author: SUAREZ, J.

text:
    FINCANTIERI-CANTIERI NAVALI ITALIANI S.P.A., Appellant, v. Anthony YUZWA, Appellee.
    No. 3D16-1015
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Fowler White Burnett, P.A. and Allan R. Kelley and Helaine S. Goodner ; Sheppard, Mullin, Richter & Hampton LLP and Martin D. Katz, pro hac vice (Los Angeles, CA), for appellant.
    Loughren, Doyle & Reising, P.A. and Richard B. Doyle, Jr. (Ft. Lauderdale); Banning LLP and William L. Banning, pro hac vice (Rancho Santa Fe, CA), for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

In this case, we are asked to determine whether Florida courts have personal jurisdiction over an Italian shipbuilder based on injuries a Canadian citizen sustained on a cruise ship built in Italy, and owned by a Washington corporation, while the ship was in international waters in the Pacific Ocean. The trial court determined that it had both general and specific personal jurisdiction. We reverse because the foreign shipbuilder's contacts with Florida are not so continuous and systematic as to render it essentially at home in this State nor is there an adequate connection between Florida and the underlying claims.

BACKGROUND

Fincantieri-Cantieri Navali Italiani S.p.A. ("Fincantieri"), Appellant/Defendant below, is an Italian shipbuilding company. Anthony Yuzwa ("Yuzwa"), Appellee/Plaintiff below, is a Canadian citizen who was injured while working as a performer aboard a Fincantieri-built cruise ship-the MS Oosterdam. Fincantieri built the Oosterdam in Italy pursuant to a contract, signed in London and governed by English law, with HAL Antillen N.V. ("HAL"), a Netherlands Antilles corporation and subsidiary of the Miami-based Carnival Corporation ("Carnival"). The Oosterdam is owned by Holland America Line, a Carnival subsidiary headquartered in Seattle, Washington.

On February 14, 2011, Yuzwa, who worked aboard the Oosterdam as a professional dancer, was injured during a rehearsal when a stage lift crushed his foot. This occurred while the ship was off the coast of Mexico in the Pacific Ocean, having embarked from its home port in San Diego, California the day before. Yuzwa sued Fincantieri, and other defendants, in both California and Florida. However, following jurisdictional discovery in California, Yuzwa dismissed Fincantieri from that case, maintaining the instant action in Florida against Fincantieri and one other defendant (Harbour Marine Systems, Inc.).

Yuzwa's operative Complaint asserts claims for negligence, strict products liability, and breach of express and implied warranty. Fincantieri moved to dismiss for lack of personal jurisdiction and forum non conveniens and attached sworn proof contesting Yuzwa's jurisdictional allegations. Yuzwa filed an opposition with supporting declarations, the deposition of a senior Fincantieri executive, and various other exhibits. Following a non-evidentiary hearing, the trial court denied Fincantieri's motion to dismiss. This timely appeal follows.

ANALYSIS

We review the trial court's order denying Fincantieri's motion to dismiss for lack of personal jurisdiction de novo. See, e.g., Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002). Our jurisdictional analysis is governed by Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989), which requires both a statutory and constitutional inquiry to determine whether Florida courts may exercise personal jurisdiction over a nonresident defendant. First, the plaintiff must allege sufficient jurisdictional facts to bring the action within the ambit of Florida's long-arm statute: section 48.193, Florida Statutes (2017). Id. at 502. Second, the nonresident defendant must have sufficient "minimum contacts" to satisfy constitutional due process requirements. Id.; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ("The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant.").

Unlike long-arm statutes in other states, Florida's statutory requirements are not coextensive with federal due process requirements. See Internet Sols. Corp. v. Marshall, 39 So.3d 1201, 1207 (Fla. 2010) (explaining that Florida's long-arm statute "bestows broad jurisdiction" whereas "United States Supreme Court precedent interpreting the Due Process Clause ... imposes a more restrictive requirement."); cf Modern Principles of Personal Jurisdiction, 4A Fed. Prac. & Proc. Civ. § 1069 (4th ed.) ("[B]ecause a majority of states (and Puerto Rico) have enacted jurisdictional statutes that either have expressly incorporated the due process standard or have been interpreted to extend to the limits of due process, this analysis frequently is collapsed by the federal court into a one-step inquiry: does the assertion of personal jurisdiction satisfy the requirements of due process?").

A key component of the Venetian Salami analysis is its allocation of the burden of proof. Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. Venetian Salami, 554 So.2d at 502. "If the allegations in the complaint sufficiently establish long-arm jurisdiction, then the burden shifts to the defendant to contest the jurisdictional allegations in the complaint, or to claim that the federal minimum contacts requirement is not met, by way of affidavit or other similar sworn proof.[ ]" Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787, 789 (Fla. 3d DCA 1998) (citing Venetian Salami, 554 So.2d at 502 ; Field v. Koufas, 701 So.2d 612 (Fla. 2d DCA 1997) ). "If properly contested, the burden then returns to the plaintiff to refute the evidence submitted by the defendant, also by affidavit or similar sworn proof." Id. If the parties' sworn proof is in conflict, "the trial court must conduct a limited evidentiary hearing to resolve the factual dispute." Id.

