deliver a white envelope to him. When he later met with Villano, Blanco turned over the envelope in exchange for the amount of cash previously agreed upon. The contraband was confiscated and Blanco was immediately arrested. A subsequent search of Blanco’s home and car revealed no other drags. The jury rejected Blanco’s entrapment defense and returned a guilty verdict.

Blanco v. State, 89 So.3d 933, 935-36 (Fla. 3d DCA 2012).

After his conviction was upheld on direct appeal, Blanco filed a post-conviction motion in the trial court alleging, ineffective assistance of trial counsel. Among other claims, he argued that his trial counsel was ineffective in failing to move to dismiss based on his entrapment defense. The trial court disagreed. It concluded that the failure to move to dismiss did not reflect ineffective assistance of counsel because the question of whether Blanco was predisposed to commit the crime was a question for the jury given the facts of this case. The trial court denied Blanco’s post-conviction motion and this appeal followed.

ANALYSIS

On appeal, Blanco argues that the trial court erred in concluding that the jury could rely upon his use of drug-trade jargon during the drug transaction to prove predisposition. He contends that these statements cannot form a basis for a finding of predisposition because the statements were made after the government induced him to traffic in drugs. He essentially asks this court to fashion a rule that a defendant’s conduct after the government induced him to commit an offense is never relevant to prove predisposition. This proposed rule paints with too broad a brush. While “care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement,” Munoz v. State, 629 So.2d 90, 99 (Fla. 1993), post-inducement acts and statements can, in appropriate circumstances, be relevant to prove that the defendant was predisposed to commit the crime before he was induced to do so. This case is one such example.

Florida law recognizes two distinct entrapment defenses: objective entrapment and subjective entrapment. Objective entrapment focuses on law enforcement’s conduct and whether the conduct amounts to a due process violation under article I, section 9, of the Florida Constitution. Munoz, 629 So.2d at 98-99. This inquiry turns on whether “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” State v. Glosson, 462 So.2d 1082, 1084 (Fla. 1985) ^citation omitted) (holding an agreement to pay an informant a contingent fee conditioned on his cooperation and testimony in criminal prosecutions violated constitutional due process). A due process violation occurs regardless of a defendant’s predisposition to commit the crime. Id.

In contrast, subjective entrapment focuses on whether the defendant was predisposed to commit the crime. Jones v. State, 114 So.3d 1123, 1126 (Fla. 1st DCA 2013). This inquiry turns on whether the defendant was an “unwary innocent” who had no predisposition to commit the crime but was lured into doing so, or, instead, an “unwary criminal” who readily availed himself or herself of the opportunity to commit the crime. Id. (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). Only the subjective entrapment defense is implicated in this appeal.

The Florida legislature’codified the elements of the subjective entrapment defense in section 777.201, Florida-Statutes (2010). It provides:

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person, acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, He or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

Id.

In analyzing this statute, the Florida Supreme Court directed courts to consider three questions. Munoz, 629 So.2d at 99-100. First, did an agent of the government induce the defendant to commit the offense? Id. at 99. This step places the burden on the defendant to prove inducement by a preponderance of the evidence. Id.

Second, was the defendant predisposed to commit the offense? Id. This step places the initial burden on the defendant to establish a lack of predisposition. Id. If the defendant produces evidence of a lack of predisposition, the burden then shifts to the prosecution to rebut this evidence by proof beyond a reasonable doubt. Id. “The state may prove predisposition with evidence of the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime.” Jones, 114 So.3d at 1126 (quotation and citation omitted). “However, admission of evidence of predisposition is limited to the extent it demonstrates predisposition on the part of the accused both prior to and independent of the government acts.” Munoz, 629 So.2d at 99.

Third, should the question of subjective entrapment be submitted to the jury? Id. at 101. Generally, this defense should be submitted to the jury because the issues of inducement and predisposition “ordinarily present questions of disputed facts to be submitted to the jury as the trier of fact.” Id. at 100. However, there are cases where the trial court can rule that the defendant was entrapped as a matter of law. This occurs when “the factual circumstances of a case are not in dispute,” “the accused establishes that the government induced the accused to commit the offense charged,” and “the State is unable to demonstrate sufficient evidence of predisposition prior to and independent of the government conduct at issue.” Id.

In this case, Blanco’s testimony established a prima facie case of inducement. See Jimenez v. State, 993 So.2d 553, 556 (Fla. 2d DCA 2008) (holding, under similar circumstances, that the defendant demonstrated inducement); State v. Henderson, 955 So.2d 1193, 1195 (Fla. 4th DCA 2007) (“Inducement includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.”) (emphasis added) (quotation and citation omitted). He also provided evidence of a lack of predisposition based on his testimony that he had no criminal record or history of distributing drugs. See Jimenez, 993 So.2d at 556 (“[The defendant] ... sufficiently alleged that he had no predisposition to commit the crime by claiming that he has no prior criminal history and ‘no history whatsoever of engaging in drug distribution.’ ”).

