text:
    Mark HOWARTH, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D16-3598
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Rehearing Denied June 26, 2017

      Mark Howarth, Milton, pro se. •
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock MeGuigan, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida.
    No appearance for other appellee.
   PER CURIAM.

Mark Howarth (the defendant) seeks review of the trial court’s order dismissing his petition seeking- a writ of habeas corpus. We affirm.

The defendant filed a petition seeking a writ of habeas corpus, arguing that the information filed against him suffered from incurable defects inasmuch as it charged lengthy timeframes with respect to the commission of each offense, making it impossible for him to formulate a defense.

The trial,court dismissed the petition, concluding that the defendant failed to serve his petition on the .State within 120 days of filing, as mandated by Florida Rule of Civil Procedure 1.070. However, the defendant’s petition was properly, tiled pursuant to the provisions of section 79.01 of the Florida Statutes (2016), and' rule 1.630 of the Florida Rules of Civil Procedure (2016). Specifically, rule 1.630 provides that a petitioner is not required to serve the, respondent with the petition,, but rather, upon determining that a habeas corpus petition demonstrates a prima facie case for relief, the trial court issues the writ of habeas corpus. See Fla. R. Civ. P. 1.630(d); Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996) (“Florida Rule of Civil Procedure 1.630 and Chapter 79, Florida Statutes, specify the procedure to be followed in habeas corpus proceedings before the trial court.”).

In Moore v. Ake, 693 So.2d 697 (Fla. 2d DCA 1997), the Second District reversed the trial court’s order dismissing the appellant’s petition for a writ of mandamus based on the failure to serve the respondents within 120 days. Writing for the court, Judge Altenbernd explained:

The trial court dismissed Kevin Moore’s petition for writ of mandamus because he failed to serve the respondents within 120 days. We'reverse because the trial court had an obligation under Florida Rule of Civil Procedure 1.630 to review Mr. Moore’s complaint when it was tiled, decide whether it established a prima facie case, and issue an alternative'writ of mandamus if the petition was facially adequate. Staton v. McMillan, 597 So.2d 940 (Fla, 1st DCA 1992). The petitioner was not required to serve the respondent with the complaint and could not serve the alternative writ until the trial court had performed the tasks required of it under the'rule. .

Id. at 697-698. Thus, the trial court erred in dismissing the defendant’s habeas corpus petition due to his purported failure to ensure that process was served upon the State within 120 days.

However, such error was harmless because the defendant’s petition was properly dismissed, albeit for a different reason: the defendant previously raised his challenge to the purportedly defective nature of the information in both his direct appeal and his rule-3.850 proceeding and, thus, he is improperly trying to use the vehicle of habeas corpus “to seek a second appeal or to litigate issues that ... were raised in a motion under rule 3.850.” Baker v. State, 878 So.2d 1236, 1241 (Fla. 2004). See Fla. R. Crim. P. 3.850.

Accordingly, we affirm the instant dismissal order because the trial court reached the correct result, but for the wrong reason. See Sullivan v. State, 913 So.2d 762, 763 (Fla. 5th DCA 2005) (“Even though the lower court erred in its finding of exceptional circumstances, we conclude that we should affirm under the ‘tipsy coachman’ rule because the trial court reached the right conclusion.”).

AFFIRMED.

SAWAYA, PALMER and TORPY, JJ., concur.


source: Caselaw Access Project

author: WALLIS, J.

license: Public Domain

text:
    Elton Lee BAKER, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D16-3334
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Elton Lee Baker, Lowell, pro se.
    Pamela Jo Bondi, Attorney General,. Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee, State of Florida.
    No Appearance for Other Appellee.
   WALLIS, J.

Elton Lee Baker appeals the Marion County trial court’s denial of his Emergency Petition for Writ of Habeas Corpus. Baker was convicted and sentenced in Sumter County to a twenty-year prison sentence for attempted sexual battery upon a child under twelve years of age and attempted lewd or lascivious molestation of a child under twelve years of age. In his petition, Baker challenged his convictions and sentences on the basis that the State failed to amend the charging information to reflect his conviction for a lesser-included offense. Baker also challenged the constitutionality of sections 749.011 and 800.04, Florida Statutes (2007), because they require no mens rea element.

When a petitioner challenges the validity of his or her conviction or sentence, jurisdiction in habeas proceedings lies with the trial court that imposed the judgment and sentence. See Sheriff v. Moore, 781 So.2d 1146, 1147 (Fla. 1st DCA 2001); Frederick v. State, 714 So.2d 1043, 1043 (Fla. 4th DCA 1998) (“Habeas petitions directed to trial issues must be brought in the circuit court for the county where the trial occurred.”). The State properly concedes that the Marion County court lacked jurisdiction to rule on the merits of Baker’s petition, which attacked his Sumter County convictions and sentences. Accordingly, we quash the trial court’s order and remand with instructions to transfer the petition to Sumter County. See Bush v. State, 945 So.2d 1207, 1214-15 (Fla. 2006).

ORDER QUASHED; REMANDED with Instructions.

BERGER, J., and JACOBUS, B.W., Senior Judge, concur.


author: PER CURIAM.

text:
    Judith K. STEPHENS, Appellant, v. Michael L. WHITTAKER, Appellee.
    Case No. 5D16-1631
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Lora S. Scott, of The Law Office of Lora S.Scott, LLC, Orlando, for Appellant.
    Sandra K. Ambrose, of Sandra K. Am-brose, P.A., Lake Mary, for Appellee.
   PER CURIAM.

Judith K. Stephens (“Former Wife”) appeals the final judgment dissolving her marriage to Michael L. Whittaker (“Former Husband”) following a bench trial. Former Wife raises four errors on appeal. First, Former Wife asserts that the trial court erred in failing to make specific findings of fact relating to the equitable distribution of the marital home. Second, she asserts that the trial court erred in its distribution of the marital credit card debt. Third, she argues that the court improperly denied her claim for alimony without making the requisite findings of fact pursuant to section 61.08, Florida Statutes (2015). Finally, Former Wife claims that the court erred in denying her request for an award of attorney’s fees without making specific factual findings under section 61.16, Florida Statutes (2015), regarding the parties’ respective need and ability to pay. We affirm.

Pursuant to section 61.075(3), Florida Statutes (2015), a trial court is required to identify the marital assets and marital liabilities, including the valuation of significant assets, the designation of which spouse shall be entitled to each asset, and which spouse shall be responsible for each liability. We review the court’s valuation and distribution of marital assets for an abuse of discretion. Coleman v. Bland, 187 So.3d 298, 299 (Fla. 5th DCA 2016) (quoting Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008)).

In this case, the trial court identified the parties’ home as a marital asset and found that Former Husband’s expert valued the home shortly before trial at $274,000. Moreover, from our review of the record, the court used this value when it found that the parties’ equity in the home was $154,000. The court thereafter distributed one-half of this equity ($77,000) to each party, subject to Former Husband’s entitlement to receive certain credits against Former Wife’s interest in the home for his payment of her portion of the property taxes, insurance, homeowner’s association fees, repairs, maintenance costs, and other fees associated with the home. While we agree that it would have been preferable for the court to have explicitly found in the final judgment that the value of the marital home was $274,000, we find no abuse of discretion in the court’s distribution of the marital home and the determination of credits.

As to the distribution of the credit card debt, Former Wife makes the vague and conclusory assertion that the trial court erred in ruling that each party is to be responsible “for their own credit cards,” but she fails to make any argument to support her assertion. Although the various credit cards were in the parties’ respective individual names, neither party disputes the court’s classification of the credit card debt as a marital debt. We note that the trial court did err in failing to place a value on this marital liability in its final judgment, thereby failing to demonstrate that its distribution of the marital property was, in fact, equitable. See Serbousek v. Lucas, 191 So.3d 539, 541-42 (Fla. 5th DCA 2016) (remanding for valuation of marital credit card debt to facilitate appellate review as to whether marital assets and liabilities were distributed equally). However, because Former Wife did not raise this error in her initial brief, we find that she has abandoned the issue. See Davis v. State, 153 So.3d 399, 400 (Fla. 1st DCA 2014) (“An appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue .... ” (quoting Prince v. State, 40 So.3d 11, 13 (Fla. 4th DCA 2010))). Because the vague and conclusory assertion raised by Former Wife regarding the court’s distribution of the credit card liability is legally insufficient, we affirm on this issue without further discussion.

Finally, on Former Wife’s argument that the trial court erred in failing to award to her alimony and attorney’s fees and not making statutorily mandated factual findings, the court instead found that the parties agreed that, due to their respective incomes and financial circumstances, there was “no need and no ability for ongoing alimony payments,” and they further agreed that neither party was entitled to an award of attorney’s fees from the other. Based upon our review of the record and Former Wife’s initial brief, we conclude that Former Wife has failed to establish error in either of these findings and has otherwise waived, abandoned, or failed to preserve for review her claims for retroactive or permanent alimony and attorney’s fees.

AFFIRMED.

PALMER, ORFINGER, and LAMBERT, JJ., concur.


author: PER CURIAM. COHEN, J.,

text:
    BANK OF NEW YORK MELLON TRUST COMPANY, etc., Appellant, v. Jeffery EICHER, Roberta Eicher, et al., Appellees.
    Case No. 5D15-3302
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 28, 2017
    Diana B. Matson and Joshua R. Levine, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for Appellant.
    Jose G. Oliveira, of Jose G. Oliveira, PA, ' Orlando, and Raymer F. Maguire, III, of Maguire Lassman, P.A., Orlando, for Ap-pellees, Jeffery and Roberta Eicher.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.