Both the long-arm statute and federal due process distinguish between two types of personal jurisdiction: general and specific. General jurisdiction is based purely on a defendant's contacts with the forum state, regardless of where the cause of action arises. In order for a state to exercise such extensive jurisdiction, a defendant's contacts must be sufficiently "substantial and not isolated" and "continuous and systematic." See § 48.193(2), Fla. Stat. (2017) ; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ("Even when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State's subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation." (footnote omitted) ). Specific jurisdiction does not require the same level of contacts; instead, jurisdiction is based on the cause of action arising out of a defendant's certain minimum contacts with the state. See § 48.193(1)(a), Fla. Stat. (2017) ; Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868 ("When a controversy is related to or 'arises out of' a defendant's contacts with the forum, the Court has said that a 'relationship among the defendant, the forum, and the litigation' is the essential foundation of in personam jurisdiction."). Because the trial court incorrectly found that Fincantieri was subject to both general and specific jurisdiction, we address each category in turn.

General Jurisdiction

Florida's long-arm statute provides a basis for asserting general personal jurisdiction pursuant to section 48.193(2) :

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

The trial court determined that Fincantieri was subject to general jurisdiction based on the following contacts with Florida: (1) Fincantieri's long-standing "partnership" with Carnival, spanning over 25 years; (2) numerous contracts with Carnival, resulting in the construction of around 60 cruise ships and amounting to 90% of the cruise ships built under Fincantieri's Merchant Ships Business Unit; (3) over 25 billion dollars in revenue for building ships for Carnival; (4) a Florida office and Area Manager to solicit cruise ship business and serve Florida clients; and (5) frequent meetings and communications with Carnival related to the building of cruise ships.

It is undisputed that Fincantieri has a substantial business relationship with Carnival; however, we conclude that some of the trial court's findings are overstated. For instance, the trial court found that there was a "partnership" between Carnival and Fincantieri based on the deposition testimony of a Fincantieri representative who referred to the relationship with Carnival as "more of a partnership[.]" But there is no evidence in the record that Carnival and Fincantieri have ever formed a legal partnership. See 8B Fla. Jur. 2d Business Relationships § 541 ("A partnership is only established when both parties contribute to the capital or labor of the business, have a mutuality of interest in both profits and losses, and agree to share in the assets and liabilities of the business."). And although Fincantieri has a single employee in Florida-the "Area Manager"-the sworn proof below conclusively shows that he simply serves as a liaison, directing any ship owner inquiries to the correct person or office in Italy. Finally, testimony from Fincantieri's Senior Executive Vice President of the Merchant Ships Business Unit establishes that meetings with Carnival are "very, very usually done in Italy" because that is where Fincantieri has all its organization, structure, technical development, and shipyards.

Notwithstanding the trial court's misstatements of the evidentiary record, Fincantieri does appear to be engaged in "substantial and not isolated activity within this state" under the plain meaning of the long-arm statute due to years of shipbuilding for Carnival. However, we find that Fincantieri's contacts with Florida are nevertheless insufficient to satisfy the more restrictive due process requirements for general jurisdiction.

In International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the United States Supreme Court held that in order to subject a foreign corporation to personal jurisdiction, due process requires certain "minimum contacts ... such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " The Court further explained that "there have been some instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." Id. at 318, 66 S.Ct. 154 (emphasis added). This eventually came to be known as general jurisdiction. Over time, the Supreme Court has refined its approach to general jurisdiction and provided more guidance as to the "continuous and substantial" contacts necessary to satisfy due process.

An early "textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum" is the Supreme Court's 1952 decision in Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 928, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (quoting Donahue v. Far Eastern Air Transport Corp., 652 F.2d 1032, 1037 (C.A.D.C.1981) ). In Perkins, the Court ruled that Ohio could exercise general jurisdiction over a Philippine mining corporation because Ohio was the company's temporary principle place of business while the Japanese were occupying the Philippine Islands during World War II. 342 U.S. at 447, 72 S.Ct. 413. Although the company had halted mining operations due to the Japanese occupation, the company's president and principle stockholder maintained an office in Ohio where he carried out "a continuous and systematic supervision of the necessarily limited wartime activities of the company." Id. at 448, 72 S.Ct. 413.

In Helicopteros, a case arising out of a helicopter crash in Peru, the Court held that general jurisdiction over a Colombian corporation was improper because its contacts with Texas-a contract negotiation session, accepting checks drawn on a Texas bank, purchasing 80% of its helicopter fleet along with parts and accessories, and sending personnel to Texas for training-were not sufficiently "continuous and systematic." 466 U.S. at 416, 104 S.Ct. 1868. Although the Columbian corporation made regular purchases in Texas for substantial sums, the Court held that "mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions." Id. at 418, 104 S.Ct. 1868.

More recently, the Supreme Court has decided two cases that raise the bar even higher for general jurisdiction. In Goodyear, the Court held that North Carolina courts lacked general jurisdiction over foreign tire manufacturers in a case arising out of a bus accident in France. 564 U.S. at 919, 131 S.Ct. 2846. Although some of the foreign manufacturers' tires were sold in North Carolina, the Court explained that the "[f]low of a manufacturer's products into the forum ... may bolster an affiliation germane to specific jurisdiction ... [b]ut ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant." Id. at 927, 131 S.Ct. 2846. More importantly, a unanimous Supreme Court held that in order to be subject to general jurisdiction, a foreign corporation's contacts with the forum State must be "so 'continuous and systematic' as to render [it] essentially at home in the forum State." Id. at 919, 131 S.Ct. 2846.