Because Blanco established a prima fa-cie case of inducement, the burden shifted to the State to present sufficient evidence of predisposition. Citing to Munoz, Blanco argues that his use of drug-trade jargon during the drag transaction is irrelevant to prove predisposition because it occurred after the government induced him to commit the offense. He primarily relies on the following passage from the Munoz opinion: “admission of evidence of predisposition is limited to the extent it demonstrates predisposition on the part of the accused both prior to and independent of the government acts.” 629 So.2d at 99.

Blanco is misreading Munoz on this point. The passage of Munoz he cites does not categorically bar consideration of post-inducement conduct when deciding whether the defendant was predisposed to commit the crime. Rather, the passage indicates that post-inducement evidence can be admissible if it tends to show that the defendant was predisposed to commit the crime before the government induced him. In other words, the evidence may arise post-inducement, but it must tend to establish that the defendant was predisposed to commit the crime before the inducement.

Other passages in Munoz support this interpretation. The Court explained that “[i]n rebutting the defendant’s evidence of lack of predisposition, the prosecution may make ‘an appropriate and searching inquiry1 into the conduct of the accused.” Id. at 99. It further stated that “care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement.” Id. Requiring care is not the same as adopting a blanket exclusion.

Consider the following hypothetical: at a post-inducement drug deal, the defendant is recorded as saying, “I am glad we met last week and agreed to do business. I have bought this drag fifty times over the last two years from many different dealers, but never before did I get such good product at such a reasonable price.” This statement obviously tends to show that the defendant was predisposed to buy drags prior to the inducement: it reflects that the defendant was regularly buying drags for years before the inducement.

Blanco’s argument to the contrary, that evidence arising after the inducement must be excluded because it is per se irrelevant to prove predisposition to commit the crime before the inducement, has been uniformly rejected by the courts that have considered it.

In Jones, the First District rejected the argument that Munoz requires a blanket exclusion of post-inducement evidence. In that case, the State charged the defendant with drug trafficking after he sold hydro-codone pills to an undercover police officer. Jones, 114 So.3d at 1125. The defendant raised a subjective entrapment defense, and, in response, the State sought to admit a video into evidence which depicted a different, uncharged incident of a drug transaction involving the defendant. The defendant sought to exclude this evidence on the basis that the transaction occurred after an officer induced him to purchase drugs. The trial court disagreed with the defendant and admitted the video as rebuttal evidence. Id. On appeal, the First District affirmed the defendant’s conviction and rejected his contention that the State may: rely only on “pre-inducement” conduct to establish predisposition. Id. at 1126-27. In doing so, the First District cited to Munoz:

- Appellant presents no legal authority to support his contention that the State may only' rely on “pre-inducement” criminal conduct to establish predisposition.' On the other hand, the supreme court in Munoz indicated that post-inducement- acts can be relevant to proving predisposition. Discussing methods the prosecution may employ to rebut an entrapment claim, the court stated, “care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement.” Munoz, 629 So.2d at 99 (emphasis added). Arguably dictum, this statement nonetheless refutes Appellant’s assertion that criminal acts undertaken after alleged inducement by law enforcement are categorically irrelevant to prove predisposition.

Id. at 1126.

Moreover, this court’s earlier opinion upholding Blanco’s conviction demonstrates that post-inducement conduct can be relevant to prove predisposition. Among other issues raised on appeal, this court had to decide whether the portion of the taped conversation between Blanco and the undercover officer discussing political issues was relevant to prove predisposition. Blanco, 89 So.3d at 936. The political discussion had immediately preceded Blan-co’s use of drug-trade jargon to complete the drug deal. Id. at 935. Blanco argued that the political discussion was irrelevant and highly prejudicial. The State responded by asserting that the evidence “tended to rebut Blanco’s portrayal of his character as one easily influenced.” Id. at 936. This court agreed with the State that the evidence was relevant and admissible, citing to, among other cases, Munoz. Id. at 937.

In addition, the Fifth District has held that the post-inducement use of drug-trade jargon is relevant to prove predisposition. In Sallomi v. State, 629 So.2d 969 (Fla. 5th DCA 1993), the State charged the defendant with possessing and selling cocaine. At trial, the defendant claimed entrapment. The jury rejected his defense and convicted him of the charged offenses. On appeal, the Fifth District held that sufficient evidence supported a finding of predisposition, including the defendant’s recorded references to his supplier, the presence of cocaine in the trunk of his car, and his demand for cash up front for an “eight ball” (drug-trade jargon referring to an eighth of an ounce of cocaine). Id. at 970.

As Munoz, Jones, and Sallomi recognize, a defendant’s use of drug-trade jargon at the post-inducement drug transaction can form the basis of a jury’s finding that the defendant was an experienced and willing drug dealer. Here, the jury heard Blanco’s testimony and the recording of his conversation with the undercover officer. It had the opportunity to determine whether he sounded like an “unwary innocent” or, instead, an “unwary criminal” who readily availed himself of the opportunity to commit the crime. It is within the province of the jury to do so. See Munoz, 629 So.2d at 100. (“[W]e construe section 777.201 as requiring the question of predisposition to be submitted to a jury when factual issues are in dispute or when reasonable persons could draw different conclusions from the facts.”); Vanhoosen v. State, 469 So.2d 230, 231 (Fla. 1st DCA 1985) (“[Florida Rule of Criminal Procedure] 3.190(c)(4) motions should be granted rarely since factual disputes are to be resolved by the jury.”).