COHEN, C.J., concurs specially, with opinion.

COHEN, J.,

concurring specially, with opinion.

Our affirmance should not be read as approval of the rulings in this case. The trial court accepted arguments that conflated standing with-the .authority of a servicing ' agent to testify. Our decision merely rejects the argument that the errors below, unpreserved by objection, rise to the level of fundamental error.


author: SALTER, J.

text:
    Roque Esteban CALAFELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-852
    District Court of Appeal of Florida, Third District.
    Opinion filed May 3, 2017
    Rehearing Denied June 6, 2017

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant,
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Roque Calafell appeals his adverse jury verdict, conviction and sentences for first degree murder and robbery. We reverse his robbery conviction and .remand that charge for a new trial, concluding that his request for a special jury instruction on the afterthought defense was well taken and erroneously denied.

We affirm his conviction on the first degree murder charge because it rests on competent, substantial evidence establishing premeditation irrespective of the robbery conviction. The jury rendered a general verdict subsuming both first degree premeditated murder and felony murdér. The evidence independently establishing premeditation is sufficient to warrant affir-mance despite the reversal of the robbery conviction as a basis for a conviction for felony murder.

The Afterthought Instruction

Calafell’s defense counsel madé a timely' request for a special instruction on his “afterthought” defense, based on evidence that Calafell removed the victim’s property as an afterthought to the use of force in the criminal incident. While the trial court has discretion on whether to give a particular instruction, “in a criminal proceeding, the trial court’s discretion is limited by the defendant’s right to' have the jury instructed on any valid theory of defense supported by record evidence.” Cliff Berry, Inc. v. State, 116 So.3d 394, 406 (Fla. 3d DCA 2012).

The defendant is entitled to a special jury instruction if: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Wheeler v. State, 4 So.3d 599, 605 (Fla. 2009) (quoting Stephens v. State, 787 So.2d 747, 756 (Fla. 2001)). In this ease, the three requirements were present and the robbery conviction must be reversed.

Premeditated Murder

The reversal of the robbery conviction would require the reversal of a special interrogatory verdict for felony murder predicated on robbery as the underlying felony, as conviction by the jury on a lesser charge of theft (pursuant to the afterthought instruction and evidence) would not have supported a felony murder conviction. Here, however, the defense did not seek or obtain special interrogatories regarding premeditated first degree murder and felony murder.

In San Martin v. State, 717 So.2d 462, 470 (Fla. 1998), the Supreme Court of Florida followed the opinion of the Supreme Court of the United States in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), regarding a general jury verdict grounded on an alternative theory of guilt for which the evidence is sufficient. The Fifth District applied San Martin to the facts of a case similar to the case at hand in Davis v. State, 922 So.2d 438, 444 (Fla. 5th DCA 2006). In that case, the defendant sought reversal of his conviction for robbery and for first degree (premeditated and felony) murder based on the trial court’s erroneous denial of his request for an afterthought instruction.

The Fifth District reversed the robbery conviction based on the denial of the instruction, observing as well that if the afterthought theory “were believed by the jury, the robbery necessary to support the felony murder theory would be negated.” Id. Upon a review of the evidence of premeditation in the record, however, the Fifth District found “sufficient evidence to support the first degree premeditated murder conviction independent of the error relating to the felony murder conviction.” Id. at 445.

In the present case, Calafell told his girlfriend (who testified at trial and participated by luring the victim to the apartment shared by Calafell and the girlfriend) that he wanted to kill the victim. The victim told the couple he could obtain fraudulent social security cards for them, but did not deliver on that promise. Cala-fell’s presentation of evidence that the theft of the victim’s property was an afterthought — with its premise that the murder, not the theft, was the basis for luring the victim to Calafell’s and his girlfriend’s apartment — only provides additional indi-cia of premeditation regarding the murder.

Finally, Calafell’s reliance on Perkins v. State, 814 So.2d 1177 (Fla. 4th DCA 2002), is unavailing. That case also involved the erroneous denial of an afterthought instruction and evidence which would have supported a conviction of first degree murder under the separate charges of premeditated or felony murder. The defendant in Perkins testified to a “different version of events” based on self-defense and his claim “that he had never intended to rob the victim and had only stabbed him in selfde-fense.” Id. at 1178. The victim and defendant in that case had met in a bar that evening, in contrast to the longer course of dealing between Calafell and the victim in the case at hand, and in contrast to the defendant’s specific plan and preparation to murder (the kind of evidence detailed in Davis). In the case under review, Calafell did not testify, and thus did not contradict his girlfriend’s testimony regarding premeditation.

For these reasons, we reverse and remand the case for a new trial on Count II of the indictment, and we affirm the conviction and sentence for first degree murder. We find no merit in Calafell’s other issues on appeal.

Reversed in part, affirmed in part, and remanded for further proceedings on Count II.

      . The trial court acknowledged that the evidence was sufficiently close to permit the jury to determine that the victim’s property was taken as an afterthought after Calafell attacked the victim. This colloquy took place during the discussion of whether the felony murder charge could be submitted to the jury.

      . At the time of trial, defense counsel proposed an afterthought instruction at variance with the then-extant standard instruction in Criminal Jury Instructions 15.1. In re Standard Jury Inst. In Crim. Cases—Report No. 2012-09, 122 So. 3d 263, 284 (Fla. 2013). In the event that the State continues to prosecute the robbery charge on remand and the defense seeks an afterthought instruction, the standard form should be considered.


author: SUAREZ, C.J.

text:
    Rollin MONESTIME, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-166
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017.
    Rehearing Denied June 1, 2017

      Rollin Monestime, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   SUAREZ, C.J.

Rollin Monestime appeals from the trial court’s denial of his motion for return Of property pursuant to section 705.105, Florida Statutes (2016). We affirm.

Monestime was charged in 2006 with trafficking and money laundering. He went to trial and was convicted and sentenced to fifteen years. His direct appeal of his conviction and sentence was affirmed. Monestime v. State, 41 So.3d 1110 (Fla. 3d DCA 2010) [3D09-232]. His subsequent postcon-viction petition was denied, and this Court affirmed. Monestime v. State, 107 So.3d 420 (Fla. 3d DCA 2013) [3D11-3060].

In 2016, Monestime moved to have returned to him the $738,804.00 seized upon his arrest in 2006. He claims that the money, all cash in a black duffle, was abandoned in his room by an unknown person who never claimed it. Thus, he argues, it is his property. The trial court denied the motion to return property, citing the motion’s untimeliness under section 705.106, Florida Statutes (2016). That statute sets forth the procedure regarding unclaimed evidence:

(1) Title' to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the con-clusfon of the proceeding.

§ 705.105 Florida Statutes (2016), Thus,.in order to seek the return of seized property, a defendant must file a motion within that sixty-day period. A criminal proceeding is concluded when the mandate issues from the appellate court on a direct appeal of a defendant’s judgment and sentence. See Davis v. State, 198 So.3d 1070, 1072 (Fla. 5th DCA 2016); Breland v. State, 58 So.3d 326, 327 (Fla. 1st DCA 2011); Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987). As more than sixty days have elapsed since the mandate issued in Monestime’s direct criminal appeal in 2010, the trial court’s order citing to the untimeliness of the motion pursuant to section 705.105 is correct. We therefore affirm.

Affirmed.


text:
    Alba RODRIGUEZ, Appellant, v. WELLS FARGO BANK, N.A., etc., Appellee.
    No. 3D16-2795
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Rehearing Denied June 2, 2017
    Law Offices of Michael S. Hacker, and Michael S. Hacker and Ross M. Johnston, for appellant.
    Weitz & Schwartz, P.A., and Sarah T. Weitz (Fort Lauderdale), for appellee.

      Before LOGUE, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA (2005) (“Active participation in the proceedings in the trial court, especially without objecting to jurisdiction due to the lack of service of process, constitutes a submission to the court’s jurisdiction and a waiver of any objection.”); Leipuner v. Fed. Deposit Ins. Corp., 860 So.2d 1027, 1028 (Fla. 5th DCA 2003) (“Participation in the proceedings amounts to a general appearance, and thereby constitutes a waiver of any alleged defects in service or in jurisdiction.”).


author: ROTHENBERG, J.

text:
    Ibes GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-372
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

      Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Ibes Gomez, entered into an open plea wherein he pled guilty to the charges brought by the State in five separate cases. In this appeal, the defendant contends that his convictions for the some of the offenses violate the prohibition against double jeopardy, requiring correction of the judgments in three of the cases: 14-22837, 15-1546, and 15-9420, and re-sentencing as to all five cases. Specifically, he contends that his convictions for organized fraud and grand theft violate double jeopardy and that his convictions for uttering a worthless check and grand theft also violate double jeopardy. We conclude that the defendant’s double jeopardy argument as to organized fraud and grand theft in case numbers 14-22837 and 15-1546 is well-taken. We therefore reverse and remand with specific instructions to vacate the grand theft convictions in case numbers 14-22837 and 15-1546 and to resen-tence the defendant based on a corrected scoresheet. We affirm in all other respects.