Similarly, in Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), the Court relied on the "at home" requirement in Goodyear to determine that California courts lacked general jurisdiction over Daimler, a German automobile manufacturer, for claims arising out of Argentina's "Dirty War." The Court held that even if the substantial California contacts of Daimler's American subsidiary, Mercedez-Benz USA, were attributable to Daimler, general jurisdiction would not be proper because California was not Daimler's place of incorporation or principle place of business; in other words, Daimler was not "at home" in California. Id. at 760-61.

Based on this understanding of the constitutional due process requirements, we conclude that Fincantieri is not subject to general jurisdiction in Florida because its contacts are not sufficiently "continuous and systematic" as to render it "at home" in this State. In comparing this case to the "textbook" example in Perkins, we observe that although Fincantieri does have an office in Miami, the unrefuted sworn proof below was that the purpose of this office, with its single employee, is to serve as a point of contact for ship owners and direct any inquiries to the correct person or office in Italy. Unlike the office in Perkins, Fincantieri's Miami office is not involved in any of the company's actual operations. Indeed, all of Fincantieri's executive officers and directors reside in Italy. Moreover, the vast majority of Fincantieri's 7,000 plus employees are based in the company's offices and shipyards in Italy.

In both Goodyear and Daimler, the Supreme Court explained that with respect to a corporation, "the paradigm forum for the exercise of general jurisdiction ... [is] the place of incorporation and principal place of business ...." Daimler, 134 S.Ct. at 760 (quoting Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 ). Here, it is undisputed that Fincantieri is an Italian corporation, and its principal place of business is Italy. While it is true that general jurisdiction is not necessarily limited to those two "paradigm forums," we decline to "look beyond the exemplar bases Goodyear identified," such as Perkins, "and approve the exercise of general jurisdiction" based on the magnitude of Fincantieri's business activities in Florida. See Daimler, 134 S.Ct. at 761 (declining to go beyond the paradigm forums and approve the exercise of general jurisdiction wherever a corporation "engages in a substantial, continuous, and systematic course of business").

Yuzwa points us to a single unpublished opinion in support of his argument that general jurisdiction exists in this case. See Barriere v. Cap Juluca, No. 12-23510-CIV, 2014 WL 652831 (S.D. Fla. Feb. 19, 2014). In Barriere, the United States District Court for the Southern District of Florida determined that it had general jurisdiction over Cap Juluca, an Anguillan resort, based on its "substantial and not isolated activity in Florida[,]" which included the maintenance and operation of a Miami sales office; a Miami agent who managed Cap Juluca's assets; and a Florida-based agent that promoted, managed, operated, and provided reservation services for Cap Juluca. Id. at *8.

We are not persuaded that Barriere is applicable here. As an initial matter, we note that Cap Juluca did not include any sworn proof with its motion to dismiss, so the allegations in the complaint remained unrebutted. Id. Further, unlike the office in Barriere, Fincantieri's Miami liaison office is not a sales office, and there is no evidence that Fincantieri's assets are managed by a Florida-based agent. Finally, the reasoning in Barriere was recently called into question in McCullough v. Royal Caribbean Cruises, Ltd., 268 F.Supp.3d 1336, 1349 (S.D. Fla. 2017) ("Thus, this Court disagrees with the ruling in Barriere , as it is inconsistent with Daimler .").

Because Fincantieri's contacts with Florida were not sufficiently "continuous and systematic" as to render it "at home" in this State, we hold that it is not subject to general jurisdiction. We now turn to the second category of personal jurisdiction: specific jurisdiction.

Specific Jurisdiction

Section 48.193(1)(a) lists several specific acts that could subject a nonresident defendant to personal jurisdiction in Florida, provided that the plaintiff's cause of action "arises from" the specified acts.

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts :

(emphasis added). Yuzwa alleges that Fincantieri is subject to specific jurisdiction in Florida based on the following two acts:

1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
2. Committing a tortious act within this state.

§ 48.193(1)(a), Fla. Stat.

As to the first act,-"[o]perating, conducting, engaging in, or carrying on a business ... in this state"-it is undisputed that Fincantieri does business in Florida. But the relevant inquiry here is whether Yuzwa's cause of action arises from Fincantieri's business in Florida. See Moo Young v. Air Canada, 445 So.2d 1102, 1104 (Fla. 4th DCA 1984) ("The fact that a non-resident does business in Florida is not enough to obtain jurisdiction over it. In addition, there must be some connection between the cause of action pleaded and the business operations conducted in Florida."). This is known as the "connexity" requirement. Id. The trial court, based on an expansive interpretation of this requirement, found that there was a sufficient connection between Yuzwa's claims and Fincantieri's business in Florida. We disagree.