For these reasons, we reject Blan-co’s contention that a defendant’s post-inducement use of drug-trade jargon during a drug transaction is per se irrelevant to the issue of whether the defendant was predisposed to traffic in drugs.

Affirmed.

FERNANDEZ, J., concurs.

SUAREZ, C.J.

(dissenting).

I respectfully dissent. The record in this case is completely void of any evidence that Blanco was predisposed to commit the crime in question. Without that evidence, the elements of Munoz v. State, 629 So.2d 90, 99 (Fla. 1993) are not met. Therefore, as a matter of law, this is a valid case of entrapment and the issue should have been ruled on by the trial judge and should never have gone to the jury.

Despite its correct recitation of the law of entrapment, the majority relies on certain language—used by Blanco only during the transaction and only after inducement by the state to enter into a single drug transaction—as the sole evidence that Blanco was allegedly predisposed to commit the offence. “This view overlooks even the common connotation of the word ‘predisposition.’ The prefix pre-indicates that the disposition must exist before the first contact with the government.” Farley v. State, 848 So.2d 393, 396 (Fla. 4th DCA 2003). Moreover, the majority fails to acknowledge that, unlike the defendants in the cases it relies upon, Blanco had no prior connection to any criminal activity. The majority’s conclusion in this case is inconsistent not only with the cases it cites, but with due process. Soohoo v. State, 737 So.2d 1108, 1111 (Fla. 4th DCA 1999). As discussed below, other courts which have addressed entrapment claims by defendants who were situated similarly to Blanco, have found entrapment as a matter of law, reversed the convictions and discharged the defendants. That is what should have occurred in this case.

Applying the subjective entrapment defense as described by the majority to this case, it is undisputable that the first element of the test under Munoz, (whether an agent of the government induced the Defendant to commit the crime) was met in this case—an agent of the state induced Blanco to commit the crime at issue but only “after repeated refusals” on Blanco’s part. For purposes of the second element of Munoz (whether the defendant was predisposed to commit the offense) the only possible proper proof the state could have provided is that of a “ready acquiescence in the commission of the crime.” Jones v. State, 114 So.3d 1123, 1126 (Fla. 1st DCA 2013). This is so because there was absolutely no evidence of the other potential areas of proof: “the defendant’s prior criminal activities;” a “reputation for such activities;” or “reasonable suspicion of his involvement in such activity.” Majority at 944. However, the majority has already conceded that Blanco agreed to participate in the drug transaction only “after repeated refusals,” so there actually was no proof of “ready acquiescence” on his part.

The record is devoid of any proper evidence supporting any notion of predisposition on Blanco’s part to commit the offense. To get around this problem, the majority concludes that “post-inducement evidence can be admissible if it tends to show that the defendant was pre-disposed to commit the crime.” Applying circular reasoning, the majority concludes that because Blanco was induced to commit the crime, he was necessarily predisposed to commit it. Such reasoning has been properly rejected. See Farley, 848 So.2d at 398 where, citing federal precedent, the Court rejected the state’s claim that the fact that the defendant participated in the crime indicated that he was predisposed to commit the crime.

In an attempt to bolster its circular reasoning, the majority creates a hypothetical which is completely inapplicable to the facts of this case. In the majority’s hypothetical, a targeted person is recorded, post-inducement, making reference to fifty prior drug transactions. The majority also relies upon a case in which a video of prior criminal activity existed and, because of that, the appellate court found that the defendant was predisposed to commit the crime. It is obvious to any reader that proof of or discussion of prior criminal activity can, by itself, be evidence of predisposition. The problem is, those are not the facts in this case. Rather, in this case there was absolutely no evidence that Blanco had any prior criminal involvement of any sort.

To address that dearth of evidence, the majority somehow conflates a reference to a political discussion as proof that Blanco was “not one easily influenced” with the notion that post-inducement use of jargon is proof of predisposition. First, there is simply no precedent for the notion that holding strong political opinions is somehow proof that one is predisposed to commit a crime, and such a concept should be easily discarded. More importantly, where there was absolutely no proof of any prior involvement in any sort of criminal activity, Blanco’s use of jargon—-which was un-disputedly provided by the informant during the transaction at issue—simply does not satisfy the requirements of Munoz v. State, 629 So.2d 90 (Fla. 1993).

An analysis of the existing entrapment case law demonstrates this point. There are cases, like those cited by the majority, where the defendant claiming entrapment has a demonstrable history of criminal activity. Sallomi v. State, 629 So.2d 969 (Fla. 5th DCA 1993) (defendant therein made reference to prior criminal activity in the form of reference to his “supplier.”); Jones v. State, 114 So.3d 1123 (Fla. 1st DCA 2013) (defendant “had three prior felony convictions involving the sale of drugs.”). Whatever post-inducement activity was at issue in those cases is really irrelevant in light of the already existing evidence of predisposition in each of the cases.