I. FACTS

The defendant was charged by information as follows:

Lower Case No. 14-13477 — five counts of obtaining merchandise by means of a worthless check ($150 or more), third degree felonies, in violation of section 832.05(4).
Lower Case No. 14-13480 — five counts of obtaining tires by means of a worthless check ($150 or more), third degree felonies, in violation of section 832.05(4).
Lower Case No. 14-22837 — Count 1: first degree grand theft, a first degree felony, in violation of sections 812.014(1) and (2)(a); Count 2: organized fraud ($50,000 or more), a first degree felony, in violation of section 817.034(4)(a)1,; and Counts 3-6: uttering a worthless check ($150 or more), third degree felonies, in violation of section 832.05(2).
Lower Case No. 15-1546 — Count 1: third degree grand theft, a third degree felony, in violation of section 812.014(2)(c); Count 2: organized fraud ($20,000 or less), a third degree felony, in violation of section 817.034(4)(a)3,; and Count 3: uttering a worthless check ($150 or more), a third degree felony, in violation of section 832.05(2).
Lower Case No. 15-9420 — Count 1: third degree grand theft, a third degree felony, in violation of section 812.014(2)(e); and Counts 2-5: uttering a worthless check/issue ($150 or more), third degree felonies, in violation of section 832.05(2).

The defendant moved for a downward departure based on a gambling addiction not related to substance abuse requiring specialized treatment. Thereafter, the defendant entered an open plea to the court as to all counts in the five cases. During the plea colloquy, the defendant waived “his right to appeal any of the trial court’s rulings,” but did not expressly waive his right to appeal any double jeopardy violations. The trial court accepted the defendant’s guilty plea, adjudicated the defendant guilty, and deferred sentencing.

At the sentencing hearing, the trial court denied the defendant’s motion for a downward departure and sentenced the defendant to five years in prison for each count in each case, with each count in each case to run concurrently. The trial court, however, ordered that the five year sentences imposed in case number 14-13480 run consecutive to the five year sentences imposed in case number 14-13477, and the five year sentences imposed in case number 14-22837 to run consecutive to the sentences imposed in case number 14-13480. Further, the sentences in case numbers 15-1546 and 15-9420 were ordered to run concurrently to the sentences imposed in case number 14-13477. Thus, the defendant was sentenced to a total of fifteen years in prison.

II. ANALYSIS

“A double jeopardy violation can be raised for the first time on appeal because it constitutes fundamental error.” Holubek v. State, 173 So.3d 1114, 1116 (Fla. 5th DCA 2015). “The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence.” Novaton v. State, 634 So.2d 607, 609 (Fla. 1994) (citing United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). An exception to this general rule is “when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.” Novaton, 634 So.2d at 609.

In the instant case, the parties agree that the defendant has met the first prong because his plea was an “open plea” to the court, not a bargained-for plea, see God-frey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006) (holding that an “open plea” does not amount to a bargained-for plea), and the third prong because the defendant did not specifically waive his right to appeal a double jeopardy violation despite waiving his right to appeal any of the trial court’s rulings. See Holubek, 173 So.3d at 1116 (holding that “Holubek did not specifically waive his right to appeal a double jeopardy violation by generally waiving his right to appeal at the plea colloquy”). Thus, the primary issue before this Court on appeal is whether a double jeopardy violation is apparent from the record in case numbers 14-22837 and 15-1546.

“Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Block-burger test, as codified in section 775.021, Florida Statutes, to determine whether separate offenses exist.” McKinney v. State, 66 So.3d 852, 854 (Fla. 2011) (footnote in original; citation omitted). Section 775.021(4), Florida Statutes (2016), provides as follows:

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

In case numbers 14-22837 and 16-1546, the defendant was adjudicated guilty of both grand theft under section 812.014 and organized fraud under section 817.034(4)(a). The State acknowledges that dual convictions for both grand theft and organized fraud have been held to violate double jeopardy. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) (holding that “double jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct”); Muhammad v. State, 99 So.3d 964, 964 (Fla. 3d DCA 2011) (relying on Pizzo and holding that double jeopardy principles prohibit convictions for both grand theft and organized fraud).

The State, however, argues that the defendant’s dual convictions may be permissible pursuant to an exception set forth in section 817.034(4)(c) of the Florida Communications Fraud Act, which permits separate judgments and sentences for the offenses of organized fraud under subsection (4)(a) and communications fraud under subsection (4)(b) “when all such offenses involve the same scheme to defraud.” The State recognizes that the defendant was not charged with nor adjudicated guilty of communications fraud under section 817.034(4)(b), but argues that “[i]f the legislature intended the communications fraud to survive double jeopardy based upon the combination of organized fraud plus a qualifying communications fraud, the same intent should be applicable when grand theft (if committed by communication) is a necessarily lesser included offense of communications fraud; such is the case when the grand theft is committed by mail.”

We are unpersuaded by the State’s argument. Section 817.034(4)(c) does not expressly authorize separate judgments and sentences for organized fraud and grand theft, and we are not free to read something into a clear and unambiguous statute that is not there. English v. State, 191 So.3d 448, 450 (Fla. 2016) (holding that when statutory language is clear and unambiguous, a court “need not look behind the statute’s plain language or employ principles of statutory construction to determine legislative intent”); State v. La-cayo, 8 So.3d 385, 386-387 (Fla. 3d DCA 2009) (holding that if a statute is clear and unambiguous, a court will not look beyond the statute’s plain language or resort to statutory construction to determine legislative intent).

Accordingly, we conclude that the defendant’s convictions for grand theft and organized fraud violate the prohibition against double jeopardy, and therefore, as instructed by the Florida Supreme Court in Pizzo, we are required to order that the defendant’s grand theft convictions be vacated as the “lesser offenses” of organized fraud in case numbers 14-22837 and 15-1546. As the Florida Supreme Court explained in Pizzo:

In distinguishing lesser offenses from greater offenses when faced with a double jeopardy violation, this Court has stated that based upon section 775.021(4), lesser offenses are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial. Further, section 775.021(4)(b)(3) itself states that lesser offenses are “the statutory elements . of which are subsumed by the greater offense.” Therefore, the statutory elements of the lesser 'offense must be subsumed by the statutory elements of the greater offense in order for it to be considered the lesser offense in the double jeopardy context.
... [A]ll of ‘ the elements of grand theft are included in the offense of organized fraud. However, organized fraud contains an element that is not an element of grand theft, namely “a systematic, ongoing course of conduct with the intent to defraud or take property,” Because organized fraud includes all of the elements of grand theft as well as an additional element, grand theft is a lesser offense of organized fraud. Therefore, the Second District should have vacated Pizzo’s grand theft convictions as lesser offenses of Pizzo’s organized fraud conviction.

Pizzo, 945 So.2d at 1206-07 (internal quotation marks and citations omitted); see also Muhammad, 99 So.3d at 964; Raines v. State, 19 So.3d 331, 333 (Fla. 2d DCA 2009) (holding that because Raines entered into an open.plea to the court, not a negotiated plea, “the State cannot choose to ‘withdraw' from a plea agreement on remand because no such agreement exists, and accordingly the proceedings on remand are not within the State’s discretion”).

Almost a decade after the Florida Supreme Court decided Pizzo, it issued its opinion in State v. Tuttle, 177 So.3d 1246 (Fla. 2015). In Tuttle, the Florida Supreme Court addressed a situation where the “lesser offense” has a greater penalty than the “greater offense,” and held as follows: “[W]e hold that when a defendant is found guilty for two offenses and adjudication of the defendant as guilty for both offenses would violate double jeopardy and section 775.021(4)(b)3., the lesser offense as defined by Pizzo should be vacated.” We are, therefore, required to order that the grand theft convictions in case numbers 14-22837 and 15-1546 be vacated based on Pizzo and the majority opinion in Tuttle, rather .than allowing the State to elect whether to vacate the grand theft or organized fraud convictions in these two cases.

III. CONCLUSION

In conclusion, the defendant’s convictions for grand theft and organized fraud in case numbers 14-22837 and 15-1546 violate the prohibition against double jeopardy, and thus his convictions for grand theft in these two cases must be vacated upon remand. Because the deletion of these convictions will affect the scoring of the defendant and may affect the sentencing decision of the trial court, we also remand for the preparation of a corrected scoresheet and the resentencing of the defendant at which the defendant shall be present. See Fernandez v. State, 199 So.3d 500, 502 (Fla. 2d DCA 2016) (“Regardless of whether the sentence is being imposed following a trial, entry of a plea, or pursuant to a resentencing proceeding, an accurate scoresheet must be prepared to inform and guide the court in making its sentencing decision.”). We affirm in all other respects.

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

      . The counts within each case number were based upon the same conduct.

      . The defendant does not challenge his convictions in case numbers 14-13477 and 14-13480, and therefore those convictions are affirmed.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . The Florida Communications Fraud Act sets forth two separate offenses — "organized fraud” under section 817.034(4)(a) and "communications fraud" under section 817.034(4)(b). Section 817.034(4)(a) provides: "Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud[.]” Organized fraud can be either a first, second, or third degree felony depending on the value of the property. § 817.034(4)(a)1.-3. Section 817.034(4)(b) provides: "Any person who engages in a scheme to defraud and, in furtherance of that scheme communicates with any person with intent to obtain property from that person is guilty, for each such act of communication, of communications fraud[.]” Unlike organized fraud, communications fraud does not require that the person actually obtain property. Rather, for the offense of “communications fraud,” it is sufficient that the person merely intends to obtain property while engaging in the scheme to defraud. Further, depending on the value of the property, the communications fraud can be either a third degree felony ($300 or more) or a first degree misdemeanor (less than $300). Further, the term “communicate,” as utilized in section 817.034(4)(b), is defined as follows: “[T]o transmit or transfer or to cause another to transmit or transfer signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio, electromagnetic, photoelectronic, or photooptical system.”