The trial court relied on several cases in support of its holding that " 'connexity' is found where a defendant is engaging in business activities related to the types of products or activities that caused a plaintiff harm." While it is true that the injury need not occur in Florida, and the product that caused the injury need not be sold in Florida, we are reluctant to find that the connexity requirement has been satisfied where both the injury and the sale of the product occurred outside of the State, as is the case here. Indeed, in all of the cases the trial court uses for support, there is a clear connection to Florida. See Davis v. Pyrofax Gas Corp., 492 So.2d 1044, 1044 (Fla. 1986) (finding that a nonresident manufacturer or wholesaler could be sued in Florida where a space heater sold in Michigan, but also marketed and sold in Florida, caused injury in Florida); Canron Corp. v. Holt, 444 So.2d 529, 530 (Fla. 1st DCA 1984) (finding jurisdiction over a New York corporation, with its principal place of business in South Carolina, where the corporation sold and shipped equipment to Florida that later caused injury in Georgia); Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So.2d 985, 987 (Fla. 3d DCA 1983) (finding jurisdiction over a foreign bicycle rack manufacturer where the rack was purchased in Illinois, but identical racks were also sold in Florida, and the injury occurred in Florida); Shoei Safety Helmet Corp. v. Conlee, 409 So.2d 39 (Fla. 4th DCA 1981) (finding jurisdiction over a Japanese helmet manufacturer where the helmet was sold indirectly in Florida, and the injury also occurred in Florida).

Here, there is no apparent connection between Yuzwa's claims and Fincantieri's business in Florida. The Oosterdam was not constructed in Florida; it was not purchased in Florida; it is not owned by a Florida entity, it did not embark from a Florida port; and the injury, to a non-Florida resident, occurred thousands of miles away from Florida in the Pacific Ocean. The only connection Yuzwa identifies is that similar cruise ships have been sold in Florida. We hold that this is far too remote to satisfy the connexity requirement under both the long-arm statute and the Due Process Clause. See Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., --- U.S. ----, 137 S.Ct. 1773, 1781, 198 L.Ed.2d 395 (2017) (explaining that "a defendant's relationship with a ... third party, standing alone, is an insufficient basis for jurisdiction"); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1223-24 (11th Cir. 2009) ("A finding that such a tenuous relationship ... somehow satisfied the relatedness requirement would not only contravene the fairness principles that permeate the jurisdictional due process analysis, but would also interpret the requirement so broadly as to render it virtually meaningless.").

Finally, we address the second act upon which specific jurisdiction is based-"[c]ommitting a tortious act within this state." § 48.193(1)(a)(2), Fla. Stat. Here again, it is not apparent how Florida is remotely connected to the underlying claims. Moreover, the plain language of the statute requires that the actual tortious act be committed within the state. Yuzwa alleges that Fincantieri negligently designed the Oosterdam 's stage and lifts in Florida. But this allegation is contradicted by the unrebutted sworn proof below, which establishes that Fincantieri designed the Oosterdam in Italy and purchased a "turnkey" stage from HMS, S.A., a French company. Yuzwa also argues that "Fincantieri, through its agent, HMS, negligently serviced, maintained and/or repaired the stage in Florida at least once during the warranty period." While it is true that Fincantieri inspected the Oosterdam once in Florida in 2004, the unrebutted sworn proof below was that "the inspection and maintenance of the entertainment areas and stage would have been undertaken by HMS, which Fincantieri neither directed nor controlled." Consequently, we do not find an adequate connection between Florida and either of the two specified acts upon which specific jurisdiction was based.

CONCLUSION

Because Fincantieri's contacts with Florida do not render it "at home" here, and there are insufficient connections between this state and the underlying claims, we reverse, holding that the circuit court lacked both general and specific personal jurisdiction over Fincantieri.

Reversed.

      Harbour Marine is not a party to this appeal.

      Because we find jurisdiction is lacking, we do not address forum non conveniens.

      Much of Fincantieri's sworn proof takes the form of declarations. See Def. Control USA, Inc. v. Atlantis Consultants Ltd. Corp., 4 So.3d 694, 699 (Fla. 3d DCA 2009) (holding that declarations can be used in lieu of affidavits to establish jurisdictional facts).

      The trial court's analysis deviated from Venetian Salami. Instead of shifting the burden back to the Plaintiff once Fincantieri had submitted its sworn proof contesting the jurisdictional allegations in the Complaint, the court determined that it "must consider the pleadings and affidavits in the light most favorable to the plaintiff."


source: Caselaw Access Project

license: Public Domain

text:
    Brian CUEVAS, Appellant, v. STATE of Florida, Appellee,
    Case No. 2D16-1122
    District Court of Appeal of Florida, Second District.
    March 9, 2018
    BY ORDER OF THE COURT:
   Upon consideration of appellant's motion for rehearing, for rehearing en banc, for clarification, and for certification filed on January 25, 2017, together with supplemental briefing ordered by this court, it is

ORDERED that appellant's motion is granted in part and denied in part. This court's opinion dated December 9, 2016, is withdrawn, and the attached opinion is substituted therefor. Appellant's request for clarification and for certification is denied as moot. The relief sought in the request for rehearing is identical to the relief sought in the request for rehearing en banc. Because we have granted the request for rehearing and provided the relief sought, the request for rehearing en banc is denied as moot.

Attachment

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

BRIAN CUEVAS, Appellant,

v.

STATE OF FLORIDA, Appellee.

Case No. 2D16-1122

Opinion filed March 9, 2018.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge.

Brian Cuevas, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Brian Cuevas appeals the order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850(b)(2). We reverse and remand for resentencing.