In contrast, other cases involve defendants—like Blanco—with no known prior criminal connection. In those cases, the courts have found entrapment as a matter of law and reversed the convictions—even on claims of ineffective assistance of counsel such as that here. For example, in Nadeau v. State, 683 So.2d 504 (Fla. 4th DCA 1995) the defendant with no criminal record and no known reputation for criminal behavior was “coached ... in the parlance of the drug trade.” Id. at 505. In reversing the conviction in that case based on an improper denial of a motion for acquittal, the Fourth District found that “the law enforcement conduct in this case was so outrageous as to constitute denial of appellant’s due process rights.” Id. at 506. The court there also found that Na-deau proved subjective entrapment as a matter of law. In Jimenez v. State, 993 So.2d 553, 556 (Fla. 2d DCA 2008) a confidential informant induced the defendant to engage in a drug transaction by taking advantage of a pre-existing friendship. The court there reversed the conviction based on claims of ineffective assistance of counsel for failing to move to dismiss based on an entrapment defense, finding the allegations of entrapment unrefuted where the defendant claimed “he had no prior criminal history” and “no history whatsoever of engaging in drug distribution.” Similarly in Madera v. State, 943 So.2d 960 (Fla. 4th DCA 2006), “the defendant was thirty seven years old with absolutely no criminal history, unknown to law enforcement officers and gainfully employed in lawful activity at the time the confidential informant first approached him.” The defendant there also “repeatedly told [the informant] that he did not use or sell illegal drugs.” In language which is wholly applicable to the facts of this case, the court there found:

“there would have been no crime without the Cl’s prodding and improper conduct. At the time the defendant was gainfully employed at a lawful occupation, and had no prior criminal activity, and was not even suspected of criminal activity. The Cl was used here, not to detect crime, but to manufacture it.”

Id. at 962.

Finding a due process violation, the court there reversed the conviction and found the defendant objectively entrapped. See also, Curry v. State, 876 So.2d 29, 31 (Fla. 4th DCA 2004) (reversing a conviction where there was “no indication Curry was involved with any criminal undertaking prior to the involvement of law enforcement” and “it was only after an abundance of phone calls from the Cl, and later the detective” that she acquiesced in committing the crime); Farley v. State, 848 So.2d 393, 396 (Fla. 4th DCA 2003) (reversing conviction where prior to receiving spam email from the government, there was no indication that defendant was inclined to commit the offense, was thus not predisposed to commit the crime and where the state presented no evidence of past deviant behavior or criminal activity, entrapment was shown as a matter of law. Trial court should have granted defendant’s motion to dismiss.); Dial v. State, 799 So.2d 407, 409 (Fla. 4th DCA 2001) (finding appellant had no criminal record and there was no evidence she was suspected of criminal activity before supervisor repeatedly pressured her into criminal scheme); Robichaud v. State, 658 So.2d 166, 168 (Fla. 2d DCA 1995) (reversing trafficking conviction where Cl induced appellant to participate in drug buy by appealing to his sympathy for a sick friend and threatening him that boys from the mafia would “take care of him” and where detective had no information that defendant was involved in drug dealing and had no prior drug offenses); State v. Anders, 596 So.2d 463, 468 (Fla. 4th DCA 1992) (where informant had no reason to believe that Anders had ever engaged in drug trafficking, DEA rejected case against him in light of lack of criminal background, applying objective test to reverse conviction finding there was no “specific ongoing criminal activity by Anders prior to the informant’s scheme.”). See also, 22 CJS, Criminal Law § 76 “Only those statements of the accused that indicate a state of mind untainted by the inducement are relevant to show predisposition. ... The predisposition must be independent of the attention the government agent directed at the defendant. ... Although no factor is controlling, the accused’s reluctance to engage in criminal activity is the most important.” (emphasis added) 16 Fla. Jur. 2d Crim. Law § 141 “ ‘Predisposition’ is not present when one has no prior criminal history related to the offense at issue.”

Finally, the majority somehow seems convinced that because the jury reached a guilty verdict in the face of a claim of entrapment, that this Court may not conclude otherwise. The list of just-cited cases is proof that such a conclusion is incorrect. It is one of the functions of this Court to undo injustice when the law has been improperly applied. To quote the majority, this is one of those cases. As stated in Cruz v. State, 466 So.2d 616, 520 (Fla.), cert. denied, 473 U.S. 906, 106 S.Ct. 3527, 87 L.Ed.2d 652 (1985): “The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention.” quoting Sorrells v. United States, 287 U.S. 435, 457, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (Roberts, J. in a separate opinion).

It is undisputable that under the proper application of the principles and tests of Munoz, Blanco was entrapped by a former lover to engage in a single criminal activity. Blanco was entrapped as a matter of law and the conviction should be overturned. His trial counsel should have moved for judgment of acquittal and the trial court should have granted that motion. For the reasons given above, I would reverse the conviction.