      . In the instant case, the .defendant’s score-sheet reflects that in case number 14-;22837, the first degree grand theft was scored as the primary offense as a Level 7 offense. As this offense is being vacated, the defendant’s offense for organized fraud ($50,000 or more) in case number 14-22837 will become the primary offense. The scoresheet before this Court also reflects that organized fraud ($50,-000 or more) is a Level 6 offense. However, it is actually a Level 7 offense.

      . The defendant argues that his convictions for uttering a worthless check and grand theft in case numbers 14-22837, 15-1546, and 15-9420 violate the prohibition against double jeopardy. As we have already concluded that the grand theft convictions in case numbers 14-22837 and 15-1545 must be vacated, the defendant’s double jeopardy argument as to grand theft and uttering a worthless check relates at this point only to case number 15-9420. Without further discussion, we find meritless the defendant's contention that his convictions for uttering a worthless check and grand theft violate double jeopardy. Thus, in case number 15-9420, we affirm the defendant’s convictions for both grand theft and uttering a worthless check.


text:
    Geovanny PADRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-830
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Rehearing Denied June 1, 2017

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Geovanny Padrón (“the defendant”) appeals from a final judgment of conviction and sentence for first-degree felony murder, attempted second-degree murder, armed burglary, and aggravated battery with a deadly weapon. The defendant specifically contends that the trial court erred by denying his motion for judgment of acquittal, claiming that the State failed to produce sufficient evidence to convict him as a principal for felony murder, attempted murder, and burglary. Because we find that the evidence adduced at trial, when considered in the light most favorable to the State, supports the jury’s verdict finding the defendant guilty, we affirm.

BACKGROUND

Felix Soto (“Soto”) and Rafael Aguilera (“Aguilera”) went to Giancarlo Castillo’s (“Castillo”) residence at 11:00 p.m. to confront him because they believed that Castillo was responsible for burglarizing Soto’s home. According to witnesses who were at Castillo’s residence, Soto and Aguilera knocked on Castillo’s front door and asked Castillo to go outside to speak with them. When Castillo told them to leave and threatened to call the police, Soto and Aguilera left. A little while later, there was a second knock at Castillo’s door. Castillo opened the door, and when Castillo tried to slam the door closed, the door was kicked in by the defendant. Soto, Aguilera, and the defendant entered and immediately attacked Castillo, Mario Fernandez (“Fernandez”), and Eric Edmund-son (“Edmundson”), the male occupants who were present at Castillo’s residence. Before they fled from Castillo’s residence, Soto bludgeoned Fernandez with a machete, Aguilera beat Castillo to death with a baseball bat, and the defendant beat Edmundson unconscious.

The defendant’s former girlfriend testified that when Soto and Aguilera returned from their first visit to Castillo’s residence, they were upset and they convinced the defendant to go back to Castillo’s residence with them. The defendant told his former girlfriend that he and his companions were going “to go see three people” and “they were going to fight with these people because they believed that they were the ones that Had broken into the house,” The former girlfriend told the police during their investigation- that the defendant went with Soto and Aguilera “because there were three of them, and it had to be three against three.” The former girlfriend further testified that after the defendant returned from Castillo’s 'residence, the defendant told her that they entered Castillo’s residence, they fought the occupants, and he knocked his opponent down,

Soto, Aguilera, and the defendant were all- charged' as principals with the first-degree felony murder of Castillo, the attempted premeditated first-degree murder of Fernandez, the aggravated battery with a deadly weapon on Edmundson, and armed burglary. The defendant was. convicted as charged on all- counts except for attempted first-degree murder; where he was instead convicted of the lesser included offense of attempted second-degree murder. He was sentenced to life for the felony murder and burglary counts, to thirty years in prison for the attempted murder count, and to fifteen years in prison for the aggravated battery count, with all sentences running concurrently, The defendant timely appealed.

ANALYSIS

“Appellate courts review the denial of a motion for judgment of acquittal under the de novo standard, and must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State." McDuffie v. State. 970 So.2d 312, 332 (Fla. 2007); Giralt v. State. 935 So.2d 599, 601 (Fla. 3d DCA 2006) (stating that in the context of reviewing a trial court’s ruling on a motion for judgment of acquittal, “the conviction will not be reversed if it is supported by competent substantial evidence”). -

The defendant argues that he is only guilty, at best, of trespass and an aggravated battery for striking Edmundson, but that he is not guilty as a principal of the first-degree felony-murder of Castillo, the attempted second-degree murder of. Fernandez,. or armed burglary. The defendant claims that there is no evidence that he intended for those crimes to be committed and that Soto’s attack on Fernandez and Aguilera’s attack oh Castillo were independent acts, for which he cannot be punished. Therefore, this appeal bests on'the application of the law as to principals and whether, when considered in the light most favorable to the State, there was sufficient evidence to support the jury’s finding of the defendant’s guilt as a principal.;

Section 777.011, Florida Statutes (2009), sets forth who may be charged as a principal under Florida law:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense

Additionally, “[fjelons are generally held responsible for the acts of their co-felons.” Barron v. State, 990 So.2d 1098, 1104 (Fla. 3d DCA 2007). “One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime.” Lovette v. State, 636 So.2d 1304, 1306 (Fla. 1994) (quoting Jacobs v. State, 396 So.2d 713, 716 (Fla. 1981)).

According to the independent act doctrine, when a defendant who previously participated in a common scheme does not participate in criminal acts perpetrated by one of his co-felons, and those criminal acts “fall outside of, and are foreign to, the common design of the original collaboration,” the defendant will be exonerated from any punishment for the independent acts of his co-felon. Ray v. State, 755 So.2d 604, 609 (Fla. 2000) (internal quotation marks and citations omitted). “Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.” Pearce v. State, 880 So.2d 561, 574 (Fla. 2004) (emphasis in Pearce) (quoting Ray, 755 So.2d at 609).

Considering the facts in the light most favorable to the State, Soto and Aguilera sought out the defendant’s help so that upon their return to Castillo’s residence, they could fight with the three male occupants inside. When Soto, Aguilera, and the defendant arrived, Castillo slammed the door on them, the defendant kicked in the door, and all three co-felons entered and immediately attacked the male occupants. Soto incapacitated Fernandez with a machete, Aguilera beat Castillo to death with a baseball bat, and the defendant beat Edmundson unconscious. Therefore, there was competent substantial evidence that the defendant intentionally participated in a common scheme to break into Castillo’s residence and physically harm the three male occupants. This evidence supports the jury’s finding as to the defendant’s guilt for armed burglary.

Moreover, because there was evidence from which the jury could have concluded that when the defendant, Soto, and Aguil-era went to and forcibly entered Castillo’s residence, they intended to attack the three male occupants, Soto’s attack on Fernandez and Aguilera’s attack on Castillo were clearly within the scope and design of the group’s criminal scheme. Bradley v. State, 33 So.3d 664, 675 (Fla. 2010) (“[E]ven if the intended underlying criminal enterprise was merely to ‘beat some sense’ into Mr. Jones, the beating would clearly be considered a foreseeable force which set in motion the killing.”). While the defendant might not have intended to kill anyone, there is sufficient evidence of his intent to fight with the occupants inside Castillo’s residence, and the death of one of the victims who was beaten was not outside of or foreign to the original common scheme. Accordingly, the independent act doctrine does not apply, and the defendant’s conviction for the criminal acts of his co-felons in furtherance of their common scheme is supported by competent substantial evidence.

CONCLUSION

In summary, the trial court did not err by denying the defendant’s motion for judgment of acquittal because: (1) the State introduced competent substantial evidence of the defendant’s willful participation in the common scheme to unlawfully enter Castillo’s residence and attack the male occupants therein; (2) the defendant’s co-felons’ criminal acts were neither outside of nor foreign to this common scheme; and thus, (3) the defendant’s conviction as a principal for his co-felon’s criminal acts was supported by competent substantial evidence at trial. Accordingly, we affirm.

Affirmed.

      . We find the defendant’s remaining arguments to be without merit, and thus, we decline to specifically address them here.


text:
    Jason TUREM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-552
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Jason Turem, Live Oak, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jason Turem appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Turem raised nine grounds for relief in his motion, although several of these grounds are repetitive. We affirm the postconviction court’s summary denial of ground four and the “second” ground six without further discussion. As to grounds one, two, three, five, and seven, for the reasons explained below, we treat these separate grounds as one single claim and reverse for the lower court to either hold an evi-dentiary hearing or attach additional court records to its order to conclusively refute this claim. We reverse the denial of Tu-rem’s “first” numbered ground six where Turem alleged that his counsel was ineffective for failing to investigate and raise an insanity defense for being facially insufficient, and we remand to allow Turem an opportunity to amend this claim. Finally, because we are reversing the summary denial of more than one individual claim, we also reverse the denial of ground eight, which is a cumulative error claim.

In 2014, Turem entered a nolo contende-re plea to one count of aggravated stalking. The trial court accepted his plea and sentenced Turem to serve ten years in prison, with the sentence being suspended upon Turem’s successful completion of five years of drug offender probation. Turem was subsequently arrested and charged with criminal mischief in two separate cases, which also resulted in a violation of his aforementioned probation. In January 2015, Turem appeared before the trial court, with counsel, and tendered a nolo contendere plea to the criminal mischief charges. Turem also admitted to violating his probation. The court accepted Turem’s pleas and sentenced him to serve ten years in prison for the aggravated stalking conviction and to concurrent five-year prison sentences for the criminal mischief convictions.

