text:
    Michael Dennard GOODSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-3549
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.

      Andy Thomas, Public Defender, and Megan Lynne Long, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellee.
   PER CURIAM.

We previously affirmed Appellant’s sentence based on our en banc decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) (Walton I), which held that mandatory mínimums under the 10-20-Life statute must be imposed consecutively regardless of whether the defendant possessed or discharged a firearm. However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016). See Abrams v. State, 42 Fla. L. Weekly S680, 2017 WL 2302328 (Fla. May 26, 2017).

■ In Williams, the Court held that “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.” 186 So.3d at 993; accord Walton II, 208 So.3d at 64. But, the Court also held that “[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Williams, 186 So.3d at 993.

Here, the jury found Appellant guilty of discharging a firearm in each of the charged offenses. At sentencing, the trial court stated that it was bound by this court’s decision in Walton I to impose consecutive mandatory minimum sentences. The trial court stated that it was disallowed from identifying this incident— where Appellant discharged a firearm multiple' times into a billiards hall where multiple people were working and playing billiards—as a single episode, and consequently disallowed from imposing a single 20-year term. The trial court also stated that it was

required to impose a minimum mandatory 20 years to each count to be served consecutively without regard or consideration of defendant’s minimal criminal history or any other extenuating circumstances that may be present in this case. The ability of the trial court to exercise any discretion to determine an appropriate sentence for defendant where the State has provided [competent] and substantial evidence to support a jury verdict of attempted second degree murder through the discharge of a firearm has been entirely taken from the trial court’s authority.

But the offenses occurred in the same episode and involved multiple victims. Thus, the trial court had discretion to impose concurrent or consecutive mandatory minimum sentences in this case. Accordingly, because it is clear the trial court would not have imposed the same sentence if it was not bound by Walton I, we reverse Appellant’s sentence and remand for resentencing in accordance with Williams and Walton II.

We affirm the remaining issues on appeal.

AFFIRMED in part; REVERSED in part; REMANDED for resentencing.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


source: Caselaw Access Project

author: LUCAS, Judge. .

license: Public Domain

text:
    Carl William COSIO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2439
    District Court of Appeal of Florida, Second District.
    Opinion filed September 6, 2017

      Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge. .

One man’s trash is another man’s treasure. But sometimes it’s just another man’s nuisance. Such was apparently the case with the trash and overgrowth that had accumulated around Carl" Cosio’s home. 'While we might question whether that nuisance justified the prosecution of a felony charge against Mr. Cosio, on this record we must affirm his conviction and withhold of adjudication for violating sections 403.413(4) and (6)(c), Florida Statutes (2015). We are concerned, however, about the State’s misreading of the Florida Litter Law in the arguments it has maintained in this appeal. We take this opportunity, then, to sift through what, under the statute, constitutes “dumping litter” and what does not. ■

I.

Over the years, Mr. Cosio had turned his yard into something of a repository for what one might charitably call unwanted miscellany—newspapers, bottles, cans, tubs, barrels, dolls, toys, pickup trucks— all spread out in scattered piles among a prolific overgrowth of trees, shrubs, plants, and wild vegetation. In 2013, the cluttered condition of Mr. Cosio’s property came to the attention of a City of Tampa code inspector, Bruce Lucas, who issued a citation to Mr. Cosio. As the months went by, Mr. Lucas would return to the property frequently and speak with Mr. Cosio several times on -the phone; but whatever Mr. Cosio’s efforts may have been at clearing and cleaning the-property, they were, in Mr. Lucas’s estimation, insufficient to bring the property into compliance with the city code.

In April 2015, the City of Tampa initiated a code enforcement proceeding against Mr. Cosio concerning the condition of his property. The code enforcement board determined that Mr. Cosio’s yard ■ was “a serious public safety and welfare threat” and imposed a deadline for him to bring his property into code compliance, as well as a daily fine if he failed to do so. The deadline came and went, Mr. Lucas inspected the property again and, once again, found it to be in an unacceptable condition. The code enforcement office then initiated an abatement of the property in October 2016—a three-day process during which city workers cut down the offending trees and brush on Mr. Cosio’s yard, trimmed the overgrowth, ' and cleaned off all of ¿he accumulated trash and debris, including the felled trees and brush, from the property. All of these materials were then collected together into piles and hauled away in dump trucks.

Shortly after the city’s abatement of his property, Mr. Cosio was charged by information with one count of felony littering. He went to trial before a jury, was found guilty, and the circuit court withheld adjudication, sentenced him to five years of probation, and imposed restitution and a fine.

The principal dispute we will focus on concerns Mr. Cosio’s argument in his post-trial motion for judgment of acquittal challenging the State’s measurement of his litter,-He argued below, and now on appeal, that not all the debris taken from his property was litter under the statute, and that the amount of litter (properly construed) that was removed was neither five hundred pounds in weight nor one hundred cubic feet in volume, and thus did not rise to the felonious threshold of littering under section 403,413(6)(c). Mr, Cosio takes particular issue with the inclusion of the trees and overgrowth that the city cut down, which he maintains cannot be construed as his “litter.” The State responds that the “overgrown trees come under the definition of litter,” but that, even without the overgrowth, there was still sufficient evidence of Mr. Cosio’s littered personal effects to sustain the denial of his motion for judgment of acquittal.

Our record is rather light on this point. There was relatively little evidence presented as to any precise measure of Mr. Cósio’s trash and debris. The code inspector, Mr, Lucas, testified that an entire line of cherry laurel trees was cut down during the abatement process and that a total of fifty tons of material was ultimately removed from the property. Mr. Lucas’s estimate in that regard clearly included.not only the piles of effects and personal property Mr. Cosio had scattered across his yard but also all the trees and vegetation that the city had clear cut as part of the abatement process. Later, however, Mr. Lucas clarified that the “accumulation of the junk, trash, and debris” was more than one hundred cubic feet. In addition to the code inspector’s testimony, the State introduced several photographs through Mr. Lucas that depicted- the- state of Mr. Co-sio’s property prior to the abatement process.

’ll.

Mr. Cosio argues that the trial court erroneously denied his motion.for a judgment of acquittal because the State improperly included “overgrowth”—that is, the trees and plants that the city had cut down during the abatement—in its calculation of the amount of litter that was collected from his property. We review the circuit court’s denial of.such a motion de novo. Starks v. State, 223 So.3d 1045, 1048, 42 Fla. L. Weekly D665a, D668a, 2017 WL 1067815 (Fla. 2d DCA Mar. 22, 2017) (citing Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)). Our resolution of this argument turns on how the -Florida Litter Law is properly construed. We begin with a review of its pertinent subsections and a brief observation about its application to property owners such as Mr. Cosio.

Section 403.413(4) provides:

Dumping litter prohibited.—Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:
(a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of the right-of-way thereof, or any other public lands, except in containers or areas lawfully provided therefor. ...;
(c) In or on any private property, unless prior consent of the owner has been given and unless the dumping of such litter by such person will not cause a public nuisance or otherwise be in violation of any other state or local law, rule, or regulation.

“Dump” and “litter” are defined under subsections (2)(d) and (f), respectively, as follows:

(d) “Dump” means to dump, throw, discard, place, deposit, or dispose of.
(f) “Litter” means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; tobacco product; tire; appliance; mechanical equipment or part; building or construction material; tool; machinery; wood; motor vehicle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.

Subsection (6) of section 403.413 establishes tiers of penalties for Violation of the statute based upon the amount of litter the offender dumps. Pertinent here, subsection (6)(c) provides: “Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume ... is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.”

Finally, although it might seem, at first blush, somewhat counterintuitive, we agree with our sister court that dumping litter on one’s own private property can, in certain circumstances, constitute a violation of the Florida Litter Law. See State v. Davis, 838 So.2d 696, 699 (Fla. 5th DCA 2003) (Monaco, J., concurring specially) (explaining that by reading subsection(4)(c) of the statute conjunctively, “if one is going to dump litter on one’s own property, consent being presumed, that dumping must not cause a public nuisance or otherwise violate laws, rules or regulations. If it does, it violates the statute”). As there is no serious dispute that Mr. Cosio’s property had become a “public nuisance” and was in violation of a local rule or regulation, our inquiry in this appeal becomes two-fold: first, can the State, as it argues on appeal, include the trees and overgrowth of vegetation that had taken root on Mr. Cosio’s property—and that the city cleared away—in measuring the amount of dumped litter under the statute; and second, if it cannot, was there still sufficient evidence that Mr. Cosio had dumped five hundred pounds or one hundred cubic feet of litter on his property to withstand his motion for judgment of acquittal.

A.

The first query is an issue of statutory construction. The State maintains that the various trees and brush the city was required to cut down to abate Mr. Cosio’s property could be deemed “litter” for purposes of the statute. The State notes that subsection (4)(f) of the statute includes a broad and varied swath of materials that could potentially constitute litter under the Florida Litter Law. And, as the State points out, included in that list, we find “building or construction material,” “wood,” and substances resulting from “agricultural operations.” Under the State’s reading of the statute, since the trees and brush the City cut down were comprised of wood, and wood can be harvested in agricultural operations or used as a building or construction material, it follows that all of this felled foliage was litter. In our view, although the State’s argument may hold a whiff of logic, it is not a viable interpretation of the Florida Litter Law.