      . In addition to Blanco’s argument regarding predisposition, the trial court rejected seven other claims he raised in Ins post-conviction motion. We affirm the trial court’s rulings on those claims without further discussion. ■

      . Section 777.201 may not, by its express terms, limit its application to subjective entrapment, but the Florida Supreme Court held that it does not govern tire objective entrapment defense: "in the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution.” Munoz, 629 So.2d at 99. This statement reflects the principle that the legislature cannot abrogate a defendant's due process rights. Id. at 98.

      . If there is no evidence of inducement or a lack of predisposition, a defendant is not entitled to a jury instruction on subjective entrapment. See, e.g., Davis v. State, 937 So.2d 300, 303-04 (Fla. 4th DCA 2006).

      .Although section 777.201 arguably requires the issue of entrapment to be submitted to the jury, the Florida Supreme Court rejected such an interpretation of the statute:
      Under the constitution of this state, juries, as the finders of fact, decide factually disputed issues and judges apply the law to the facts as those facts are found by the jury. To construe section 777.201 as mandating that the issue of entrapment is to be submitted to a jury for determination as a matter of law would result in an unconstitutional construction that would violate article I, section 9, of the Florida Constitution.
      Munoz, 629 So.2d at 101.

      . Arguably, this court's holding regarding whether the political discussion was relevant to prove predisposition resolved the question here regarding whether . post-inducement statements can be relevant to prove predisposition, The State, however, did not raise a "law of the case” argument in the trial court or on appeal. We therefore decline to reach this issue.

      . The Court there aptly quoted Jacobson v. United States, 503 U.S. 540, 553, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) for the rule which should be applied in this case: "when the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.”


author: PER CURIAM. BERGER, J.,

text:
    STATE of Florida, Appellant, v. Richard Arvin GUEVARA, Appellee.
    Case No. 5D16-792
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 13, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER and EDWARDS, JJ., concur.

BERGER, J., concurring specially.

BERGER, J.,

concurring specially.

It is more likely than not that exigent circumstances existed in this capital sexual battery case to justify the warrantless search. However, at the hearing on Guevara’s motion to suppress, the State inexplicably failed to put on any evidence in support of the exigency exception, even after being given the opportunity to reopen its case. For this reason, I am constrained to concur.

      . In addition to the testimony presented during the hearing on Guevara's motion to suppress, the record on appeal contains the police report and a transcript of the victim’s mother's testimony. The additional information, while probative, was not introduced at the hearing and, thus, was not considered by the trial court when ruling on the motion to suppress.


text:
    Wendell Ray HURLEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4112
    District Court of Appeal of Florida, First District.
    Opinion filed January 23, 2017.
    Wendell Ray Hurley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 29, 2015, order denying motion for postconviction relief in Escambia County Circuit Court case numbers 2009-CF-002568 and 2009-CF-003123. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court, for treatment as the notice of appeal. Fla., R. App. P. 9.141(c)(6)(D).

WETHERELL, JAY, and WINSOR,-JJ., CONCUR.


text:
    Michael NEILSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3726
    District Court of Appeal of Florida, First District.
    Opinion filed January 23, 2017
    Michael Neilson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, - Assistant Attorney General, Tallahassee, for. Respondent.
   PER CURIAM.

^Petitioner is granted a belated'appeal of the June 23, 2016, order denying motion to correct illegal sentence issued in Escambia County Circuit Court case number 2014-CF-4882A. Upon issuancé of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

WETHERELL, JAY, and WINSOR, JJ., CONCUR.


text:
    James OBER, Appellant, v. TOWN OF LAUDERDALE-BY-THE-SEA a Florida Municipality, Appellee.
    No. 4D14-4597
    District Court of Appeal of Florida, Fourth District.
    January 25, 2017
    Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for appellant.
    Susan L. Trevarthen, Laura K. Wendell, Eric P. Hockman and Adam A. Schwartzb-aum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee.

      Heather K Judd and Jordan R. Wolf-gram, Assistant City Attorneys, Office of the City Attorney For The City of St. Petersburg, St. Petersburg, for Amicus Curiae City of St. Petersburg.
    Alexander L. Palenzuela of Law Offices of Alexander L. Palenzuela, P.A., for Ami-cus Curiae City of Coral Gables.
    Chris W. Altenbernd, Marty J. Solomon and Nicholas A. Brown of Carlton Fields Jorden Burt, P.A., Tampa, for Amicus Curiae The Florida Land Title Association.
    Irwin R. Gilbert of Kelley Kronenberg, West Palm Beach, for Amicus Curiae The Business Law Section of the Florida Bar.
    Joseph E. Foster and Carrie Ann Wozniak of Akerman LLP, Orlando, and Richard H. Martin of Akerman LLP, Tampa, for Amicus Curiae Florida Bankers Association.
    Kenneth B. Bell and John W. Little, III of Gunster, West Palm Beach, and Robert W. Goldman of Goldman, Felcoski & Stone, P.A., Naples, for Amicus Curiae The Real Property Probate & Trust Law Section of the Florida Bar.
    David Rosenberg and Robert R. Edwards of Robertson, Anschutz & Schneid, PL, Boca Raton, Andrea R. Tromberg and Jason Joseph of Gladstone Law Group, P.A., Boca Raton, and David Newman and Ari Miller of Choice Legal Group, P.A., Fort Lauderdale, for Amicus Curiae The American Legal and Financial Network.
    Julia C. Mandell, City Attorney, City of Tampa, and Ernest Mueller, Senior Assistant City Attorney, Tampa, and Victoria Méndez, City Attorney, City of Miami, Miami, for Amicus Curiae City of Tampa, and The City, County and Local Government Section of the Florida Bar.
   Per Curiam.