In 2007, Cuevas entered guilty pleas to several nonhomicide offenses he committed when he was a juvenile. The trial court sentenced him to concurrent twenty-six-year terms of imprisonment. In his rule 3.850(b)(2) motion filed in 2015, Cuevas argued that his sentences are unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Henry v. State, 175 So.3d 675 (Fla. 2015). The postconviction court denied Cuevas's motion, finding that his sentences were not "currently unconstitutional" and that the supreme court had not held that the new juvenile sentencing guidelines set forth in chapter 14-220, Laws of Florida, were retroactive.

Since the postconviction court entered its order, the supreme court has clarified the application of Graham and Henry to juvenile sentences. In Kelsey v. State, 206 So.3d 5, 8 (Fla. 2016), the court

conclude[d] that [its] decision in Henry... requires that all juvenile offenders whose sentences meet the standard defined by the Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled to judicial review. We therefore hold that all juveniles who have sentences that violate Graham are entitled to resentencing pursuant to chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401 and 921.1402, Florida Statutes (2014).

Then in Johnson v. State, 215 So.3d 1237, 1243 (Fla. 2017), the supreme court clarified that its "reasoning in Kelsey supports a reading of Henry that a juvenile offender's sentence must provide an opportunity for early release that is meaningful, based on a demonstration of maturity and rehabilitation, and during his or her natural life." The court explained that a juvenile nonhomicide offender's sentence must not provide for release only at the end of the sentence or at a time beyond his or her natural life; the sentence must provide a meaningful opportunity for release based on a showing of maturity and rehabilitation. Id.

We note that the State recently conceded that a juvenile offender sentenced to thirty years' imprisonment for nonhomicide offenses was entitled to resentencing under Johnson and Kelsey. Mosier v. State, 235 So.3d 957 (Fla. 2d DCA 2017) ; accord Burrows v. State, 219 So.3d 910, 911 (Fla. 5th DCA 2017) (noting that the State properly conceded that Burrows was entitled to resentencing and reversing his twenty-five-year sentences for nonhomicide offenses he committed as a juvenile and remanding for resentencing under chapter 14-220). Here, the State concedes that the sentences do not provide Cuevas with a meaningful opportunity for early release based on maturity and rehabilitation. Nevertheless, it argues that Johnson does not apply because Cuevas's sentences were imposed prior to Henry. We cannot agree with this interpretation of Kelsey and Johnson. Accordingly, we reverse the postconviction court's order and remand for Cuevas to be resentenced under chapter 14-220 as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2016).

Reversed and remanded.

NORTHCUTT and BADALAMENTI, JJ., Concur.


author: SCALES, J.

text:
    Lynne Bloch MULLEN, et al., Appellants, v. BAL HARBOUR VILLAGE, et al., Appellees.
    No. 3D17-1144
    District Court of Appeal of Florida, Third District.
    Opinion filed March 21, 2018
    KYMP LLP, and Juan-Carlos "J.C." Planas, for appellants.
    Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes, Matthew H. Mandel and John J. Quick, for appellees.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

Lynne Bloch Mullen, Beth Berkowitz and Good Government for Bal Harbour ("Plaintiffs") appeal the trial court's non-final order denying injunctive relief against Bal Harbour Village and Dwight Danie, the Village Clerk. We affirm because the trial court did not reversibly err in denying the requested injunction.

I. Relevant Facts and Procedural Background

A. Plaintiffs submit petitions to the Village

As part of Plaintiffs' effort to secure passage of two amendments to the Village Charter, pursuant to section 166.031 of the Florida Statutes, Plaintiffs gathered and submitted to the Village Clerk signatures in support of two petitions to amend the Village Charter. One petition sought to amend section 81 of the Village Charter to require a vote of at least sixty percent of Village electors to approve the sale, lease or disposal of real property owned by the Village ("Petition 81"). The second petition sought to add a new section 82 to the Village Charter to require a vote of at least sixty percent of Village electors to approve certain, defined commercial development within the Village ("Petition 82").

B. The Village provides erroneous instructions to the Supervisor

The Village Clerk received Petition 81 and Petition 82, including the elector signatures in support of them, on November 16, 2016, and forwarded them on December 23, 2016, to the Miami-Dade County Supervisor of Elections ("Supervisor") for signature verification. In a subsequent letter to the Supervisor, the Village Clerk provided the Supervisor with the Village Charter's requirements for petition drives, adding a "requirement" for petition drives to amend the Village Charter-not contained in either section 166.031, the Village Charter or the Village Code-that all petitions must be accompanied by affidavits of the petition circulators ("circulator affidavit"). The Village Clerk premised such a "requirement" in his letter to the Supervisor on "long-standing custom and practice."

The Village Clerk's advice regarding the circulator affidavit also appears to be influenced by his surface examination of Petition 81 and Petition 82. After receiving these petitions, which Plaintiffs had submitted as one package under one cover letter, the Village Clerk noticed several irregularities within them: (i) the cover letter identified a different number of signatures from the number on each of the two petitions; (ii) both Petition 81 and Petition 82 had more than one format, in that individual petition pages contained a single line for signature or multiple signature lines; (iii) there was a slight variation in language among the Petition 82 petition pages; and (iv) certain people signed petitions more than once.