The legislature crafted subsection (4)(f) to define litter by referencing a list of items with progressing particularity. The first four items of the list—“garbage,” “rubbish,” “trash,” and “refuse”—are fairly generalized descriptive concepts, but the remaining items that follow share a common feature: they can all, in some way, be viewed as potential examples or variants of discarded “garbage,” “rubbish,” “trash,” or “refuse” of one sort or another. As such, we construe “wood,” “building or construction material” and “substance ... resulting from ... [an] agricultural operation” in the light of those prefatory examples in the subsection—that is, these latter terms illustrate specific kinds of garbage, rubbish, trash, or refuse. See Stratton v. Sarasota County, 983 So.2d 51, 56 (Fla. 2d DCA 2008) (“[U]nder the doctrine of nosci-tur' a sociis (a word is known by the company it keeps), one examines the other words used within a string of concepts to ■derive the legislature’s overall. intent.” (quoting Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla. 2003))); see also Yates v. United States, — U.S. —, 135 S.Ct. 1074, 1085-86, 191 L.Ed.2d 64 (2015) (holding that an illegally caught grouper could not be deemed a “tangible object” under the Sarbanes-Oxley Act of 2002 because, applying noscitur a sociis, “[t]he words immediately surrounding ‘tangible . object’- in § 1519—‘falsifies, or makes a false entry in any record [or] document’—also cabin the contextual meaning of that term” (second alteration in original)); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (“[A] word is known by the company it keeps (the doctrine of noscitur a sociis). This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving ‘unintended breadth to the Acts of Congress.’ ” (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961))).

With that principle in mind, it defies any reasonable understanding of what could plausibly be characterized as “litter,” or “garbage,” or “trash,” or “rubbish” to maintain, as the State does here, that live, verdant plant life and forestry falls within the ambit of any of those words. A living tree is not trash, at least under the Florida Litter Law. To broaden the meaning of litter to include growing things that are rooted in the earth would imbue more than an “unintended breadth” of definition into the statute’s language, Jarecki, 367 U.S. at 307, 81 S.Ct. 1579—it would foist an outright distortion on the common meaning of “garbage,” “rubbish,” “trash,” or “refuse.”

Nor ' under these circumstances does the felled state of the trees ahd brush on Mr. Cosio’s yard transubstantiate their material into litter for purposes of the statute. To be found in violation of section 403.413, the State had to prove that Mr. Cosio “dumped” the offending material. To “dump” means to “dump, throw, discard, place, deposit or dispose of’ proscribed litter. § 403.413(4)(d). Mr. Cosio did none of these thingá with respect to the trees and overgrowth on his property. A city employee or contractor was responsible for clear cutting Mr. Cosio’s yard of its overgrowth. Whatever else can be said of Mr. Cosio’s attention (or inattention) to the overgrowth on his yard, it was not a problem that could be characterized as stemming from his “dumping” plant life across his property.

B.

Nevertheless, we are satisfied that the State presented admissible evidence from which a jury could have concluded that Mr. Cosio had dumped a sufficient amount of litter—of the statutorily proscribed kind—to support his conviction for this offense. See Pagan, 830 So.2d at 803 (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” (citing Banks v. State, 732 So.2d 1065 (Fla. 1999))); Nicholas v. State, 47 So.3d 297, 300 (Fla. 2d DCA 2010) (“The trial court should grant a judgment of acquittal if the State fails to present legally sufficient, evidence to establish each element of the crime charged.” (citing State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003))). Mr. Lucas had become thoroughly familiar with Mr. Cosio’s property by the time of the trial. Throughout his testimony, he consistently referred to the trees and brush on Mr. Cosio’s yard as “overgrowth.” When he was asked whether the accumulated trash on Mr. Cosio’s yard exceeded one hundred cubic yards, he replied (without referencing overgrowth, trees, or vegetation) that it did. Furthermore, the jury was provided several photographs that offered various views of Mr. Cosio’s yard and his accumulations prior to the City’s abatement. These pictures depict an enormous quantity of accumulated personal effects—all of which could easily be deemed “garbage,” “rubbish,” “trash,” or “refuse”—scattered across Mr. Cosio’s yard. Collectively, when combined with' Mr. Lucas’s testimony, this evidence supported the trial court’s denial of Mr. Co-sio’s motion for judgment of acquittal.

Although the State’s pursuit of a felony case through a jury trial against an elderly gentleman who hoarded junk on his overgrown yard strikes us as a rather questionable expenditure of criminal justice resources, that is not a basis upon which we can disturb the trial court’s ruling, and so we affirm the judgment below.

Affirmed.

SILBERMAN and CRENSHAW, JJ., Concur.

      . Subsection (6)(c) of the statute states that
      "[a]ny person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume ... is guilty of a felony of the third degree,” In his motion, Mr, Cosio also attempted to refute that the condition of his property constituted a “nuisance,” which is also a required element under section 403.413(4)(c). Although we note the majority of his neighbors who testified at his trial did not seem concerned or terribly bothered by Mr, Cosio's yard, the State presented sufficient evidence on that point such that Mr. Cosio's motion was properly denied.

      . Mr. Cosio never challenged the City of Tampa Code Enforcement Board’s prior ruling, which determined that his property was a public nuisance, a threat to public health, safety, or welfare, and in violation of sections 19-49 and 19-50 of the Tampa Code of Ordinances. Those provisions prohibit "any accumulations of debris, rubbish, trash, garbage, refuse ... [and] nuisance vegetation which exceeds a height of twelve (12) inches over the majority of the parcel,” Tampa, Fla., Code of Ordinances ch. 19, § 49 (2015), as well as "excessive accumulations of untended growth of weeds, undergrowth or other dead or living plant life,” Tampa, Fla., Code of Ordinances ch. 19, § 50 (2015).

      . Cf. Litter, Black's Law Dictionary (10th ed. 2014) (“Wastepaper, cans, and other refuse that people have discarded and left on the ground in a public place.”); Garbage, Bailen-tine's Law Dictionary (2010)-("The accumulation as-refuse of animal, fruit, or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in,' or storing of meat, fish, fowl, fruit, or vegetables; any worthless or offensive matter.”); Stephen Michael Sheppard, Bouvier Law Dictionary (2012) (defining trash as: “Dry solid waste material. Trash is refuse, garbage, the dry solid waste cast off by individuals and entities to be destroyed, disposed of, or, potentially, recycled”); Rubbish, Ballentine’s Law Dictionary (2010) ("Refuse. Waste materials collected by a municipality.”); New Oxford American Dictionary 1842 (3d ed. 2010) (defining trash as "discarded matter; refuse”); id. at 1525 (defining rubbish as "waste material” and "material that is considered unimportant or. valueless”).

      . All the more so given the broad civil remedies the city had at its disposal—a property lien for abatement, declaratory, or injunctive relief—with which it could have obtained Mr. Cosio’s compliance with the city's code. See , Tampa, Fla., Code of Ordinances ch, 19, § 7(d) (2015) ("If the abatement costs have not been appealed or paid within thirty (30) calendar days of billing, the city will, by resolution, impose an abatement assessment lien, and upon recordation in the official records of Hillsborough County, Florida will establish a lien against.the subject real property.”); Rudge v. City of Stuart, 65 So.3d 645 (Fla. 4th DCA 2011) (recognizing city's authority to enforce nuisance abatement ordinance through injunctive relief).


author: LAGOA, J.

text:
    Willie BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1698
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017
    Willie Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

Appellant, Willie Brown (“Brown”), appeals from an order granting his Motion to Correct Illegal Sentence. We dismiss the appeal as this Court lacks jurisdiction to entertain an appeal taken by defendant from an order granting relief under Florida Rule of Criminal Procedure 3.800.

On June 19, 2017, Brown filed a Motion to Correct Illegal Sentence pursuant rule 3.800(a)(1). On June 21, 2017, the trial court granted Brown’s motion and corrected Brown’s sentence to reflect his designation as a Prison Releasee Reoffender (P.R.R.) only as to Count I, and struck his Habitual Violent Felony Offender (H.V.O.) designation in Count I. Brown filed a notice of appeal regarding the trial court’s June 21, 2017, order.

Florida Rule of Appellate Procedure 9.140(b)(1)(D) provides that:

(1) Appeals Permitted. A defendant may appeal
(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.850, 3.851, or 3.853.

(Emphasis added).

Here, the trial court’s June 21, 2017, order granted Browm’s rule 3.800 motion. As such, the order is not an ap-pealable order pursuant to rule 9.140(b)(1)(D), and we therefore dismiss the appeal for lack of jurisdiction.

Dismissed.