In grounds one, two, three, five, and seven of his postconviction motion, Turem essentially asserted, under various theories, that his trial counsel was ineffective because Turem was mentally incompetent at the time of his plea, counsel allowed him to enter his plea while incompetent, and despite Turem informing counsel of his condition and despite making repeated requests, counsel failed to have Turem evaluated for his competency. Turem alleged that he suffered from long-standing mental illnesses, including bipolar disorder, “multiple personality,” and schizo affective personality and that he also attempted suicide while being held in the county jail on these charges. Turem also alleged and listed multiple psychotropic medications that he takes, which he claimed caused him to be “heavily medicated” at the time of his plea. Turem further alleged that he was “hearing voices, seeing hallucinations,” was “in and out of reality,” “disoriented,” “did not know where [he] was or what he was doing,” was suffering from “amnesia,” and that he did not understand the nature of his charges and the consequences of his plea. Turem pointed out that in the sentencing memorandum filed with the trial court, his counsel acknowledged that Tu-rem has received treatment for a number of mental illnesses for most of his adult life and that, in arguing for mitigation, counsel wrote that Turem’s capacity to appreciate the criminal nature of his conduct or to conform that conduct to the requirements of the law was substantially impaired.

“[A] postconviction court is required to conduct an evidentiary hearing [on a rule 3.850 motion for postconviction relief] unless the motion and record conclusively demonstrate that the movant is not entitled to the requested relief, or the motion is legally insufficient.” Nelson v. State, 73 So.3d 77, 84 (Fla. 2011) (citing Jacobs v. State, 880 So.2d 548, 553 (Fla. 2004); Fla. R. Crim. P. 3.850(d)). Additionally, where no evidentiary hearing is held, the defendant’s factual allegations in the motion must be accepted as true to the extent that they are not refuted by the record. Peede v, State, 748 So.2d 253, 257 (Fla. 1999) (citing Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla. 1989)).

A claim that counsel failed to investigate a defendant’s mental health and failed to seek a competency determination is cognizable in a rule 3.850 motion. Watts v. State, 82 So.3d 1215, 1216 (Fla. 2d DCA 2012) (citing Demarco v. State, 31 So.3d 975, 976 (Fla. 2d DCA 2010)). Here, although Turem’s allegations and theories of ineffective assistance of counsel on this claim encompassed several grounds, we conclude that Turem set forth one facially sufficient claim. See Hird v. State, 204 So.3d 483, 485 (Fla. 5th DCA 2016) (citing Jackson v. State, 29 So.3d 1161, 1162 (Fla. 1st DCA 2010) (concluding that a defendant’s claim was facially sufficient where the defendant “allege[d] that he was incompetent and did not understand the consequences of his plea, that he had a history of mental illness, had not taken his schizophrenia medication, was suffering from delusions and hearing voices at the time of his plea and that he informed counsel of his condition”)).

In summarily denying these aggregate claims, the postconviction court attached to its order a copy of the twelve-page transcript of the change of plea hearing. At this hearing, counsel stated to the court that Turem had a well-documented history of mental illness, but that he had been more cooperative since being administered his medications at the jail. The extent of the inquiry into Turem’s competency at the plea hearing was the court asking counsel if Turem was competent and counsel’s response, “I believe so.” No inquiry was made directly of Turem as to his mental condition at the time of the plea, whether he was regularly taking his psychotropic medications and, if so, whether those medications interfered or assisted with his ability to knowingly, intelligently, and voluntarily enter his plea.

Turem, as the movant, has the burden to establish that he was mentally incompetent at the time of his plea. Thompson v. State, 88 So.3d 312, 320 (Fla. 4th DCA 2012). Moreover, “[n]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.” Id. at 319 (quoting Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir. 1992)). “Further, a suicide attempt is not alone sufficient to raise a question about competency to stand trial.” Id. at 321 (citing Nelson v. State, 43 So.3d 20, 29 (Fla. 2010)). However, in this case, due to Tu-rem’s lengthy and documented history of mental illness, known by both his counsel and the court, we find that the colloquy and the abbreviated discussion on the record does not conclusively refute the factual allegations of Turem’s claim.

In the “first” ground six of his motion, Turem alleged that his counsel was ineffective for failing to adequately investigate an insanity defense. However, because Turem did not allege in his motion that he was insane at the time he committed his criminal offenses, resulting in the violation of his probation,'' this claim is facially insufficient. See Luckey v. State, 979 So.2d 353, 354 (Fla. 5th DCA 2008) (holding that the defendant’s failure to allege in a rule 3.850 motion that he was insane at the time of the offense renders the claim facially insufficient (citing Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002); Baker v. State, 404 So.2d 1151 (Fla. 5th DCA 1981))). Because this pleading defect may be correctable, Turem is entitled to at least one opportünity to correct this deficiency, See id. at 355 (citing Spera v. State, 971 So.2d 754 (Fla. 2007)).

Finally, we reverse the summary denial of ground eight and remand for reconsideration based upon our reversal here of the individual claims. See Legrande v. State, 206 So.3d 146, 147 (Fla. 5th DCA 2016) (“As two of Legrande’s claims require reversal for attachment of the record or evidentiary hearing, we also remand ground six, which alleges cumulative error, for further consideration.”).

In sum, we; (1) treat grounds one, two, three, five, and seven of Turem’s motion as one claim and reverse and remand for an evidentiary hearing or attachment of additional records to conclusively refute this claim; (2) reverse the summary denial of the “first” ground six, a facially insufficient claim, and remand for the entry of an order allowing Turem sixty days to amend this claim, if he can do so in good faith; and (3) reverse the summary denial of Turem’s cumulative error claim and remand for further consideration. We affirm on all other grounds.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., ORFINGER, and LAMBERT, JJ., concur.

      . Turem listed eight numbered grounds for relief in his motion but inadvertently asserted ground six twice, with the "second” ground six being an allegation that his counsel was ineffective for failing to seek a hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . To the extent that Turem separately asserted claims of trial court error or "newly discovered” evidence in grounds one, two, three, five, and seven of his motion, we affirm the summary denial of those aspects of the claims.


text:
    Marlene MONTENEGRO-TOIRAC, Appellant, v. REO ASSET ACQUISITIONS, LLC, Appellee.
    No. 3D16-1664
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.
    Loan Lawyers, LLC, and Chase E. Jenkins (Fort Lauderdale), for appellant.
    Shapiro, Fishman & Gaché, LLP, and Kimberly Hopkins (Tampa), for appellee.
    Before ROTHENBERG, LOGUE, and LUCK, JJ.
   CONFESSION OF ERROR

ROTHENBERG, J.

Based on REO Asset Acquisitions, LLC’s (“REO”) proper and commendable confession of error, we reverse the final summary judgment entered against the defendant, Marlene Montenegro-Toirac (“the defendant”). As REO properly concedes, it failed to establish that no genuine issue of material fact remained concerning its compliance with the condition precedent relating to the notice of default where the notice of default was not attached to its affidavit in response to the defendant’s affirmative defenses. See Toyos v. Helm Bank, USA, 187 So.3d 1287, 1290 (Fla. 4th DCA 2016) (reversing entry of final summary judgment and remanding for further proceedings where notice of default was not attached to an affidavit or otherwise sworn to). Accordingly, we reverse the entry of final summary judgment in favor of REO and remand for further proceedings.

Reversed and remanded.


author: LUCK, J.

text:
    J.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2379
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES, and LUCK, JJ.
   LUCK, J.

J.H. appeals an order placing him on probation following an adjudicatory hearing in which he was found to have trespassed on school property. J.H. contends the trial court erred in denying his judgment for dismissal at the close of the evidence because the State failed to prove he had no legitimate business for being at the school. We affirm.

J.H. was charged for trespassing on the grounds of Ernest R. Graham K-8 Academy, in violation of Florida Statute section 810.097. § 810.097(1), Fla. Stat. (2015) (“Any person who ... [d]oes not have a legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property ... and who enters or remains upon the campus ... commits a trespass upon the grounds of a school facility .... ”). To prove this charge, the State had to present sufficient evidence to establish two elements: (1) J.H. entered or remained on the campus of the school; and (2) J.H. did not have any legitimate business on the campus or any other authorization, license, or Invitation to enter or remain upon school property. Fla. Std. Jury Instr. (Crim.) 13.5(a). The second element requires proof “that one entering or remaining on a school campus ... lack[s] any purpose for being there which is connected with the operation of the school.” A.C. v. State, 538 So.2d 136, 137 (Fla. 3d DCA 1989).

The granting of a motion for judgment of dismissal is warranted only if “the evidence is insufficient to establish a prima facie case of guilt against the child.” “The standard of review that applies to a-motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” “We review the trial court’s disposition of the motion for dismissal under the de novo standard,” viewing the evidence “in the light most favorable to the State.” “If, upon reviewing the evidence in a light most favorable to the State, a rational fact-finder could find the ■ elements of the crime proven beyond a reasonable doubt, then the evidence is sufficient to sustain the adjudication of delinquency.”

C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008) (citations and alteration omitted), approved, 24 So.3d 1181 (Fla. 2009).