C. The Supervisor deems the petitions insufficient and Plaintiffs file suit

Ultimately, the Supervisor deemed the petitions insufficient because the circulator affidavits were missing. The Supervisor did not thereafter proceed to verify the sufficiency of the signatures or further process the petitions for inclusion on an election ballot. After learning that their petitions were deemed insufficient, Plaintiffs, on February 13, 2017, filed a two-count complaint against the Village and the Village Clerk (collectively, "Defendants") alleging entitlement to both declaratory and mandamus relief. Plaintiffs' complaint contained a single "WHEREFORE" clause seeking, inter alia , a declaration that their petitions "met the requirements of the Florida Statutes regarding petitions for Charter Amendments within municipalities" and an order requiring the Village to submit the petitions to the Supervisor for verification without any "interference" by the Village. Importantly, Paragraph 10 of Plaintiffs' complaint alleged that:

As of the general election on November 8, 2016, there were 1,732 registered voters in Bal Harbour Village. Accordingly, the requisite number of petitions that needed to be verified in order to place a referendum in the next election was 174.

D. Defendants move to dismiss Plaintiffs' complaint asserting illegality of Petition 82

Defendants moved to dismiss Plaintiffs' complaint. In their motion to dismiss, however, Defendants did not mention, much less defend, the Village Clerk's "requirement" that a circulator affidavit must accompany petition signatures. Rather, Defendants argued in their dismissal motion that Plaintiffs are not entitled to mandamus relief because they have no clear legal right to the requested remedy; and that Plaintiffs are not entitled to declaratory relief because Plaintiffs' ultimate desire-to amend the Village Charter to require voter approval for development orders-already has been "declared" illegal by the Florida Legislature. Specifically, in their motion to dismiss, Defendants contended, for the first time, that Petition 82 purported to amend the Village charter illegally , and that the Village could not be compelled to forward to the Supervisor signatures for verification in support of an illegal initiative. The trial court denied Defendants' motion to dismiss and ordered that Defendants answer Plaintiffs' complaint.

E. Plaintiffs file Motion for relief

Prior to Defendants answering Plaintiffs' complaint, Plaintiffs, presumably to obtain expeditious relief, filed a Motion for Declaratory Relief, Permanent Injunction and Mandamus With Incorporated Memorandum of Law ("Motion"). In this Motion, Plaintiffs essentially argued that, after receiving a sufficient number of petitions to amend a municipal charter under section 166.031, a municipality has a ministerial duty to forward the collected signatures to the Supervisor for verification, unless a municipal charter or code provision affirmatively requires otherwise. Plaintiffs argued that, because nothing in section 166.031, the Village Charter or Village Code required a circulator affidavit as a condition for amending the Village Charter, Plaintiffs were entitled to a writ of mandamus compelling Defendants to forward the signatures to the Supervisor for verification.

To the extent that the Village's duty to forward the petition signatures to the Supervisor is not purely ministerial, Plaintiffs' Motion alternately sought declaratory and injunctive relief. Specifically, as an alternative to mandamus relief, Plaintiffs sought both (i) a declaration from the trial court that no provision of the Village's code or charter required the circulator affidavit, and (ii) an ensuing injunction requiring the Village to forward the signatures for both petitions to the Supervisor for validation. Plaintiffs' Motion did not mention, much less argue against, the alleged illegality of Petition 82 earlier raised in Defendants' motion to dismiss.

F. Defendants file their answer, affirmative defenses and response to Motion

Four days after the filing of Plaintiffs' Motion, Defendants filed their answer and affirmative defenses to Plaintiffs' complaint. In their answer Defendants admitted the first sentence of the complaint's Paragraph 10 (that as of the November 8, 2016 general election, there were 1,732 registered voters in the Village), while denying the other material allegations of Plaintiffs' complaint. As an affirmative defense, Defendants once again alleged, as an absolute bar to Plaintiffs' requested relief, that Petition 82 was illegal.

Defendants also filed a response to Plaintiffs' Motion that contained much of the same argument contained in Defendants' prior motion to dismiss. Simply put, Defendants argued that Petition 82's illegality prevents Plaintiffs from prevailing on either a mandamus or a declaratory relief claim.

G. Trial court conducts hearing on Plaintiffs' Motion

On May 3, 2017, the trial court conducted a hearing on Plaintiffs' Motion. While Plaintiffs' Motion is not captioned as a summary judgment motion, the parties and the trial court treated the Motion, and the May 3rd hearing, as such. Indeed, at the hearing Plaintiffs presented no witnesses and moved no documents into evidence; rather, Plaintiffs relied upon the Village's admissions and the Village Clerk's interrogatory responses that were in the trial court's record. In his interrogatory answers, the Village Clerk admitted that Plaintiffs had submitted 250 signatures in support of Petition 81, and 241 signatures in support of Petition 82 (noting a discrepancy between his count and the numbers represented in Plaintiffs' cover letter). Defendants admitted in their answer that the total number of registered Village voters was 1,732. Plaintiffs thus argued that, because Plaintiffs had submitted to the Village the requisite number of signatures (representing more than ten percent of Village's registered voters), Plaintiffs were entitled to mandamus and mandatory injunctive relief because the Village had a ministerial duty to forward the signatures to the Supervisor for verification.