      . Our review of Brown’s Initial Brief shows that the brief did not address any of the issues raised in his motion to correct illegal sentence. Instead, Brown argued that the trial court erred in giving a non-standard jury instruction and erred in giving a modified Allen charge and then a full Allen charge. It therefore appears that Brown used the trial court’s June 21, 2017, order to reargue matters previously heard and considered by this Court in case number 3D16-1989. See Brown v. State, No. 3D16-1989, 221 So.3d 624 (Fla. 3d DCA Dec. 14, 2016). "While we recognize that incarcerated persons must be provided with the full panoply of procedural vehicles with which to challenge the lawfulness of their incarceration, the constitutional right of access to the courts is not unfettered. The right to proceed pro se will be forfeited where a party abuses the judicial process by the continued filing of ‘successive motions which have been heard, considered, rejected, and then raised again.’ ” Roberts v. State, No. 3D17-421, 224 So.3d 289, 290, 2017 WL 3044671, at *1 (Fla. 3d DCA July 19, 2017) (citations omitted).
      We caution Brown that any further abuse of the judicial process may subject him to the issuance of an order to show cause why he should not be prohibited from filing further pro se appeals, petitions, motions or other pleadings in this Court relating to lower tribunal case number F99-41138(A), as well as to the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017); Minor v. State, 963 So.2d 797 (Fla. 3d DCA 2007).


author: ORFINGER, J.

text:
    Johnny BARNES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1353
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Johnny Barnes, a juvenile at the time of the relevant crimes, appeals his judgments and sentences for second-degree murder and robbery with a firearm. We affirm as to all issues, but write to address Barnes’s claim that the trial court erred in considering convictions for crimes committed subsequent to the crimes in this case to support its decision to impose a life sentence and to correct a scrivener’s error in the amended sentencing documents.

Because Barnes was a juvenile at the time he committed these offenses, the trial court conducted an individualized sentencing hearing pursuant to section 921.1401, Florida Statutes (2016). At the sentencing hearing, the State filed copies of judgments and sentences in three other cases for crimes that Barnes committed after he committed the crimes in this case. The State conceded that the subsequent convictions could not be scored on the Criminal Punishment Code scoresheet, but argued that the court could consider them in determining whether a life sentence was appropriate. The trial court considered the subsequent convictions and sentenced Barnes to life in prison for the second-degree murder and thirty-five years in prison for robbery. The court found that Barnes was entitled to a judicial review on both convictions after twenty-five years and that the twenty-five-year mandatory minimum applied to both convictions.

Prior to filing his initial brief, Barnes filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court erred in relying on his subsequent convictions in support of the life sentence and, in determining that he was entitled to a judicial review of his thirty-five-year sentence for the robbery conviction after twenty-five years, instead of twenty years under section 947.1402(2)(d). In a written order, the trial court concluded that it properly considered Barnes’s subsequent convictions at the individualized sentencing hearing under the juvenile sentencing statutes, but agreed that Barnes was entitled to a review of the thirty-five-year sentence after twenty years.

Barnes is correct that, under the Criminal Punishment Code, a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense. Norvil v. State, 191 So.3d 406, 410 (Fla. 2016). But Barnes’s reliance on Norvil is misplaced. Barnes is á juvenile offender and subject to the new statutes enacted for sentencing juveniles convicted as adults. These statutes allow the trial court to consider the juvenile offender’s ‘‘youth and its attendant characteristics,” including the juvenile’s immatu-' rity, lack of judgment, and possibility of rehabilitation in determining whether to impose a life sentence. § 921.1401(2), Fla. Stat. (2014). At a minimum, Barnes’s subsequent criminal behavior with convictions is relevant to the possibility of his rehabilitation. Id. § 921.1401(2)(j). His subsequent criminal behavior is equally relevant to help the trial court determine his “immaturity, impetuosity, or failure to appreciate risks and consequences” in participating in the offense and “[t]he effect, if any, of characteristics attributable to the defendant’s youth on the defendant’s judgment.” Id. § 921.1401(2)(e), (i). Simply put, his subsequent arrests with convictions may help the sentencing court determine whether Barnes was a juvenile offender whose crimes reflect “transient immaturity,” thereby warranting a lesser sentence, or that “rare” juvenile offender whose crimes reflect “irreparable corruption,” thereby warranting a life sentence. See Horsley v. State, 160 So.3d 393, 397 (Fla. 2015) (citing Miller v. Alabama, 567 U.S. 460, 479-80, 132 S.Ct, 2455, 183 L.Ed.2d 407 (2012)).

However, we agree, and the State concedes, that the amended sentencing documents contain a scrivener’s error as to the judicial review period for count two, which should be corrected to conform to the trial court’s written order granting Barnes’s rule 3.800(b)(2) motion. We remand the case to the trial court to correct the scrivener’s error on the amended sentencing documents dated January 26, 2017. See Taylor v. State, 120 So.3d 213, 213 (Fla. 5th DCA 2013). Barnes need not be present for entry of the corrected sentence.

AFFIRMED and REMANDED with instructions.

COHEN, C.J. and BERGER, J., concur.

      . The jury made an additional finding that Barnes possessed and discharged a firearm resulting in the victim’s death.

      . These judgments reflect that Barnes was convicted of eight counts of aggravated battery with a firearm, seven counts of aggravated assault with a firearm, and one count each of carrying a concealed firearm, battery on a law enforcement officer, and resisting an officer with violence.

      . The State did not appeal this ruling,


author: PER CURIAM.

text:
    Eric W. LONDON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0110
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Rehearing Denied October 12, 2017

      Eric W. London, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Richard F. BRYANT, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    CASE NO. 1D17-0287
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017.
    Richard F. Bryant, pro se, Appellant.
    Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of April 3, 2017, the appeal is dismissed without prei-udice to seek review upon rendition of a final order in the circuit court proceeding.

MAKAR, OSTERHAUS, and ' WINOKUR, JJ., CONCUR.


text:
    Christopher MCRAE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1954
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Christopher McRae, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 25, 2017, order denying defendant’s motions for postconviction relief in Duval County Circuit Court case number 16-2011-CF-001791-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).

ROBERTS, WETHERELL, and-ROWE, JJ., CONCUR.


text:
    Charles JONES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2988
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Charles Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Lambrix v. State, 698 So.2d 247 (Fla. 1996) (stating that claims of ineffective assistance of postconviction counsel do not present a valid basis for relief).

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Christopher Lee CLARK, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2781
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 29, 2017
    James S. Purdy, Public Defender and Cassie Rex, Assistant Public Defender, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 18, 2017, judgment and sentence in Case No. 2017-300241-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, WALLIS and LAMBERT, JJ., concur.


text:
    Corey REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-407
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 29, 2017
    D. Gray Thomas, of Law Office of D. Gray Thomas, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Corey Reynolds, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of counsel. Appellant alleges that his counsel was ineffective for failing to pursue an involuntary intoxication defense, and that counsel incorrectly believed that an involuntary intoxication defense was unavailable to Appellant. In summarily denying the motion, the trial court reasoned that “[c]ounsel made a reasonable strategic decision to present a theory of defense based on the accidental discharge of a firearm.”

Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless “it is so obvious from the face of the record that trial counsel’s strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.” Hannon v. State, 941 So.2d 1109, 1138 (Fla. 2006). Based on this record alone, however, we cannot conclude that “it is so obvious ... that trial counsel’s strategy ... is very clearly a tactical decision well within the discretion of counsel.” Id. This is especially so given Appellant’s allegation that counsel was operating under the mistaken assumption that an involuntary intoxication defense was unavailable to Appellant. We therefore reverse and remand for an evidentiary hearing.

REVERSED and REMANDED for Ev-identiary Hearing.

EVANDER, WALLIS, and EISNAUGLE JJ., concur.


text:
    Romayne O. MORRISON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1054
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 29, 2017
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vinceni>-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant Romayne Morrison appeals his convictions for attempted sexual battery and battery. We affirm his conviction and sentence for attempted sexual battery. However, the battery was part and parcel of the attempted sexual battery, and a separate conviction for that charge was precluded by double jeopardy. See, e.g., Parton v. State, 59 So.3d 1212, 1213 (Fla. 5th DCA 2011) (“[A] defendant can be convicted of both [attempted] sexual battery and battery. However, if the battery is based on the same acts that form the basis for the sexual battery, double jeopardy prohibits dual convictions.” (citations omitted)); Garcia v. State, 769 So.2d 449, 449 (Fla. 4th DCA 2000) (“[B]ecause there was one continuous offense in this case, and the battery was not separate from the sexual battery, double jeopardy prohibits the multiple convictions and punishments.”). We therefore vacate Appellant’s conviction and sentence for battery.

AFFIRMED IN PART; VACATED IN PART.

COHEN, C.J., WALLIS and LAMBERT, JJ„ concur.