The school’s principal, Maida Alfa-ro,- the sole witness at the adjudicatory hearing, testified that on the second week of the new school year, September 1, 2015, at dismissal time,- at about 3 p.m., she saw J.H. wearing a school uniform in the middle school’s dismissal area. When.she saw J.H., a former .student of the school, in an area where only registered students, parents and school staff were allowed, Ms. Alfaro was confused as to whether J.H. had re-registered. Ms. Alfaro had her assistant pull J.H.’s computer school records, The records showed that, although J.H.’s parents had recently requested and been denied a transfer back into the school,. J.H. was enrolled at Miami Lakes Middle for that school year, and had an unexcused absence for that day from that school.

Ms. Alfaro further testified that the school’s campus is closed and all visitors to the school must follow a set procedure to be admitted on the campus. This procedure required the visitor to show identification to security personnel and go directly to the school’s main office to obtain authorization. Ms. Alfaro stated J.H. did not. seek or obtain such authorization on the .day in question.

The principal, in other words, confirmed that J.H. was not a student at the school (even though he was wearing the school’s uniform); J.H. was in a non-public area of the school; J.H. was registered at another school but did not attend that day; and J.H, did not check in as a visitor or seek authorization to be there. We conclude that this evidence was sufficient for the trier of fact to find J.H. did not 'have legitimate business on the campus.

J.H. contends that the principal should have asked J.H. why he was at the school since he may have had a legitimate reason for being on campus. Section 810,097(1) does not require that school personnel ask the trespasser his reasons for being on campus to determine whether he had legitimate business, and we decline the invitation to add such a requirement to the statute. The Florida courts, moreover, have found sufficient evidence to support a violation, of section 810.097(1) based on the personal observation of school officials, without having tp ask what legitimate reason or authorization the juvenile may have had for being on campus. See M.M. v. State, 187 So.3d 300, 302 (Fla. 5th DCA 2016) (“Despite instructions from both the dean and the school resource officer that he must remain in the waiting area, M.M. walked outside into an adjacent open-air courtyard (near the back of the school campus), where he was arrested for trespass.”). Finally, adding such a requirement would not make sense.

Suppose, for example, a school security officer reviews video footage from the night before and sees Alice on school property, at 2:00 a.m., spray-painting “School’s out for summer. School’s out forever” on the school’s front door. Would a properly authenticated copy of the video not be sufficient evidence for a trier of fact to find that Alice was trespassing on school property without authorization or legitimate business?. Must the school security officer find- Alice and inquire whether she had legitimate reason to be at the school when it was closed, at 2:00 a.m., spray-painting the door, befpre Alice can violate the statute? ;

Of course not. The surrounding circumstances and observations of the school security officer in that example clearly indicate Alice did not have authorization or legitimate business on campus at that hour doing what she did. So, too, it is here. J.H. was on campus, in the school’s uniform, in an area of the school reserved for students, but had been denied enrollment at the school, and was enrolled elsewhere, where he had an unexcused absence that day. J.H. had not checked in as a visitor. The evidence showed he was not there to see a former teacher or inquire about enrolling in an after-school program, as J.H. speculated in his brief, because he would not have been in the Graham Academy uniform, or in an area of the-school reserved for students, or he would have followed the procedures for visiting. The surrounding circumstances and personal observations of the principal support the finding that J.H. had no'legitimate reason to be on campus.

For these reasons, we affirm the adjudication of delinquency and the order of probation.

Affirmed.

      . See also A.P. v. State, 491 So.2d 1296 (Fla. 3d DCA 1986) (adopting State v. E.N., 455 So.2d 636, 637 (Fla. 5th DCA 1984) (holding, as to the predecessor school trespass statute, that “the legislature did not intend that any student of any public school any where could enter and remain on the premises of a school in which he or she was not enrolled and otherwise had no legitimate business or authorization. A person who is not a student, officer or employee of a public school; who does not have legitimate business on the campus; or who is not a parent, etc. of a student enrolled at such school, commits a trespass when entering or remaining on the campus or other facility of such school.”), decision quashed on other grounds, 484 So.2d 1210 (Fla. 1986)).


text:
    Douglas KRIEGER, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 3D16-2312
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017

      Law Offices of Slesnick and Casey, LLP and James C. Casey, for appellant.
    Brandy E. Elliott (Tallahassee), for ap-pellee.
    Before LOGUE, SCALES, and LUCK, JJ.
   LUCK, J.

Douglas Krieger, a former law enforcement officer with the state fish and wildlife commission, was fired for insubordination. Krieger appeals the final order of the public employees relations commission terminating him because his pretermination due process rights were violated, his supervisor’s order that formed the basis of the insubordination charge was vague, and termination was not an appropriate remedy under the fish and wildlife commission’s regulations. We disagree, and affirm.

Factual Background and Procedural History

The fish and wildlife commission hired Krieger as a law enforcement officer on September 10, 2012. In November 2014, Lieutenant Michael Haney, Krieger’s direct supervisor, observed Krieger “sitting idle” at John Pennekamp Coral Reef State Park. Subsequently, on December 4, 2014 and on January 9, 2015, Lt. Haney instructed Krieger to patrol the southern portion of their patrol zone (from Whale Harbor to Vaca Cut). He further advised the entire squad, and Krieger one-on-one, not to enter Pennekamp unless they received a call to service or an officer requested assistance. Lt. Haney also went on patrol with Krieger and observed firsthand that Krieger was not properly performing his duties (i.e. issuing warnings and citations).

After the January 9 meeting, Lt. Haney began to more closely monitor Krieger’s work activities and discovered that Krieger continued to enter Pennekamp in direct contravention of Lt. Haney’s January 9 order. On January 30, Lt. Haney responded to an electronic mail message from Krieger requesting clarification of the January 9 order. Lt. Haney reiterated that Krieger was “not to be in Pennekamp unless [he] receive[d] a call for service or an officer requested] assistance” and, upon starting his shift, he was “to proceed directly to the boat and patrol the south end of [the] zone.”

On February 10, Lt. Haney emailed Major Roger Beaton, his supervisor, regarding Krieger’s failure to obey orders and work performance. The following day, Lt. Haney filed a complaint against Krieger with the fish and wildlife commission’s inspector general’s office, alleging “that Krieger engaged in numerous instances of loafing and insubordination, [was] inefficient or unable to perform his job duties, violated policies procedures and General Orders and falsified records.”

The inspector general’s office reviewed Krieger’s personnel records, his activity reports, the records from the computer dispatch system, the global positioning device on his service vehicle and boat, the radio logs, and surveillance video from Pennekamp in determining Krieger’s whereabouts and work performance from October 20, 2014 to April 7, 2015. The investigation, completed on June 5, 2015, sustained all allegations against Krieger as “supported by proper and sufficient evidence.”

On September 4, the fish and wildlife commission sent Krieger a predetermination notice explaining its intention to terminate him. The letter listed specific rule violations, allegations of insubordination, and facts upon which his intended termination was based. The letter, specifically, identified dates and times when Krieger acted in direct contravention of the orders: (1) not to go into Pennekamp unless he received a call for service or an officer requested assistance; and (2) “to concentrate [ ] water patrol on the south end of the patrol zone.” On September 24, the fish and wildlife commission held a predetermination hearing with Krieger.

On October 27, the fish and wildlife commission terminated Krieger’s employment for insubordination because he failed to: refrain from patrolling Pennekamp; and patrol the southern portion of his patrol zone from Whale Harbor to Vaca Cut. Krieger appealed his termination to the public employees relations commission. After a four-day evidentiary hearing, the hearing officer recommended dismissal of Krieger’s appeal. The public employees relations commission overruled Krieger’s exceptions to the findings of fact and conclusions of law of the hearing officer, and adopted his recommendation. This appeal followed.

Standard of Review

The public employees relations commission’s “order must be affirmed if it and the underlying hearing officer’s judgment are supported by competent substantial evidence.” Declet v. Dep’t of Children & Families, 776 So.2d 1000, 1001 (Fla. 5th DCA 2001). We do “not substitute our judgment for that of the agency as to the weight of evidence on any disputed finding of fact. We may only set aside such action or remand the case to the agency if we find the agency’s order depends upon any finding of fact which is not supported by competent substantial evidence in the record. It is not ... our province to displace an agency’s choice between two conflicting views even if we would be justified in deciding the issue differently were it before us in the first instance.” Pasco Cty. Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So.2d 108, 116 (Fla. 1st DCA 1977).

Analysis

On appeal, Krieger challenges the public employees relations commission’s decision to dismiss his appeal. Krieger contends that it erred: (1) in determining that his due process rights were not violated even though the fish and wildlife commission terminated him for reasons not provided in the pre-determination letter; (2) in concluding that he was insubordinate for not patrolling the area south of Whale Harbor because the order for his supervisor was vague; and (3) in terminating him rather than putting him on a performance improvement plan as called for in the fish and wildlife commission’s regulations.

1. Pre-determination_letter. Kreiger contends, first, that his due process rights were violated because the fish and wildlife commission terminated him for reasons that it did not disclose in its pre-determination letter. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held that due process requires that the public employee, who has a property interest in continued employment, be given an informal pre-determination hearing. Loudermill, 470 U.S. at 545, 105 S.Ct. 1487. The Court explained:

The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is' a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.

Id. at 546, 106 S.Ct. 1487 (citations omitted).

For two reasons, Krieger’s Loudermill due process rights were not violated. First, the charges against Krieger in the físh and wildlife commission’s predetermination and termination letters are, in fact, the same. The termination letter merely provided additional dates on which Krieger violated the orders from his superiors to refrain from entering Pennekamp and to patrol the southern portion of his patrol zone. The fish and wildlife commission does not violate an employee’s due process rights by giving more detail and explanation in the termination letter than it did in the pre-determination letter. Indeed, it makes sense that there would be more detail in the termination letter after having the opportunity to hear from the employee at the pre-determination hearing.