We grant appellant James Ober’s motion for rehearing, withdraw our opinion of August 24, 2016, and substitute the following.

This case involves the application of section 48.23, Florida Statutes (2014), the lis pendens statute, to liens placed on property between a final judgment of foreclosure and a judicial sale. We hold that such liens are discharged by section 48.23(l)(d).

Background

On November 26, 2007, a bank, which is not a party in this lawsuit, recorded a lis pendens on certain property as part of a foreclosure lawsuit against a homeowner, also not a party in this case. On September 22, 2008, the bank obtained a final judgment of foreclosure. From July 13, 2009 through October 27, 2011, appellee Town of Lauderdale-by-the-Sea, recorded seven liens on the subject property related to various code violations occurring after the entry of the final judgment.

On September 27, 2012, the bank purchased the property at a foreclosure sale. It later sold the property to Ober.

Ober filed suit to quiet title, attempting to strike the liens against his property. The Town’s counterclaim sought to foreclose the liens. The trial court granted the Town’s motion, denied Ober’s motion, and entered a final judgment of foreclosure on the seven liens recorded prior to the judicial sale, as well as on three liens imposed after the sale of the property. Ober does not argue that those three post-judicial sale liens were discharged, and on remand the trial court may enter judgment on them.

Analysis

Insofar as this case concerns the interpretation of a statute, the standard of review is de novo. Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011). Section 48.23(1)(d) states, in pertinent part:

[T]he recording of ... notice of lis pen-dens ... constitutes a bar to the enforcement against the property described in the notice of all interests and liens ... unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens.

(Emphasis added).

, We reject the Town’s argument that the statute applies only to liens existing or,accruing prior to the date of the final judgment. The language of the statute is broad, applying to “all interests and liens.” Significantly, the statute expressly contemplates that its preclusive operation continues through a “judicial sale.” This is consistent with how foreclosure suits operate-in the real world. As the amicus-brief of the Florida Bankers Association points out, foreclosures are unlike many civil lawsuits in that “much remains to be accomplished after entry of final judgment, including the foreclosure sale, the issuance of certificates of sale and title, and, in many instances, the prosecution of a deficiency claim, all under court supervision.” In a foreclosure lawsuit, the final judgment is not the end of the road, but merely a way station .to the final result. See Park Fin. of Broward, Inc. v. Jones, 94 So.3d 617, 618 (Fla. 4th DCA 2011) (stating that mortgage foreclosure actions are different from typical civil actions).

A proper reading of section 48.23(l)(d) is,- as the Florida Land Title Association suggests, that “when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether recorded before the final judgment or after, if the lienor does not intervene in the action within 30 days” after the recording of the notice of lis pendens.

This view is in accord with Form 1.996(a) of the Florida Rules of Civil Procedure. The form provides a sample foreclosure judgment, with a provision stating:

On filing the certificate of sale, defendants) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property ..., except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any.

As the Business Law Section of the Florida Bar notes, this form reflects the common understanding of the operation of the Us pendens statute. See Hancock Advert., Inc. v. Dep’t of Transp., 649 So.2d 1086, 1089 (Fla. 3rd DCA 1989) (holding that the court is “entitled to consider” the “practical construction which has in fact been adopted by the industry” when dealing with a statutory interpretation issue). The form was first adopted in 1971. See In re Fla. Rules of Civil Procedure, 263 So.2d 404, 419 (Fla. 1971). It has been reviewed and revised by the Florida Supreme Court since 1971, most recently in January 2016. See In re Amendments to Fla. Rules of Civil Procedure, 190 So.3d 999 (Fla. 2016). The January 2016 revisions maintained the language quoted above. Id. at 1010.

Conclusion

The practical problem in this case is the long lag time between the foreclosure judgment and the foreclosure sale. Resolution of the competing interests—of the Town, the lending and title insurance industries, property owners, and buyers at foreclosure sales—is in the province of the legislature.

We reverse the final judgment and remand to the circuit court for further proceedings.

Gross, Forst and Klingensmith, JJ., concur.


author: LOGUE, J.

text:
    Marco ROMAGNOLI and Roberto Romagnoli, Appellants, v. SR ACQUISITIONS-HOMESTEAD, LLC, etc., and SR Acquisitions-Florida City, LLC, etc., Appellees.
    Nos. 3D16-386 & 3D16-387
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Arnaldo Velez, for appellants.