      . Appellant was also convicted of false imprisonment, but he does not challenge that conviction on appeal.


author: KELSEY, J.

text:
    Stephen LUKACS, Father, Appellant, v. Christina Brooke ICE, Mother, Appellee.
    CASE NO. 1D16-2354
    District Court of Appeal of Florida, First District.
    Opinion filed September 29, 2017.

      Gary Baker, Callahan, for Appellant.
    Christina Brooke Ice, pro se, Appellee.
   KELSEY, J.

Stephen Lukács appeals from a final judgment of paternity involving three children born to' his ex-girlfriend, Appellee Christina Ice, while the couple lived together. The relationship and the litigation have been contentious. Each party accused the other of violent behavior and questioned the other’s fitness to parent the children. The circuit judge had presided over this father’s prior dissolution action, which involved similar dynamics. The trial court, remembered and commented upon the previous case and earlier accusations back and forth in this case, some of which turned out to be unfounded. The court took evidence and heard argument, then entered the judgment on appeal finding .the father was the biological father of the children, awarding the mother majority timesharing, allowing her to move with the children from Nassau County to nearby St. Johns County, and setting the father’s child support obligation. The father argues that the trial court should not have adopted the mother’s proposed order verbatim, and that the order contains insufficient findings in support of the trial court’s resolution of the other issues. He also argues that the trial court should have been disqualified after commenting .on previous proceedings and claims. We have examined the record carefully and find each of the father’s arguments to be without merit. Accordingly, we affirm.

As a threshold matter, we reject the father’s argument that the trial court erred by adopting the mother’s proposed final judgment verbatim. The practice is not always advisable, - but. as we have held before, is not impermissible absent evidence of impropriety:

Reversal is required ... only when the signed judgment or a.finding is inconsistent with an earlier pronouncement of the trial judge, where the “appearance of impropriety so permeated the proceeding below as to justify a suspicion of unfairness,” or where the record establishes that the final judgment does not “reflect the trial judge’s independent decision on the issues of a case.”

Cole Taylor Bank v. Shannon, 772 So.2d 546, 551 (Fla. 1st DCA 2000) (citations omitted). The circumstances of concern identified in Shannon do not exist here, so reversal is not warranted.

On the merits, we review the final judgment for abuse of discretion, and accept the court’s findings of fact if supported by competent, substantial evidence. Witt-Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016); Raulerson v. Wright, 60 So.3d 487, 489 (Fla. 1st DCA 2011); Norris v. Heckerman, 972 So.2d 1098, 1099 (Fla. 1st DCA 2008); see Bainbridge v. Pratt, 68 So.3d 310, 311, 313 (Fla. 1st DCA 2011) (“[T]he trial court abused its discretion where there was no' competent substantial evidence supporting that the ordered parenting plan was in the best interests of the minor child.”). “[A] discussion of the relevant factors can be helpful in determining whether the trial court’s judgment is supported by competent, substantial evidence.” Bainbridge, 68 So.3d at 313. However, the court is not required to address each of the statutory factors when crafting a parenting plan, so long as the record supports the court’s decisions. We find the judgment supported by competent, substantial evidence. Therefore, the trial court did not abuse its discretion, and we affirm.

Finally, the father challenges the trial court’s denial of his motion to disqualify the trial judge. The father previously challenged the court’s denial of this same motion via prohibition, which we denied on the merits. Lukacs v. Ice, 162 So.3d 990 (Fla. 1st DCA 2015) (table). The argument fares no better the second time around, but is worth brief discussion. The motion was patently untimely, because it was filed nearly a year after the judge made the comments on which the father relied to claim fear.of not getting a fair trial. See Fla. R; Jud. Admin. 2.330(e).

The motion to disqualify also Ms on the merits. A motion for disqualification should be granted when the judge’s comments instill in the moving party a well-founded fear that the court has prejudged the case. R.M.C. v. D.C., 77 So.3d 234, 236 (Fla. 1st DCA 2012); see Minaya v. State, 118 So.3d 926, 929 (Fla. 5th DCA 2013) (stating that “a judge may form mental impressions and opinions during the hearing of evidence” but cannot “prejudge the case”). A mere subjective fear will not suffice; it must be objectively reasonable. R.M.C., 77 So.3d at 236.

This Court has found that a motion to disqualify should be granted where a judge makes negative comments about a party that are unnecessary to resolving the issue before it. Owens-Corning Fiberglas Corp. v. Parsons, 644 So.2d 340, 342 (Fla. 1st DCA 1994). In that case, during an emergency hearing to strike a witness, the court mentioned that it felt Owens-Corning previously failed to mediate in good faith and tried to be “devious” and “less than forthright.” Id. at 341. The comments were improper because, as the court admitted, this previous failure had nothing to do with the witness issue it was currently handling. Id.

In contrast, where a judge’s comments are directed to the issue the court is currently handling, a motion to disqualify can be denied. Strasser v. Yalamanchi, 783 So.2d 1087, 1092-93 (Fla. 4th DCA 2001). The trial judge in that case castigated the defendant for its perceived dishonesty about the mysterious disappearance of a computer hard-drive containing data crucial to the plaintiffs case. Id. at 1091. The court commented, “I wouldn’t have batted an eye at a $100,000 fine in this case,” and it “[s]ure does cause the hackles on the back of my neck to rise in suspicion when I hear the only thing missing is what plaintiff wanted.” Id. The appellate court explained that the comments related to the issue before the trial court and “express[ed] the understandable frustration and concern that the trial judge must have experienced when confronted with the sudden and unexplained revelation concerning the missing hard-drive.” Id. at 1092.

Here, the court made comments that weighed directly on the issue at hand— whether the father should have contact with the mother and the children—and did not stray into unrelated areas like the judge’s comments in Owens-Coming. These comments, though maybe not “our words of choice,” id. at 341, do not create an objectively reasonable fear that the trial court would not give the father a fair trial. Therefore, the motion was properly denied.

The order on appeal is AFFIRMED.

WOLF and ROWE, JJ., CONCUR.


text:
    Earnest D. BOLTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3501
    District Court of Appeal of Florida, First District.
    Opinion filed October 3, 2017
    Ernest D. Bolton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR. •


text:
    Michael Ray CLINES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2117
    District Court of Appeal of Florida, First District.
    Opinion filed October 3, 2017
    Michael Ray Clines, 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.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Claribell OKOLI, Appellee.
    CASE NO. 1D16-5710
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017.
    David M. Snyder of David M. Snyder Professional Association, Tampa; Susan B. Morrison of Law Offices of Susan B. Morris, P.A. Tampa; Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Tracy J, S. Frasier of Smith Frasier, P.A., Gainesville, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

ROBERTS, WETHERELL, and ROWE, JJ„ CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Claribell OKOLI, Appellee.
    CASE NO. 1D16-5708
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017
    David M. Snyder of David M. Snyder Professional Association, Tampa; Susan B, Morrison of Law Offices of Susan B. Morris, P.A, Tampa; Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Tracy J. S. Frasier of Smith Frasier, P.A., Gainesville, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal),

ROBERTS, WETHERELL, and ROWE, JJ„ CONCUR.


text:
    Shauna Ann FROST, Appellant, v. Jerome John FROST, Jr., Appellee.
    CASE NO. 1D17-0196
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.
    Stephen K. Johnson, Law Offices of Stephen K. Johnson, LLC, Gainesvilie, for Appellant.
    Christina Nieto Seifert,, Lake City, for Appellee.
   PER CURIAM.

The former wife challenges a final judgment of dissolution of marriage and raises four issues on appeal. We affirm as to all four issues but write to explain that the former wife did not properly preserve one issue for appellate review: whether the trial court abused its discretion by not setting forth the steps the former wife must take to restore unsupervised visitation with the minor child. As it was not preserved, we decline to reach the merits of whether the trial court should have addressed these steps. ■

During the entire course of this case, the former husband sought to limit the former wife's contact with the minor child to supervised visitation. The trial court wrote an extensive order explaining his' reasons for only allowing supervised visitation, and those reasons were supported by competent, substantial evidence. The former wife, however, did not alert the trial court that she wanted the court to address the steps she could take to reestablish unsupervised visitation, either by filing a motion for rehearing or through any other means. This court has consistently held that absent fundamental error, we will not address legal issues not presented to the trial court. Freiha v. Freiha, 197 So.3d 606 (Fla. 1st DCA 2016); Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007).

In Freiha, the appellant challenged the trial court’s final order providing the ap-pellee with the majority of time sharing without providing a parenting plan that included a time-sharing schedule. Id. at 607. We found that the appellant had not properly preserved the issue for appellate review because he had not raised the issue in a timely motion for rehearing. Id. at 608. However, we nonetheless reversed, finding that the trial court’s total failure to address and adopt a time-sharing plan constituted fundamental error. Id. at 608-609.

The error in this case, if any, is not fundamental. Fundamental error is defined as “ ‘error which goes to the foundation of the case or goes to the merits of the cause of action.’ ” Freiha, 197 So.3d at 608 (quoting Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002)). To date, it does not appear that any court has held that a trial court’s failure to adopt a reunification plan constitutes fundamental error.