Second, the law does not require that the pre-determination and termination letters contain “the strict, fine precision required of pleadings of court.” Wright-Simpson v. Dep’t of Corrections, 891 So.2d 1122, 1125 (Fla. 4th DCA 2004). Instead, to determine “whether an employee has been reasonably informed of the charges against him by the language contained in a predetermination and final action letter ... the standard is whether the letters are clear enough to apprise an employee of the proposed action and the fact upon which it hinges.” Id. Here, both letters contain extensive detail to reasonably inform Krieger of the charges against him.

Kreiger, at bottom, received what Loud-ermill requires: notice of the charges; an explanation of the evidence against the employee; and an opportunity for the employee to present his side of the story. 470 U.S. at 546, 105 S.Ct. 1487 (“The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his.side of the story.”); Hous. Auth. of City of St. Petersburg v. White, 617 So.2d 717, 720 (Fla. 2d DCA 1993) (“The employee simply is entitled pretermination to notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to respond.”). Over the course of nine months, Krieger was repeatedly apprised, both orally and in writing, of problems with his job performance. On January 9, for example, Krieger was informed in a one-on-one meeting with Lt. Haney that he was underperforming, not to go to Pennek-amp, to document every violation with a written warning, and to patrol the southern portion of the patrol zone. Lt. Haney even had Krieger’s vessel moved to Whale Harbor from Pennekamp. On February 18, both Lt. Haney and Maj. Beaton provided Krieger with a' memorandum • of understanding, listing his job expectations and again directing him to patrol the southern portion of the zone. On April 29, Krieger was interviewed as part of the inspector general’s investigation and, on June 5, 2015, the inspector general’s office released its report with exhibits documenting Krieger’s work activity during the relevant time period. Exhibits from the June 5 report specifically listed the dates at issue. Krieger, again, was informed of these issues in the pre-determination letter and afforded a pre-determination hearing before the fish and wildlife commission made its final termination decision. Anything “more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” Loudermill, 470 U.S. at 546, 105 S.Ct. 1487.

2. Vague order. Krieger, next, contends that the order requiring him to patrol the southern part of his patrol zone was vague, and therefore, he could not be insubordinate for violating it. A review of the various orders to patrol the southern zone demonstrates that they were not vague.

On December 4, 2014, Lt. Haney, Krieger’s first-line supervisor, instructed the squad to patrol the non-state park areas of their zone, particularly the southern portion of the zone. On January 9, 2015, Lt. Haney told Krieger to concentrate his boat patrol on the south end of his patrol zone, from Whale Harbor to Vaca Cut. On January 80, Lt. Haney, again, ordered Krieger, this time by electronic mail, to proceed directly to his boat and patrol the south end of the patrol zone. The February 18, 2015, memo from Maj. Beaton also instructed Krieger to “[p]atrol lower portion of the Zone from Whale Harbor to Vaca Cut as directed.” Krieger conceded during his testimony before the hearing officer that Lt. Haney directed him to get on his boat and patrol south from Whale Harbor to Vaca Cut.

The fish and wildlife commission presented competent, substantial evidence that Krieger was insubordinate in following these orders. Between January 10, 2015 and April 7, 2015, Krieger was on water patrol for forty-five days. On twenty-five of those days, more than half, Krieger did not patrol in his boat the area south of Whale Harbor Station. On four other days, Krieger’s boat patrol in the southern part of his zone was for less than an hour. In total, of the 452 hours that Krieger. worked from January through April of 2015, only fifty-seven hours, or twelve percent, of his time was spent patrolling south of Whale Harbor Station. Moreover, even when Krieger patrolled south of Whale Harbor Station, he never went further south of Long Key State Park, which was the halfway point of the southern portion of his patrol zone. In other words, Krieger, for four months, did not patrol half of the area he was repeatedly directed to patrol. This was inconsistent with, and insubordinate to, the orders Krieger received from his supervisors.

3. Improper remedy. Krieger contends, finally, that the charges against him were performance problems rather than ones of insubordination, and consistent with fish and wildlife commission regulations, he should have been given a performance improvement plan instead of being terminated. The fish and wildlife commission defines insubordination as “the deliberate and inexcusable refusal to comply with a reasonable order or directive, either written or oral, which relates to the employees!”] job.” Krieger’s failure to follow his supervisor’s orders to patrol the southern zone of his patrol area, and not enter Pennekamp, fell squarely within this definition.

The public employees relations commission found — and those findings were supported by competent, substantial evidence — that Krieger was repeatedly ordered to patrol in his boat the southern portion of his patrol zone, and not to enter Pennekamp. The public employees relations commission also found — and those findings were supported by competent, substantial evidence, too — that Krieger did not patrol the southern zone and continued to enter Pennekamp. Krieger violated these written and oral orders related to his job even after he was initially warned, and then warned by electronic mail, and then warned in a one-on-one meeting with his supervisors. There were, in addition, inconsistencies between what Krieger reported to his supervisors, and the data from the GPS device on his boat; the data showed Krieger was doing less than what he reported.

Krieger argues that “[mjisconduct does not include discipline that is issued by a supervisor based solely on the performance of the employee’s duties.” Indeed, that is so. Krieger, however, was not terminated because he did not live up to his supervisor’s standards in performing his official duties, Krieger, instead, was terminated because he failed completely to perform his official duties, even after he was reminded three times. He didn’t perform at all. The record supports the public employees relations commission’s conclusion that Krieger was insubordinate.

Pursuant to the fish and wildlife commission’s regulations, termination is an appropriate remedy for insubordination. The public employees relations commission weighed the mitigating evidence presented by Krieger in favor of a lesser sanction against the evidence of his insubordination, and concluded that termination was the appropriate remedy:

The insubordination of a law enforcement officer, like Krieger, to lawful orders of his supervisors is a serious matter. Krieger’s violation of the reporting requirements of General Order 63 is also serious because the Agency needs to collect that information to document that it is complying with legislative mandates and state and federal enforcement requires. His unwillingness or refusal to issue warnings or citations or to submit reports is serious because it is a requirement of his law enforcement duties. This factor weighs heavily against mitigation.

Conclusion

We conclude, as did the public employees relations commission, that Krieger’s due process rights were not violated, the order to patrol the southern portion of his patrol zone was not vague, and his termination was consistent with fish and wildlife commission regulations and supported by competent, substantial evidence. We, therefore, affirm the public employees relations commission’s final order of termination.

Affirmed.

      . All of this information was introduced into evidence at the administrative hearing, and formed a large part of the hearing officer’s findings of fact and conclusions of law that were adopted by the public employees relations commission.


author: Klingensmith, J.

text:
    WELLS FARGO BANK, N.A., Appellant, v. Mara Elizabeth EISENBERG a/k/a Mara E. Eisenberg, et. al., Appellees.
    No. 4D16-2646
    District Court of Appeal of Florida, Fourth District.
    May 31, 2017

      Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Anthony E. Saurini of The Ticktin Law Group, PLLC, Deerfield Beach, for appel-lee Mara Elizabeth Eisenberg.
   Klingensmith, J.

Appellant Wells Fargo Bank, N.A. (“Bank”) appeals the involuntary dismissal of its foreclosure case against appellee Mara Elizabeth Eisenberg (“Borrower”). The trial court based' the dismissal on Bank’s failure to adequately prove damages. Bank alleges two grounds for reversal: 1) that the trial court erred by preventing Bank from admitting into evidence the portion of the loan payment history initially generated by the first servicer, which Bank incorporated into its own business records; and 2) that the court’s involuntary. dismissal was improper since' Bank prima, facie established the amounts due and owing, even though the portion of the payment history showing the date on which Borrower was alleged to have initially defaulted was not admitted into evidence. We agree on both issues, and reverse and remand for further proceedings.

Bank filed a mortgage foreclosure complaint against Borrower, alleging that “the payment due for December 1, 2008 and all subsequent payments have not been made.” The complaint claimed that the “principal sum of $101,098.78” along with other expenses were due and owing.

Borrower’s loan was initially serviced by First Union Mortgage Corporation, which later merged into Wachovia; subsequently, Wachovia merged into Bank. At trial, Bank called a loan verification analyst to testify that Bank- was the servicer of Borrower’s loan, and that she had become familiar with Bank’s “policies and procedures related to the preparation and maintenance of business records” during her career with Bank. Although she had not worked for Wachovia, she was familiar with its recordkeeping procedures; however, she was not familiar with First Union’s procedures.

When Bank attempted to admit Borrower’s complete payment history into evidence, Borrower’s counsel objected due to the-witnesses insufficient kiiowledge of the policies and procedures of First Union and Wachovia. The court sustained the objection, but allowed further questioning to elucidate the witness’s knowledge of Bank’s boarding process, After the witness did so, Borrower stood by her prior objection, contending that the payment history should be excluded because the witness could not attest to the policies and procedures of the initial servicer. The court agreed and sustained Borrower’s objection for failing to lay a proper foundation in terms of the witness’s knowledge of how First Union created its records while it was the servicer of the loan.

Once Bank’s merger document with Wa-chovia was admitted as evidence, Bank entered into evidence without objection the payment history starting from Wachovia’s servicing of the loan (beginning in March 2010) onward. Bank also entered into evidence without objection a payoff screen-shot from its records showing all the amounts due and owing, including the principal balance that Bank alleged Borrower owed in the foreclosure complaint ($101,098.78), the escrow advance, accrued interest, and per diem interest. The screenshot also specified that this principal amount was originally due on December 1, 2008.