      Meland Russin & Budwiek, P.A., and Eric Ostroff and Joshua W. Dobin, for appellees.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Despite the complicated relationships between the parties, this case is relatively straightforward. To cut to the chase, Ap-pellees SR Acquisitions-Florida City, LLC and SR Acquisitions-Homestead, LLC (the Noteholders) purchased from Ocean Bank the notes, personal guarantees, and mortgages relating to two properties. The Debtors on these instruments defaulted and the Noteholders foreclosed on both properties. The Noteholders did not join the guarantors in the foreclosure action. By a concatenation of events, the investors behind the Noteholders who were foreclosing on the notes also appear to have a majority interest in the Debtors whose properties were being foreclosed upon. Not surprisingly, the borrower entities provided no defense and the Noteholders successfully foreclosed and obtained substantial deficiency judgments.

In the underlying cases, the Noteholders then sued the Guarantors-Appellants Marco Romagnoli and Roberto Romagnoli-to collect the deficiency judgments. The trial court entered summary judgment for the Noteholders and against the Guarantors finding that the Guarantors were estopped from challenging the amount of the deficiency judgments and barred from raising equitable defenses. The Guarantors appealed. We reverse.

Turning to the first issue, we hold that the Guarantors are not estopped from challenging the amounts of the deficiency judgments in subsequent actions at law on their guarantees. The Noteholders could have joined the Guarantors in the foreclosure action but chose not to. As a result of their choice, there can be no collateral estoppel (also known as judicial estoppel) under Florida law because the required identity of the real parties in interest is missing since the Guarantors were not parties to the foreclosure. Khan v. Simkins Indus., Inc., 687 So.2d 16, 17-18 (Fla. 3d DCA 1996) (noting that individuals who were parties to foreclosure in their corporate capacity were not estopped from challenging amount of deficiency judgment in subsequent action at law on their personal guarantees because the required identity of parties was missing). This result comports with the economic reality that many foreclosures involve defaulting single-asset entities, like those here, that have little or no incentive to contest the foreclosure or litigate the amount of the deficiency judgment.

Turning to the second issue, while recognizing that an action to foreclose sounds in equity, in contrast to an action for a deficiency judgment which sounds in law, we do not decide the validity of the old legal principle that equitable defenses are not available in actions at law. Instead, we rely upon the express and narrower holdings of this court that equitable defenses available in a foreclosure action seeking a deficiency are also available in a subsequent legal action to collect the deficiency. PMI Mortg. Ins. Co. v. Cavendar, 615 So.2d 710, 712 (Fla. 3d DCA 1993) (quoting with approval cases holding that an action at law for a deficiency judgment is subject to equitable defenses); Frumkes v. Mortg. Guarantee Corp., 173 So.2d 738, 741 (Fla. 3d DCA 1965) (“equitable considerations which could have been urged in opposition to a proper and timely application for deficiency decree in a foreclosure suit, may be asserted with similar purpose and effect in a law action for deficiency”); Frank v. Levine, 159 So.2d 665, 666 (Fla. 3d DCA 1964) (“there would appear to be no reason why equitable considerations sufficient to limit a deficiency award in equity should not serve equally when pleaded and proved in an action at law to recover a mortgage foreclosure sale deficiency5’).

Reversed.

      . The properties at issue in the foreclosure, located in Florida City and Homestead, were owned by two single-asset limited liability companies which we refer to as the "Debtors.” San Remo at Florida City, LLC owned the Florida City property and San Remo Homes at Homestead, LLC owned the Homestead property. The Debtors were each comprised of three member entities: Starmac, LLC, Merici, LLC, and Dinuro Investments, LLC. Each of Debtors borrowed money from Ocean Bank and mortgaged its property. These loans were guaranteed by the principals of Dinuro—the Romagnolis—who are the appellants here. When additional capital was required, the member entities had a falling-out. Starmac and Merici formed the Note-holders and purchased the original notes, mortgages, and guarantees from Ocean Bank. The relationships are somewhat convoluted, but the bottom line is that at the time of the foreclosure, the investors behind Starmac and Merici owned the notes, mortgages, and guarantees and also appear to have a majority ownership in the Debtors whose properties were being foreclosed upon.


text:
    Keith Robert JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-2756
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Thomas D. Sommerville, of Law Offices of Thomas D. Sommerville, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Keith Robert Johnson (“Petitioner”), seeks second tier certiorari review of an opinion from the appellate division of the circuit court, in which the circuit court affirmed a judgment and sentence for indirect criminal contempt. The appellate division of the circuit court did not have jurisdiction to hear the appeal and should have transferred the appeal to this court. Therefore, we grant the petition, quash the opinion of the circuit court, and remand for further proceedings,

This case stems from a divorce proceeding between Petitioner and his former wife, Lisa Lynne Bernick (“Former Wife”). In August 2013, the circuit court entered a final judgment of dissolution of marriage, which included a timesharing agreement. In November 2014, the circuit court issued an order for Petitioner to show cause why he should not be held in indirect criminal contempt for failing, on one occasion, to return the children either to their school or to Former Wife in accordance with the timesharing agreement and final judgment. In April 2015, the court held a hearing and found Petitioner guilty of indirect criminal contempt. In November 2015, he was sentenced to forty-five days probation with a special condition of forty-five days in jail. Petitioner appealed to the appellate division of the circuit court, which issued a per curiam affirmance of the trial court’s order.