This case is distinguishable from Freiha. Freiha involved a total failure to address the focal issue of the litigation. In this case, the trial court spent extensive time reviewing the issue of visitation. The court also ruled based on its extensive experience with the former wife, which was outlined in the order. Thus, there does not appear to be a total failure to make a decision concerning a critical issue; rather, the issue is more of a disagreement with the way in which the trial court ruled on the visitation issue. As such, there was no fundamental error in this case.

We, therefore, AFFIRM.

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Timothy Donald HELTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-2656
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We originally reversed Helton’s conviction for aggravated battery and remanded for a new trial based on this court’s decision in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014). However, the Florida Supreme Court quashed our original opinion in this case and remanded for reconsideration upon application of its decision in State v. Floyd, 186 So.3d 1013 (Fla. 2016). Based on that decision, we reject Helton’s argument that the jury instructions regarding the duty to retreat were fundamentally erroneous.

However, we agree that Helton’s conviction for aggravated battery was improperly reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2010), based on the use of a weapon, which was an essential element of the offense. In finding Helton guilty of aggravated battery, the jury determined that in the course of committing the aggravated battery, Helton both “caused great bodily harm, permanent disability or permanent disfigurement to [the victim]” and “used a deadly weapon.” Helton’s conviction for aggravated battery under both statutory theories cannot be reclassified pursuant to section 775.087(1) because it cannot be determined that the conviction was not based on the use of a deadly weapon. Frasier v. State, 132 So.3d 365 (Fla. 1st DCA 2014). Accordingly, we reverse and remand for resen-tencing of the offense as a second-degree felony.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.


author: WINOKUR, J. MAKAR, J.,

text:
    T.S., a Child, Appellant, v. STATE of Florida, Appellee.
    CASE NOS. 1D17-0744, 1D17-0746, & 1D17-0748
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017

      Andy Thomas, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

In these consolidated cases, the juvenile appellant, T.S., argues that the trial court reversibly erred in deviating from the Department of Juvenile Justice’s recommendation without complying with the requirements of E.A.R. v. State, 4 So.3d 614 (Fla. 2009). We agree and reverse.

While on probation in two cases, T.S. was arrested and charged' with grand theft auto, possession of cocaine, possession of cannabis, and driving without a valid driver’s license. T.S. was also charged with violating probation based on these ‘ offenses. T.S. admitted violating probation and pled guilty to the new offenses. Upon the trial court’s directive, the Department prepared a pre-disposition report (“PDR”). The PDR described T.S.’s criminal record and found that he was a “moderate-high risk” to reoffend, but stated that he was “not too far gone that he cannot be reached.” The PDR recommended that T.S. be committed to a “minimum-risk” nonresidential .program at the American Marine Institute in Jacksonville (“AMI”).

At the disposition hearing, the State argued that T.S. should be committed to a nonsecure residential program, which, unlike AMI, would not permit him to live at home. The State pointéd to the seriousness of T.S.’s offenses, his misbehavior in school, and his violations of probation. Counsel for T.S. argued that the trial court should accept the recommendation of the Department.-

The trial court committed T.S. to a nonsecure residential program. The trial court explained its reasoning for departure as follows:

At this time I don’t think that—I’m going to not send him to Marine Institute and require a residential setting.
And I’m doing this, ma’am, to help him. I am not doing this really to punish him. I don’t think he is going to make it right now. And I’m looking at a little bit longer range.
So I’m doing this hopefully to benefit him. Because I don’t think his chances of success with his history are very promising at the Marine Institute.
So I’m hoping that what I do will turn him and his behavior around, will get the drug treatment that he needs because I just don’t think right now his judgment is good enough for me to count on him to get it outside of a residential setting.

The State asked if the trial court was deviating based on T.S. posing a danger to the community, and the’ trial court answered that it was.

Whether the trial court complied with the legal standard set forth in E.A.R. is reviewed de novo. M.J. v. State, 212 So.3d 534, 536 (Fla. 1st DCA 2017). Under E.A.R., a trial court may not depart from the Department’s recommendation merely because it disagrees; instead, it must provide reasons that are supported by a preponderance of the evidence. 4 So.3d at 638. The standards the trial court must meet are as follows:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. The trial court’s stated reasons must provide a “legally sufficient foundation” for departing from the Department’s recommendation, which is accomplished “by identifying significant information that [the Department] has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id.

(3) Here, the trial court gave nonspecific reasons in support of departure. The trial court did not articulate anything about the respective characteristics of the different restrictiveness levels as required under E.A.R. Nor did it explain why the nonsecure residential level was better suited to serving both T.S.’s , rehabilitative needs—in the least restrictive setting- and maintaining the ability of the State to protect the public from further acts of delinquency than the Department’s .minimum-risk recommendation. While the trial court may have relied on its experience and personal knowledge to determine that a nonsecure residential program was more suitable, its reasoning on the record was insufficient under the rigorous requirements of E.Á.R.

We are mindful of the seeming discrepancy between the text ' of section 985.433(7)(b), Florida Statutes, and the requirements of E.A.R. that Judge Makar identifies in his concurring opinion. Here, for example, although the trial court did not comply with E.A.R., it stated that it doubted that T.S.’s “chances of success with his history are véry promising at the Marine Institute” and hoped that a more restrictive commitment might “turn him and his behavior around, [and] get the drug treatment that he. needs because I just don’t think right now his judgment is good enough for me to count on him to get it outside of a residential setting.” But for E.A.R., we would find that this reasoning is sufficient under the statute, and that the failure to specifically reference the “respective characteristics of the opposing restrictiveness levels,” E.A.R. at 638, .would .be, at most, harmless error. Regardless, E.A.R. is clear on this matter and leaves .no room for harmless-error analysis. As we are constrained by E.A.R., we reverse' the trial court’s dispositions and remand for resentencing with, instructions to either enter a disposition order that includes the requisite E.A.R. findings or, if such findings cannot be made, enter an order committing T.S. to a minimum-risk nonresidential facility as recommended by the Department. See M.J., 212 So.3d at 538.

REVERSED and REMANDED.

B.L. THOMAS, C.J., CONCURS. MAKAR, J. CONCURS WITH WRITTEN OPINION.

MAKAR, J.,

concurring.

I concur, albeit with misgivings, because the broad holding of E.A.R. v. State requires that we substitute our appellate judgment for that of trial judges who preside in juvenile delinquency dispositions by applying a strict judicially-created standard that substantially narrows the trial judge’s discretion, even though the legislative structure of the dispositional process itself does not mandate this intense degree of intercession. 4 So.3d 614, 635-39 (Fla. 2009); see also id. at 642 (Canady, J., dissenting). The statute merely says that a trial court “shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.” § 985.433(7)(b), Fla. Stat.

Ordinarily, appellate review of compliance with this type of statutory standard would entail whether competent substantial evidence supports a trial judge’s findings and reasons and whether her decision to disregard the agency’s dispositional recommendation is an abuse of discretion. But that was the dissent’s view in E.A.R., 4 So.3d at 640 (Canady, J., dissenting). Instead, under E.A.R., our review accords the trial court little deference, effectively upending the appellate paradigm. We are compelled to determine whether the trial court provided a sufficiently “logical and persuasive” explanation that flows from “a full reasoning and understanding on the record” as to why “ ‘one [dispositional] level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.’ ” M.J. v. State, 212 So.3d 534, 537-38 (Fla. 1st DCA 2017) (quoting E.A.R., 4 So.3d at 638). Appellate review under E.A.R. is deemed “rigorous,” making it “a difficult matter” to disregard an agency recommendation such that doing so “is no easy task and will take time and consideration.” M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011).

Again, the statute itself doesn’t compel this degree of appellate inquiry; E.A.R. does, which binds us in the task to be performed. Ensuring that dispositions are done in a thoughtful way that protects society while placing juveniles in appropriate levels ,of restrictiveness is commendable, but where the record supports a dis-positional order—as in this case and others (such as M.H., 69 So.3d at 328 and B.L.R. v. State, 74 So.3d 173, 176 (Fla. 1st DCA 2011))—it makes little sense to reverse and remand for the trial court to amend the dispositional order by rotely inserting record evidence. The E.A.R. ship left the dock in 2009, but its wake shouldn’t preclude upholding dispositional orders under a harmless error approach. B.L.R., 74 So.3d at 178-79 (Wolf, J., dissenting) (suggesting that the failure to comply with E.A.R. may be harmless error in some circumstances).


text:
    Nancy Smith SCHROLL, Appellant/Cross-Appellee, v. Stephen B. SCHROLL, Appellee/Cross-Appellant.
    CASE NO. 1D16-3590
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.

      Laura E. Keene of Beroset & Keene, Pensacola, for Appellanf/Cross-Appellee.
    Therese A. Felth of McKenzie Law Firm, P.A., Pensacola, for Appellee/Cross-Appellant.
   PER CURIAM.