Defendants countered that, because Petition 82 was illegal, Defendants could not be compelled to forward to the Supervisor signatures in support of that petition. Plaintiffs argued that any alleged illegality could be addressed by the Village after the Village had forwarded the signatures to the Supervisor. At no point did Plaintiffs seek an order requiring the Village to forward to the Supervisor the signatures supporting only Petition 81, for which no illegality was claimed.

H. Trial court enters order on appeal denying Plaintiffs' Motion

Two days after the May 3rd hearing, the trial court entered the order on appeal, denying Defendants' Motion. The order expressly states that the trial court treated Defendants' Motion as a summary judgment motion, and then denied the Motion on two distinct grounds. First, the trial court found that Plaintiffs were precluded from obtaining the requested relief because the record lacked sufficient evidence "that the Petitions contain the required 10% of the Village's voters (as required by section 166.031 )." Second, the trial court held that Plaintiffs could not prevail because Petition 82 violated section 163.3167(8)(a), which expressly prohibits a municipality from engaging in an initiative or referendum process regarding a development order. The trial court reasoned that, because the Village Charter could not be lawfully amended to effectuate Petition 82, Plaintiffs did not have a clear legal right to an order requiring the Village to forward to the Supervisor the signatures supporting Petition 82. This appeal ensued.

II. Jurisdiction

As mentioned earlier, the parties characterized Plaintiffs' Motion, and conducted the proceedings on the Motion, as if the Motion were a summary judgment motion. Generally, we lack appellate jurisdiction to review an order denying a party's summary judgment motion. Miami-Dade Cty. v. Perez, 988 So.2d 40, 41 (Fla. 3d DCA 2008). Presumably, though, because Plaintiffs' Motion essentially sought the exact same relief as Plaintiffs' complaint, and the order denying the Motion denied such relief, the parties and the trial court, as well as Plaintiffs' notice of appeal, characterized the order on appeal as a "final order." Yet, notwithstanding the trial court's careful and thorough explanation of its rationale, the order simply denies Plaintiffs' Motion. The order does not contain any language purporting otherwise to dispose of, or end all further judicial labor in, Plaintiffs' case. The order therefore is not a final order reviewable under Florida Rule of Appellate Procedure 9.030(b)(1)(A). Ball v. Genesis Outsourcing Sols., LLC, 174 So.3d 498, 499 (Fla. 3d DCA 2015). While it may be unclear exactly what further judicial labor may be required to bring finality to this case, it is clear that the order does deny Plaintiffs' request for injunctive relief. We therefore review the order as an appealable, non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(B).

III. Analysis

The order on appeal provides two distinct bases for denying Plaintiffs' Motion: (1) the record evidence is insufficient to warrant relief to Plaintiffs; and (2) the illegality of Petition 82 is fatal to Plaintiffs' requested relief. Alas, if we were able to affirm on the first basis, this opinion would be brief and succinct because we would not need to reach the more complicated second issue. But because the record evidence before the trial court, along with the Village's admissions and concession, establish that Plaintiffs submitted enough signatures to trigger the Supervisor verification process, we are unable to affirm on this basis; and thus, the bulk of this opinion's analysis discusses the illegality of Petition 82 and issues that radiate from such illegality.

A. Sufficiency of the "summary judgment" evidence

As a threshold matter, for Plaintiffs to be entitled to any relief, it was incumbent upon them to establish with record evidence that they had acquired signatures from the requisite ten percent of the Village's registered voters. The trial court denied Plaintiffs' claims, concluding that "Plaintiffs have not submitted any affidavits or sworn testimony in support of their Motion that the Petitions contain the required 10% of the Village's voters (as required by section 166.031 Florida Statutes )." Our de novo review of the record, however, and the Village's own concession below, belie this conclusion.

In relevant part, Florida Rule of Civil Procedure 1.510(c) requires the trial court to enter summary judgment for the moving party if "the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact ...." Our review of the record confirms that Plaintiffs had submitted to the Village Clerk the requisite number of signatures to invoke section 166.031's municipal charter amendment process. The Village admitted in its pleadings that, as of the November 8, 2016 general election, there were a total of 1,732 registered voters in the Village. In his sworn interrogatory responses, the Village Clerk asserted that Plaintiffs had submitted 250 signatures in support of Petition 81 and 241 signatures in support of Petition 82. Plaintiffs were not required by Florida's summary judgment standards to present extrinsic evidence from a mathematician to establish that a rounded ten percent of 1,732 is 174, and that both 250 and 241 are numbers greater than 174. This evidence was uncontested. Additionally, in its response to Plaintiffs' Motion, the Village conceded below that, if Plaintiffs agreed to separate Petitions 81 and 82 and "treat them individually, [the Village] agree[s] that the Section 81 Petition can be properly forwarded to the [Supervisor] for ... its potential placement on the ballot. If Plaintiffs continue to insist that the Petitions be treated together, then they both fail of a result of the illegality of [Petition] 82 ...." In light of the entire record, we read this as a concession by the Village that the signatures obtained by Plaintiffs were sufficient to warrant the forwarding of same to the Supervisor for verification. Thus, because the record, coupled with the Village's concession, reflects that Plaintiffs met their initial burden to establish they had acquired the requisite number of signatures to invoke section 166.031, we are unable to affirm the trial court's order on this basis. Our analysis necessarily now shifts to the other basis for the trial court's order.