Petitioner now seeks review of the circuit court’s appellate decision by petitioning for this court to issue a writ of certiorari. “The district court reviewing the circuit court’s decision is limited to determining whether the circuit court afforded procedural due process and whether the court applied the correct law or, stated in other words, whether the circuit court decision departed from the essential requirements of law.” State v. Kirby, 752 So.2d 36, 37 (Fla. 5th DCA 2000).

Second-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in .scope. Ordinary legal errors, or application of the correct law incorrectly under the facts, are not sufficient grounds for a district court to grant second-tier certiorari. Second-tier cer-tiorari review should only be exercised when there has been a violation of a clearly established principle of law resulting in the miscarriage of justice.

USAA Cas. Ins. Co. v. Emergency Physicians of Cent. Fla., 200 So.3d 153, 154 (Fla. 5th DCA 2016) (internal quotation marks omitted) (internal citations omitted).

We will not discuss the merits of the petition because a jurisdictional issue exists that neither party addressed. Despite the fact that the indirect criminal contempt proceeding was given a misdemeanor case number, it was not a county court case; rather, it was a circuit court case because it arose from a family circuit court matter.

In Schaab v. State, 33 So.3d 763 (Fla. 4th DCA 2010), the State moved in the circuit court for the issuance of an order to show cause as to why the witness should not be held in indirect criminal contempt for failing to obey a circuit court subpoena in a criminal case. 33 So.3d at 764. The order to show cause was styled as an order from the county court but it was signed by a circuit court judge. Id. The ease was assigned a misdemeanor case number but was heard before the- circuit court judge who presided over the criminal case. Id. at 764-65. The court found the witness guilty of contempt, sentenced her to thirty days in jail, and placed her on six months of probation. Id. at 765. The probation order indicated that it was an order of the county court, but the circuit court judge signed the order as a circuit court judge. Id.

The witness appealed to the appellate division of the circuit court in the nineteenth circuit. Id. “The circuit court appellate panel held that it did not have jurisdiction because the judgment was a circuit court judgment, even though the trial judge had called it a county court case.” Id. The appellate panel then transferred the appeal to the Fourth District. Id. The Fourth District agreed with the circuit court appellate panel and held as follows:

In sum, [cjontempt is a common law crime in Florida, which,, although recognized by statute, is not specifically classified by statute as either a felony or a misdemeanor. Both the circuit and county courts have jurisdiction to hear criminal contempts. The contempt in this case arose from a felony proceeding, a circuit court case. Section 38.22[, Florida Statutes (2008)] gave the circuit judge: jurisdiction to hear and punish the contempt. The clerk’s assignment of a misdemean- or case number did not affect the status of the contempt as a circuit court matter over which that court had Jurisdiction. [F]ile numbers are merely an administrative convenience for the clerk but not a statutory prerequisite for filing by the parties to the action. Case numbers assist a clerk in satisfying the statutory duty to keep all papers filed with the utmost care and security, arranged in appropriate files. Because the judgment of indirect criminal contempt was a circuit court matter, the appellate division of the circuit court did not have jurisdiction to hear the appeal.

Id. at 765-66 ‘(alterations in- original) (internal quotation marks omitted) (internal citations omitted). V!-

Here, the family circuit' court 'issued the order to show cause. .The order was subsequently assigned a misdemeanor case number and heard before a circuit judge. The judgment .and sentence indicated that they were issued in county court, but they were signed by a circuit judge. We conclude that the judgment of indirect criminal contempt was a circuit court matter as it arose from the circuit court family law case; thus, the appellate division of the circuit court did not have jurisdiction to hear the appeal.

We are compelled to consider this jurisdictional issue even though neither party raised it because “an order entered without jurisdiction is a nullity, and cannot be considered harmless error.” Dragomirecky v. Town of Ponce Inlet, 891 So.2d 633, 634 (Fla. 5th DCA 2005) (citing Katz v. NME Hosps., Inc., 791 So.2d 1127, 1128 (Fla. 4th DCA 2000) (additional citations omitted)). “It is well settled that lack of subject matter jurisdiction may be raised sua sponte by an appellate court.” Ruffin v. Kingswood E. Condo. Ass’n, 719 So.2d 951, 952 (Fla. 4th DCA 1998) (citations omitted). “[Jjurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.” Esposito v. Horning, 416 So.2d 896, 898 (Fla. 4th DCA 1982) (footnote omitted).

Therefore, we grant the petition to the extent that the appellate division of the circuit court lacked jurisdiction when it affirmed Petitioner’s judgment and sentence. We quash the circuit court’s appellate opinion and remand with instructions that the appellate division of the circuit court transfer the notice of appeal to this court. Granting of the petition is without consideration of the merits of the issues raised on appeal.

PETITION GRANTED, ORDER QUASHED, and REMANDED for further proceedings.

BERGER, EDWARDS, JJ. and JACOBUS, B.W., Senior Judge, concur.


text:
    Vohn COOPER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3946
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.
    Vohn Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 7, 2016, order dismissing with prejudice defendant’s amended motion for postconviction relief to remedy manifest injustice issued in Duval County Circuit Court case number 16-1995-CF-005328-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.