This appeal and cross appeal .are taken from a final judgment of dissolution of marriage. The former wife, Nancy Smith Schroll, challenges the trial court’s failure to award her sufficient permanent periodic alimony and attorney’s fees and costs, The former husband, Stephen B. Schroll, attacks the trial court’s valuation and distribution of marital assets and liabilities. For the reasons,that follow, we reverse in part and remand for further proceedings. In all other respects, the judgment is affirmed.

I, Relevant Facts

After' thirty-two years of marriage, Ms. Schroll petitioned for dissolution of the parties’ marriage. The primary issues before the trial court were eqúitable distribution of the marital assets and liabilities, alimony, and attorney’s fees and costs. At the time of the dissolution of marriage, the parties had acquired slightly more than $2,000,000 in assets from profits generated by their business, Storkland, a retail store specializing in the sale of baby items. The parties’ assets consisted of the commercial building housing Storkland, the inventory of‘Storkland, multiple retirement and investment accounts, and various personalty.

Mr. Schroll was responsible for managing Storkland while Ms. Schroll would assist as a sales clerk. Mr.. Schroll claimed that Storldand’s sales had been steadily decreasing since 2012 due to competitioii from large chain stores and online retailers. He testified that during the pendency of the dissolution action, he used marital funds to pay for his and Ms. Schroll’s living expenses, the cost of both parties’ relocation, both parties’ temporary attorneys’ fees, new vehicles for both parties, and paying off the mortgage on the marital home before it was sold. He further testified that he gave significant funds to one mutual daughter for her wedding and another mutual daughter for her purchase, of a house.

The trial court entered a final judgment dissolving the parties’ marriage and setting forth the distribution of the parties’ assets. The court adopted Ms. Schroll’s proposed equitable distribution schedule, which valued the marital assets as of the date of filing. Ms. Schroll was awarded assets purportedly totaling $1,222,120, and Mr. Schroll was awarded assets worth $1,274,752. The parties’ marital liabilities were valued at $22,147 and attributed to Mr. Schroll. According to the equitable distribution schedule adopted by the court and incorporated into the final judgment,' the parties were each awarded $1,210,015 in assets.

The court further found that there was no dissipation or waste of marital assets by Mr. Schroll. The court noted that Ms. Schroll was awarded over $1,000,000 in assets in the equitable distribution and concluded, “Although the Respondent/Husband may have the ability to pay alimony, the Court does not believe' the Petitioner/Wife has a need for the same and denies the Petitioner/Wife’s request for alimony.” The court ordered both parties to pay their own attorneys’ fees and'costs.

Both parties moved for rehearing, raising each of the issues addressed in this opinion. The trial court subsequently entered an “Amendment to Final Judgment of Dissolution of Marriage,” ordering Mr. Schroll to pay nominal permanent alimony of $1.00 per month and vacating the equitable distribution schedule previously incorporated into the final judgment because it contained • “mathematical errors.” The court stated that all other provisions in the final judgment were to remain in full force and effect. The court adopted a new attached equitable distribution schedule, which indicated Ms. Schroll was awarded assets worth $1,231,633.50 and Mr. Schroll was awarded assets worth $1,253,780.50. The marital liabilities of $22,147 were again attributed to Mr. Schroll, which resulted , in both parties being awarded $1,231,633.50 in assets. This appeal and cross-appeal follow.

II. Equitable Distribution

We first turn to the challenges to the trial court’s equitable distribution scheme. A court’s rulings on equitable distribution are reviewed for abuse of discretion. Boutwell v. Adams, 920 So.2d 151, 153 (Fla. 1st DCA 2006). When distributing the marital assets and liabilities between parties, courts must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including the factors set 'forth in section 61.075(l)(a)-(j), Florida Statutes (2016). See Watson v. Watson, 124 So.3d 340, 342-43 (Fla. 1st DCA 2013). The date for determining the value of marital assets and the amount of marital liabilities is the date or dates as the court determines is “just and equitable under the circumstances.” § 61.075(7), Fla. Stat. (2016). Should it be necessary for the court to craft an unequal distribution, it must include findings to substantiate the disparity. Watson, 124 So.3d at 342.

A. Valuation of Money Market Accounts

Mr. Schroll argues the trial court erred when it valued the parties’ BBVA money market account and Vanguard brokerage account as of the filing date of the petition for dissolution, as those funds had been depleted for marital purposes from the date of filing, and there was no finding of intentional waste or dissipation of those assets by Mr. Schroll during the divorce proceedings. Based on the record before us, we agree.

This Court has previously held that “[slums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage ... should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.” Ballard v. Ballard, 158 So.3d 641, 642-43 (Fla. 1st DCA 2014) (citing Zvida v. Zvida, 103 So.3d 1052 (Fla. 4th DCA 2013)); see also Winder v. Winder, 152 So.3d 836, 838 (Fla. 1st DCA 2014) (trial court abused its discretion by .including dissipated funds in the equitable distribution scheme where “[t]he uncontradicted evidence shows that the dissipated funds were used to pay marital expenses while the dissolution was pending, including temporary support for the Wife”). To include dissipated assets in an equitable distribution scheme, the court must make a “specific finding that the dissipation resulted from intentional misconduct.” Bateh v. Bateh, 98 So.3d 750, 753 (Fla. 1st DCA 2012); see also Ballard, 158 So.3d at 643; Walker v. Walker, 85 So.3d 553, 555 (Fla. 1st DCA 2012).

Here, the unrefuted evidence shows that during the course of the dissolution proceedings below, Mr. Shroll used funds from the parties’ BBVA money market account and the Vanguard brokerage account to pay for the parties’ living expenses, including attorneys’ fees and costs, new vehicles for both parties, moving expenses, and paying off the mortgage on the former marital residence before it sold. By the time of the final hearing, the funds in the BBVA account had been exhausted. The Vanguard account had been reduced from $451,146, as of the date of filing, to $381,220, around the time of the final hearing. Yet, the court valued these accounts as of the date the petition for dissolution was filed. Because the court did not find any misconduct by Mr. Schroll in the dissipation of these two assets, it was an abuse of discretion to value these accounts as of the date of filing. On remand, the court should revisit the equitable distribution scheme and exclude the funds dissipated for marital purposes.

B. Valuation of Investment Accounts

Mr. Schroll further argues that the trial court reversibly erred when it valued certain investment assets as of the date of commencement of the dissolution action instead of a date closer to the final hearing because those assets had significantly declined in value during the course of litigation due to passive market forces, outside of the control of either party. While the court has the discretion to decide the valuation date of marital assets as the court determines is “just and equitable under the circumstances,” without an explanation as to why the court valued these assets as of the date of filing, we are not able to determine from this record whether the court considered the decrease in value of these assets in fashioning the equitable distribution. See Byers v. Byers, 910 So.2d 336 (Fla. 4th DCA 2005) (trial court abused its discretion in allocating parties’ assets without accounting for passive appreciation of 401(k) account where court gave no explanation as to why it settled on date of filing as valuation date). On remand, the court should address the propriety of the valuation date of these investment assets and account for the passive changes in value in fashioning an equitable distribution award.

C. Valuation/Distribution of Business Assets

Mr. Schroll additionally alleges that the trial court abused its discretion when it awarded him the value of Stork-land’s inventory and' the Storkland business account in the absence of evidence regarding Storkland’s fair market value. In so doing, Mr. Schroll contends that the court completely ignored the costs of doing business and debts belonging to Storkland. We agree to the extent that the trial court should have included Storkland’s accounts payable as a marital liability as part of the equitable distribution. But we assign no fault to the court for failing to take into account the fair market value of the Stork-land business in constructing the equitable distribution scheme when neither party squarely presented evidence regarding that issue to the court. See Simmons v. Simmons, 979 So.2d 1063, 1066 (Fla. 1st DCA 2008) (Benton, J., dissenting) (“I agree with the majority opinion that a party who adduces no proof as to the value of property should not be heard on appeal to complain about the final judgment’s failure to pluck a.value out of thin air to assign to the property.”). The court should revisit this issue on remand and revise the equitable distribution accordingly.

III. Alimony

Turning to Ms. Schroll’s arguments on appeal, she first contends that the trial court abused its discretion in refusing to award her more than a nominal permanent alimony award and in not adequately addressing the presumption favoring the award of permanent periodic alimony in relation to the parties’ long-term marriage.

In determining whether to award alimony, the trial court, must make specific factual determinations with regard to the needs of the spouse requesting alimony and the ability of the other spouse to provide the necessary funds. § 61.08(2), Fla. Stat. (2016); Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980). If the court finds that one spouse has an actual need for alimony and the other spouse has the ability to pay, the court must then consider “all relevant factors,” including those listed in section 61.08(2), in determining the proper type and amount of alimony. Permanent alimony is designed to provide for the needs and necessities of life for a former spouse as they were established during the marriage. § 61.08(8), Fla. Stat. (2016). ’

In Broemer v. Broemer, 109 So.3d 284 (Fla. 1st DCA 2013), this Court recognized that there is a rebuttable presumption of entitlement to permanent periodic alimony in marriages -of longer than seventeen years and found that the trial court “failed to address the initial rebuttable presumption or explain why it does not apply in this case.” Id. at 290. We concluded that remand was necessary because the lack of required findings of fact prevented us from reviewing the alimony issue in a meaningful way. Id. at 289.