Borrower moved for involuntary dismissal, arguing that Bank failed to prove standing and did not present competent evidence of the amount owed on the note. Borrower argued that the accuracy of the payment history could not be ensured because the first default date alleged in the complaint was for December 2008, but the admitted payment history began in March 2010. Bank countered that that there was sufficient evidence of the amounts due and owing, but alternatively suggested that, to the extent the court believed it was necessary to have the payment history reach the initial default date, it was willing to reduce the amount it was seeking to only those sums reflected in the payment history in evidence (i.e., from March 2010).

The trial court denied involuntary dismissal on the standing issue, but granted it for failure to prove the amounts due and owing. It ruled that Bank “failed to demonstrate by substantial competent evidence the amount due and owing” because of an “an incomplete payment history.” The court further stated that there was “no definitive date that was testified to in terms of when the actual default occurred.” After Bank’s motion for rehearing was denied, this appeal followed.

The Prior Loan History

“The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Ocwen Loan Servicing, LLC v. Gundersen, 204 So.3d 530, 533 (Fla. 4th DCA 2016) (quoting Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009)). “[T]he question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Id. (quoting Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006)).

Bank asserts that it laid the proper foundation for admission of Borrower’s complete payment history by way of the analyst’s testimony about Bank’s boarding procedures and verification process. In sustaining Borrower’s objection, the trial court reasoned that it was interpreting this court’s holding in Bank of New York v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015), to mean “that it’s not just the boarding process and that whole reliability, accuracy, auditing, verification process but we’re still dealing with the part of the evidence rule concerning laying a foundation in terms of how these records are created.” On that point, it appears that the court took an exceedingly narrow view of our holding in Calloway, and should have admitted the precluded portion of the payment history.

In Calloway, the bank attempted to introduce the payment history and transaction dates from the current servicer’s computer system, but since the payment history derived from documents transferred from a prior servicer and the testifying employee of the current servicer lacked familiarity with the prior servicer’s practices and procedures, the trial court excluded those documents. Id. at 1067-69. We reversed, holding that the witness’s .testimony regarding how the current ser-vicer reviewed the payment histories for accuracy before integrating them into its own records established sufficient trustworthiness of the prior servicer’s documents. Id. at 1072; see also Deutsche Bank Tr. Co. Ams. v. Frias, 178 So.3d 505, 508 (Fla. 4th DCA 2015) (reversing trial court’s preclusion of records originating from prior servicers because although current servicer’s testifying employee had not worked for any prior servicers, employee adequately established that the prior servicers’ records met the business records exception and were checked for accuracy by current servicer).

As we clarified in Gundersen:

“Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’” Bank of N.Y. v. Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015). “[T]he authenticating witness need not be ‘the person who actually prepared the business records.’” Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014) (quoting Cooper v. State, 45 So.3d 490, 492 (Fla. 4th DCA 2010)). As such, it is not necessary to present a witness who was employed by the prior servicer or who participated in the boarding process. See Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 213-14 (Fla. 5th DCA 2015); Le v. U.S. Bank, 165 So.3d 776, 778 (Fla. 5th DCA 2015). Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it “had procedures in place to check the accuracy of the information it received from the previous note holder.” Holt v. Calchas, LLC, 155 So.3d 499, 506 (Fla. 4th DCA 2015). The testifying witness “just need[s][to] be well enough acquainted with the activity to provide testimony.” Cayea, 138 So.3d at 1217. “Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records.” Love v. Garcia, 634 So.2d 158, 160 (Fla.1994).

204 So.3d at 533-34 (alterations in original).

Here, the trial court abused its discretion by excluding the payment records Bank sought to introduce into evidence. The analyst testified in considerable detail how Bank utilized a two-step process to board a loan. The first step, after a purchase, acquisition, or merger, was for Bank to take the electronic information from the transferring entity and match it up with other corresponding information received from them. Upon confirmation that the information matched, Bank uploaded the information into its servicing system. Within that system there were “additional checks and balances” to ensure the information would “service correctly,” including accuracy checks of the property address, the name, the origination dates, and the principal balance at the time of the acquisition. This additional “testing” was performed before the loan became active within Bank’s system.

The second step of the process was to send a “welcome letter” to the borrower explaining that Bank was the new servicer, with directions to call Bank if there were any issues with the payments or if the borrower thought any information was incorrect.

The analyst explained that Bank determined the trustworthiness of the records it obtained from prior servicers once the acquisitions departments ensured their accuracy, and that these records were inputted into-Bank’s records once they were verified. She explained that while Bank could not verify a prior servicer’s processing and procedures in their entirety, Bank’s review was based on verifying that the number of payments, loan balance, interest rate, and due dates as originally provided by the prior servicer matched those contained in the actual loans acquired. If the numbers did not match, Bank would have the prior servicer review the ■ information for correctness.

This testimony demonstrated the analyst’s'familiarity with the boarding process and how the records were created, as well as the trustworthiness of the documents and information accepted from the prior servicer. Thus, the testimony demonstrated sufficient knowledge of the accuracy of the records and satisfied the requirements for admitting the complete payment history under the business records exception to hearsay.

Involuntary Dismissal

The standard of review for an order granting a motion for involuntary dismissal is de novo. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). “An involuntary dismissal or directed verdict is properly éntered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party’s claim.” McCabe v. Hanley, 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling, 811 So.2d 822, 825 (Fla. 5th DCA 2002)). We can affirm an involuntary dismissal “only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4th DCA 2016). (quoting Huber, 137 So.3d at 563-64).

In seeking reversal, Bank relies on Deutsche Bank National Trust Co. v. Baker, 199 So.3d 967, 968 (Fla. 4th DCA 2016). There, Deutsche Bank, through the current servicer’s loan payment history, established the principal balance of the loan that was originally taken from the prior servicer’s records. Id. at 969. As the prior servicer’s records were not admitted, the trial court admitted the current servi-cer’s loan payment history into evidence over the defense objection “without prejudice” against defense counsel to argue the issue regarding the starting principal balance. Id. Thereafter, the trial court dismissed the foreclosure action based on Deutsche Bank’s supposed “failure] to present reliable evidence of damages.” Id. This, court reversed, concluding that “Deutsche Bank did present a prima facie case, albeit one based upon erroneously admitted evidence of damages.” Id. As we explained:

Where a foreclosure plaintiff presents .evidence of the amount of damages under the loan, there is sufficient prima facie evidence of damages to preclude an involuntary dismissal, even if the evidence of damages was based on inadmissible hearsay that was erroneously admitted at trial. See Beauchamp v. Bank of New York, 150 So.3d 827, 829 n.2 (Fla. 4th DCA 2014) (reversing and remanding for further proceedings to determine the amount due under the note, rather than reversing for a dismissal, where “the Bank established the amount of indebtedness through witness testimony, even though that testimony concededly was inadmissible hearsay”); Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1203-04 (Fla. 4th DCA 2015) (reversing for a determination of the correct amount owed, rather than reversing for a dismissal, where the Bank’s loan payment history reflected the amount of principal, but the only evidence of the amount of interest came from a witness who merely testified that the amount written on an unadmitted proposed final judgment was correct); but compare Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 281-82 (Fla. 2d DCA 2014) (reversing for dismissal where the plaintiff failed to produce any evidence, admissible or not, supporting the amount of indebtedness).

Id. at 968-69.

Along similar lines, this court reversed a trial court’s involuntary dismissal in Bayview Loan Servicing, LLC v. Del Lupo, 208 So.3d 97, 97-98 (Fla. 4th DCA 2017), where a payment history showing the principal amount due was admitted into evidence, even though' the witness failed to confirm or interpret the payment history. We held that “[w]hen considered in the light most favorable to Bayview, this evidence was sufficient to establish a prima facie case on damages. Having admitted Bayview’s proof of damages, albeit in a form not easily comprehensible, the trial court should not have granted appellees’ motion for involuntary dismissal.” Id.; see also Wachovia Mortg., F.S.B. v. Goodwill, 199 So.3d 346, 348 (Fla. 4th DCA 2016) (remanding for further proceedings because “[t]he payment history and testimony of [the bankj’s witness were sufficient to present a prima facie case on damages and withstand involuntary dismissal”); Lasala v. Nationstar Mortg., LLC, 197 So.3d 1228, 1230 (Fla. 4th DCA 2016) (stating that an admitted. loan payment history provides “some evidence the trial court can use to support a judgment on the principal amount owed”).

Here, the payoff screenshot in evidence showed all the amounts due . and owing, including the principal balance of $101,098.78, the escrow advance, accrued interest, and per diem interest, and that the principal amount was originally due on December 1, 2008. The analyst’s testimony confirmed that the information in the screenshot was created by Bank’s servicing platform based on many different records within the platform, including the payment history. The analyst based her testimony about the principal balance on the screenshot in evidence, which would have also been verified by the payment history records had they been admitted.

When considered in the light most favorable to Bank, the evidence regarding the incomplete payment history was sufficient to establish a prima facie case on damages. Having admitted that evidence, the trial court erred by granting Borrower’s motion for involuntary dismissal. Accordingly, we reversé the entry of the involuntary dismissal and remand this case for further proceedings consistent with this opinion.

Reversed and Remanded with instructions.

Damoorgian and Gerber, JJ,, concur.