As to the propriety of awarding nominal permanent periodic alimony, this Court has instructed, “should the trial court find it is faced with a situation where the Wife has a clear need for permanent alimony, but it is established that the Husband does not have the current ability to pay ... a nominal award- of permanent alimony would presérve the trial court’s jurisdiction to revisit this matter, until there is a substantial change in the parties’ respective financial circumstances.” Winder, 152 So.3d at 841-42 (citations omitted).

Here, the trial court awarded Ms. Schroll nearly $600,000 in liquid assets and approximately $600,000 worth of retirement investments. On this basis, the court concluded in the final judgment that Ms. Schroll had no need for alimony. The court’s subsequent award of nominal permanent periodic alimony to Ms. Schroll in the amendment to the final judgment, without any additional findings, appears inconsistent with its earlier conclusion that she had no need for alimony and fails to addrbss ‘ Mr. Schroll’s ability—or lack thereof—to pay.

On remand, the trial court should revisit the issue of alimony and assess Ms. Schroll’s potential need for permanent alimony as this Court instructed in Broemer, 109 So.3d at 290, in light of any substantial alteration of the parties’ financial positions upon the recalculation of the equitable distribution of assets and liabilities based on this opinion. Additionally, the court should make explicit findings regarding the Ms. Sehroll’s need and Mr. Schroll’s ability to pay, and if the court- determines that an award of alimony is proper, it should consider all relevant factors, including those set forth in section 61.08(2), when determining the proper type and amount of the award.

IV. Attorney’s Fees

Ms. Schroll next contends that the trial court abused its discretion in failing to award her attorney’s- fees. - The issue of whether Ms. Schroll is entitled to attorney’s fees and costs hinges upon the reallocation of the equitable distribution and whether she is awarded permanent periodic alimony on remand, Thus, the trial court should revisit the issue of Ms. Schroll’s potential entitlement. to attorney’s fees pursuant to section 61,16(1), Florida Statutes, ..based on the extent to- which the parties’ respective financial circumstances are altered on remand.

AFFIRMED in part; REVERSED and REMANDED in part.

WOLF, RAY, and BILBREY, JJ., CONCUR.

      . These assets include the Prudential Annuity #8841, the Stifel/Protective Life #7663, Stifel /Transamerica IRA #8706, and the Sti-fel/Transamerica IRA #8763.


text:
    B AND H MIRACLE, LLC, a Florida limited liability company; Francis L. Baker, an individual and James E. Hollis, Sr., an individual, Appellants, v. WELLS FARGO BANK, N.A., a national banking association f/k/a Wachovia Bank, N.A., a national banking association, Appellee.
    CASE NO. 1D16-3549
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Stephen C. Bullock of Brannon, Brown, Haley, & Bullock, P.A., Lake City, for Appellants.
    Marie Tomassi and Stephanie C. Lieb of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís,, P.A., Tampa, for Appel-lee.
   PER CURIAM.

Appellants challenge several aspects of a deficiency judgment. We reverse the award of attorney’s fees for lack of proof, and otherwise affirm the judgment.

Though Appellee claimed to have filed affidavits supporting its plea for attorney’s fees at the hearing, no such affidavits appear in the record. In fact, the record is devoid of any evidence supporting the award of attorney’s fees. In cases such as this where the record contains no competent substantial evidence of fees, the award is properly reversed without remand for taking additional evidence. Freiman v. Nat’l City Mortg. Co., 183 So.3d 1111, 1112-13 (Fla. 4th DCA 2015). Accordingly, we reverse the award of attorney’s fees without allowing further proceedings. We remand only for the trial court to ‘correct the judgment to reflect that the amount of the deficiency is $221,233.50.

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Kenyon Morell KEMP, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2958
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s revocation of probation, but we remand for entry of a written order'that is consistent with the oral pronouncement. See Gore v. State, 616 So.2d 189 (Fla. 1st DCA 1993).

AFFIRMED and REMANDED.

LEWIS, ROBERTS, and WINSOR, Jf, CONCUR.


text:
    Glenn Robert BROGA, Former Husband, Appellant, v. Linda Marie BROGA, Former Wife, Appellee.
    CASE NO. 1D16-20
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017.

      Emilian “Ian” Bucataru, Tallahassee, for Appellant.
    No appearance for Appellee.
   KELSEY, J.

We previously reversed several aspects of the final judgment dissolving these parties’ marriage, remanding for further proceedings. Broga v. Broga, 166 So.3d 183, 188 (Fla. 1st DCA 2015). The former husband appeals from the new order entered on remand, arguing the trial court erred in three respects: in imputing $80,000 of income to him on the assumption that he could secure a job as a corporate pilot while still maintaining his equal timeshar-ing with the parties’ minor children in Tallahassee; in requiring him to carry life insurance to secure payment of child support; and in ordering him to pay all of the former wife’s attorney’s fees for the first appeal and all post-remand proceedings. We affirm the life insurance requirement without further comment, but reverse the trial court’s rulings on imputed income and attorney’s fees and remand for further proceedings.

Imputed Income.

The former husband last worked as a pilot in 2013. The record evidence indicates that he is not qualified for a commercial pilot position because he does not have a bachelor’s degree. He would have to undergo re-certification training to qualify to pilot some aircraft, at great expense and far away from home. He has tried without success to obtain a corporate pilot position. At the time of the post-remand hearing, he was working for the state as a medical disability examiner earning $35,000 a year.

At the evidentiary hearing on remand, the former wife again failed to adduce competent, substantial evidence to support the trial court’s imputation of $80,000 income to the former husband. The former wife’s expert testified that he was unaware of any current corporate pilot positions in Tallahassee for which the former husband would qualify and that would work with the equal timesharing plan. The expert testified that contract pilot jobs—single, daily flight jobs—are always available through word of mouth, but he did not testify as to the income that could be earned through such ad-hoc flights. The former wife also failed to adduce evidence sufficient to establish the geographic bounds of the relevant employment community, and likewise failed to establish that the former husband could obtain a pilot position making $80,000 within an appropriate geographic area. Given this failure of proof, the trial court improperly imputed income to the former husband. See Broga, 166 So.3d at 186; Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008) (holding court abuses its discretion if findings on imputed income are not supported by competent, substantial evidence). We therefore again reverse the imputation of income to the former husband.

The former husband argues that, because the former wife already has had two opportunities to prove that income should be imputed to him and in what amount, and has failed, she should not be given a third bite at the same apple. While we agree that the evidence already of record is not legally sufficient to support the imputation order currently before the Court, the parties continue to have the right to seek relief on the basis of changed circumstances. See § 61.14, Fla. Stat. (2017). Absent legally sufficient evidence to support imputed income, however, the trial court must re-calculate former husband’s child support obligations and arrearages on the basis of his actual earnings. Nicholas v. Nicholas, 870 So.2d 245, 248 (Fla. 2d DCA 2004) (instructing trial court to base alimony and child support on actual income upon failure of proof to support imputed income).

Attorney’s Fees.

Because the trial court’s attorney-fee award was based on imputed income that we have reversed, the award cannot stand. We note also that the former husband obtained relief on the merits in the first appeal and again in this appeal, which must be taken into account. In addition, the trial court failed to make findings of fact distinguishing between costs of litigation attributable to improper vexatious litigation, and costs that would have been incurred absent any such inappropriate litigiousness. An award of fees for inequitable conduct should be rare, and must be supported by highly specific findings of fact. Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002) (“[A] finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.”). Any such award also must be apportioned between attorney’s fees and costs attributable to inappropriate conduct and those that would have been incurred in normal litigation. See Myrick v. Myrick, 214 So.3d 769, 772 (Fla. 2d DCA 2017) (holding “trial court must also explicitly apportion the amount of the award that is directly related to the attorney fees and costs that the opposing party incurred as a result of the additional work caused by the specific bad faith conduct of the other party”).

Finally, the trial , court also improperly faded to determine whether the former husband had the ability to pay the fee award. Sutter v. Sutter, 578 So.2d 788, 788-89 (Fla. 4th DCA 1991) (reducing award of fees to correspond to payor spoujse’s ability to pay, regardless of that spouse’s litigiousness). On remand, the trial court must make appropriate findings, supported by competent, substantial evidence, resolving these issues.

AFFIRMED in part, REVERSED in part, and REMANDED.

WINOKUR and WINSOR, JJ„ CONCUR.


text:
    Glynn T. MURPHY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-5788
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Michael Ufférman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions arid sentences for burglary of a dwelling and grand théft. On the State’s proper concession of error, we reverse solely as to the imposition of a discretionary fine and surcharge. The trial court imposed “$1,522.50 court costs and fines.” This lump sum included the felony fine pursuant to section 775.083, Florida Statutes, and the five percent surcharge pursuant to section 938.04. This fine and surcharge must be individually and specifically pronounced at sentencing, Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). We vacate the fíne and surcharge; On remand, the court may re-impose the fine and surcharge after giving Appellant notice and following the proper procedure.

We affirm in • all other respects, and reject, as we have before, the argument that a prison releasee reoffender sentence is unconstitutional if a jury did not make the finding that the defendant was released within the previous three years. See Williams v. State, 143 So.3d 423, 424 (Fla. 1st DCA 2014).

AFFIRMED in part and REVERSED in part,

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


author: PER CURIAM:

text:
    STATE of Louisiana v. Dontel KENNEDY
    No. 2017-KK-0724
    Supreme Court of Louisiana.
    09/29/2017
   ON SUPERVISORY WRIT FROM THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

L Granted. The trial court’s ruling excluding evidence of defendant’s prior aggravated battery conviction is hereby reversed and the matter .is remanded to the trial court for further proceedings.

Defendant is charged with the second degree murder of Joseph Kyle and the first degree rape, second' degree kidnapping, and armed robbery of J.W. After this court granted .defendant’s previous writ and remanded for reconsideration, of the state’s notice of intent to introduce other crimes evidence, in light of the decision in State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283, the trial court reversed its earlier decision and ruled the evidence of defendant's prior criminal conduct inadmissible, deeming it an “irrelevant prior act” offered only to establish his bad character. As discussed below, we grant the state’s writ to reverse the trial court’s ruling because the evidence of the prior offense is admissible for the limited purpose of proving intent.

1 gIf the element of intent is at issue, evidence of similar unrelated conduct is admissible to negate a defense theory that the accused acted without criminal intent and to show that he intended to commit the charged offense(s). La. C.E. art. 404(B). For evidence of a prior criminal act to be admitted as proof of intent, however, three prerequisites must be satisfied: (1) the prior act must be similar, (2) there must be a real and genuine contested issue of intent, and (3) the probative value of the evidence must outweigh its prejudicial effect. State v. Kahey, 436 So.2d 475, 488 (La. 1983).

Here, as to similarities between the crimes, though the prior conviction was a guilty plea to the offense of aggravated battery, an offense different from the several counts now charged, it is the similarity of the accused’s prior conduct itself that matters. There is evidence that in each instance the crimes occurred in or near the same area, a female was targeted, the victims were “pistol-whipped” with a semiautomatic handgun, a victim’s cell phone was taken, and the perpetrator acted with an accomplice. Considering these similarities, and mindful that the degree of similarity required to admit evidence of prior criminal conduct for the purpose of showing intent is lower than if it is sought to establish the defendant’s identity, this prong has been met.

As to whether the element of intent will be genuinely contested here, ^defendant argues he has been charged with general-intent crimes and therefore his intent will not be disputed. In light of the nature of J.W.’s (the surviving victim) accusations, however, and the physical evidence linking defendant to the rape, it appears reasonably likely that the state will have to negate a defense theory that J.W., who has admitted to acting as a prostitute, consented to getting into the vehicle with defendant and consented to having sexual intercourse with him. See, e.g., State v. Talbert, 416 So.2d 97, 100 (La. 1982) (“Normally if the act is proved, there can be no real question as to intent. However, under the facts of this particular case there is a real issue of the defendant’s intent to have intercourse without the victim’s consent.”). Thus, because this appears to be a case in which intent will be contested, at least with respect to some charges (kidnapping and rape), this prong has been met.

Finally, because the nature of the instant offenses is considerably graver than the conduct underlying defendant’s prior conviction—here there was a homicide and a rape—the probative effect of the evidence of his prior crime is weightier than any prejudice arising from its admission as proof of intent.

Accordingly, we reverse the trial court’s ruling excluding the evidence and find it admissible for the limited purpose of proving intent.

      . See State v. Kennedy, 16-1882 (La. 2/3/17), 215 So.3d 690. That intervention was warranted because the trial court did not initially hold a hearing before ruling on the admissibility of the evidence. Such an omission ran afoul of Taylor's holding that “a pre-trial hearing is required before the district court can make [] a ruling” as to admission of other crimes evidence. Taylor, 16-1124, p. 20, 217 So.3d at 296.

      . See, e.g., State v. Wilson, 50,418, pp. 17-19 (La. App. 2 Cir. 4/6/16), 189 So.3d 513, 526, writ denied, 16-0793 (La. 4/13/17), 218 So.3d 629. See also State v. Jackson, 625 So.2d 146, 150 (La. 1993) ("[W]here the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show intent with which the act charged was committed.” (quoting State v. Cupit, 189 La. 509, 179 So. 837, 839 (1938)); State v. Mills, 00-2525 (La. App. 4 Cir. 12/27/01), 806 So.2d 59 (other crimes evidence is excluded to show intent when crime charged is a general-intent crime, unless the parties dispute whether the accused intended to commit a crime), writ denied, 02-0278 (La. 10/25/02), 827 So.2d 1171.

      .If the evidence is offered as proof of the accused's identity, both the prior and instant conduct must be "peculiarly distinctive” in nature. State v. Langley, 95-2029, p. 6 (La. App. 4 Cir. 9/4/96), 680 So,2d 717, 721, writ denied, 688 So.2d 498, 96-2357 (La. 2/7/97); see also State v. Bell, 99-3278, p. 5 (La. 12/8/00), 776 So.2d 418, 421 ("The identity exception to inadmissibility under Article 404 B must be limited to cases in which the crimes are genuinely distinctive; otherwise, the rule may be swallowed up with identity evidence exceptions.”) (citing George W. Pugh et al, Handbook on Louisiana Evidence Law, Official Comments to Article 404 B, cmt. (6) (1988)).


text:
    STATE EX REL. Kendall JOHNSON v. STATE of Louisiana
    No. 2016-KH-1168
    Supreme Court of Louisiana.
    09/29/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth -in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars |aágainst successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Alvin CLARK v. STATE of Louisiana
    No. 2016-KH-1105
    Supreme Court of Louisiana.
    9/29/2017
   ON SUPERVISORY WRITS TO THE THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE

PER CURIAM:

| (Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr,P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notar bly, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Ryan HICKMAN
    NO. 2017-K-0142
    Supreme Court of Louisiana.
    09/29/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with the Court’s decision to deny this writ application, as I believe the record supports, the court of appeal’s conclusion that the defendant—convicted of possession of marijuana (second offense) and flight from an officer—should be adjudicated as a fourth-felony offender. I write separately to point out that this finding does not preclude the trial court from conducting a sentencing hearing to determine whether the defendant is entitled to a downward departure from the statutory minimum sentence. Complying with La. C.Cr.P. art. 894.1(C) and under an appropriate set of facts, I believe a trial court can impose a downward departure for certain non-violent offenses. See, e.g., State v. Guidry, 2016-1412, p. 7 (La. 3/15/17), 221 So.3d 815, 831 (Crichton, J., concurring); State v. Hagans, 2016-0103, p. 1 (La. 10/17/16), 202 So.3d 475 (Crichton, J., concurring); State v. Ladd, 2014-1611, p. 1 (La. 3/27/15), 164 So.3d 184 (Crichton, J., concurring); see also State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274; State v. Dorthey, 623 So.2d 1276 (La. 1993). However, in this case, successful advocacy on this point may be frustrated by defense counsel. As an example, defense counsel’s writ application to this court lacked legal support and was riddled with typographical errors, amounting to nothing more than an unsupported, near incomprehensible court filing. This defendant is entitled to a better showing by his counsel in this important case.

      . It is notable that Mr. Hickman s conviction for possession of marijuana (second offense)—while classified as a felony at the time of the April 30, 2013 offense—has since been downgraded to a misdemeanor by the legislature. See 2015 La. Acts 295 (eff. June 29, 2015). At the time, the offense was punishable by a maximum fine of $2000, imprisonment without or without hard labor for not more than five years, or both—a felony as defined in La. C.Cr.P. art. 933(3). Since the 2015 legislative session, the same crime is now a misdemeanor, punishable by a maximum of $1000, imprisonment in parish jail for not more than six months, or both. See La. C.Cr.P. art. 933(4).

      . I also note that this attorney was previously sanctioned by this Court. In re Wainwright, 2012-1392 (La. 6/29/12), 91 So,3d 304, reinstatement granted, 2014-2054 (La. 11/7/14), 152 So.3d 136 (eighteen-month suspension from the practice of law for neglecting clients’ legal matters),


text:
    STATE EX REL. Jerry Vaughn CLIFTON v. STATE of Louisiana
    No. 2016-KH-1086
    Supreme Court of Louisiana.
    9/29/2017
   ON SUPERVISORY WRITS TO THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON

PER CURIAM:

| ¶ Denied. Relator fails to show any error in the district court’s ruling. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C,Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam

12Attachment