B. The illegality of Petition 82

Village residents were presented with the following language in proposed Petition 82:

Any proposed development plan for an existing commercial property that increases the existing commercial space by more than thirty (30) percent of the current amount of retail space, must be submitted for approval to the electors in Bal Harbour Village and approved by a vote of at least sixty (60) percent of the Village electors voting on such referendum.

Petition 82 is directed to applicants for development orders from the Village. "[A] 'development order' means any order granting, denying, or granting with conditions an application for a development permit." § 163.3164(15), Fla. Stat. (2017). In 2011, the Florida Legislature prohibited local government referenda pertaining to development orders. In a simple, straightforward sentence, the Legislature provided: "An initiative or referendum process in regard to any development order is prohibited." § 163.3167(8)(a), Fla. Stat. (2017).

The legislative prohibition in section 163.3167(8)(a) tackles the issue of whether an individual's property rights may be subject to the will of the voters. In resolving this issue in favor of the property owner, the Legislature established consistency with land use law that confers due process rights on property owners through a quasi-judicial process. See Preserve Palm Beach Political Action Comm. v. Town of Palm Beach, 50 So.3d 1176, 1179 (Fla. 4th DCA 2011). The quasi-judicial process for site-specific development orders has become an unassailable principle of the process of property development in Florida. See Bd. of Cty. Comm'rs of Brevard Cty. v. Snyder, 627 So.2d 469, 474-75 (Fla. 1993).

Petition 82 conflicts with section 163.3167(8)(a). A municipality may not adopt a law, whether a Charter section or an ordinance, that conflicts with a state statute. See City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 929 (Fla. 2013) (stating that "municipalities are precluded from taking any action that conflicts with a state statute"). We therefore agree with the trial court's holding regarding the legality of Petition 82.

Our inquiry, however, does not stop here. Plaintiffs assert that, irrespective of Petition 82's legality, the Village had an obligation to forward the signatures to the Supervisor for verification. From this assertion, two issues arise: (i) did the Village have such a ministerial obligation; and (ii) should the trial court at least have ordered the Village to forward to the Supervisor the signatures supporting Petition 81?

C. Is the Village's duty to forward signatures to the Supervisor merely ministerial?

Plaintiffs' argue that the Village had a ministerial duty to submit their petitions to the Supervisor for signature verification even though the Village's attorneys determined that Petition 82 was invalid. Plaintiffs suggest that, if the Village questioned the validity or legality of Petition 82, the Village, after forwarding the signatures to the Supervisor, then should have challenged any legal infirmity by filing an action for declaratory relief. Although the Village does not respond to this argument directly in its answer brief, inherent in its response is the idea that an unlawful initiative should not be placed before the voters.

Section 166.031 governs municipal charter amendment elections. It does not set forth with specificity the procedures for moving a charter amendment from petition form to ballot. Nor is there a Florida statute governing the obligations of a county supervisor of elections upon receipt of municipal petitions. Similarly, there is no statutorily prescribed mechanism for challenging the legality of a referendum question. Thus, there is a gap in the statutory law on when and how a municipality should address petitions that appear to its officials as presumptively invalid. The parties suggest that this Court, in this case, determine whether a municipality's duty to move the petitions to the supervisor of elections is ministerial, or whether a municipality may, through its officials, restrain the petition process if the officials have a good faith belief that the petition is unlawful. We respectfully decline the parties' invitation to craft, via judicial fiat, the rules dictating when and how a challenge to an allegedly illegal referendum should be mounted.

A review of Florida case law reveals several different methods employed by various parties to challenge the legality of a referendum question. In some cases, like this one, municipal officials fearing an invalid referendum question would reach voters stopped the referendum process, which compelled referendum proponents to seek a writ of mandamus. In some cases, third parties sought to enjoin an alleged illegal referendum. And, in some cases, the municipality (along with an intervening third party) sought declaratory relief to enjoin an alleged illegal referendum. Irrespective of how the issue landed in the courts, in each case, the trial and appellate courts court reached and decided the issue of referendum legality. In none of these cases did a referendum question that had been adjudicated illegal reach the voters.

As this Court stated nearly a half-century ago, our role in the statutorily defined referendum process is limited:

This referendum, involving as it does, not only an election process of the City of Coral Gables, but also an exercise of legislative power by the electors, should not be impeded or prevented by a court except where it is made to appear that the proceeding is inapplicable under the law or is in violation of the law ... No such showing of illegality of the referendum proceeding having been made in the trial court, the ... injunctions restraining the progress of the referendum were improvidently entered.

City of Coral Gables, 256 So.2d at 411 (emphasis added) (citation omitted).

We leave it to the Legislature and, where authorized, municipal governing bodies to codify any preferred mechanism for challenging a purported invalidity of a referendum question. Therefore, we limit our adjudication in this case to whether the trial court erred in determining Petition 82's legality. It did not. We do not reach the issues of when and how such legality determinations should be presented to the courts.

D. Should the trial court, sua sponte, have severed Petitions 81 and 82?

Finally, in both their initial brief and reply brief, Plaintiffs suggest to this Court that, even if Petition 82 were illegal, the trial court should have ordered the Village to forward to the Supervisor Petition 81 and its supporting signatures. Indeed, as alluded to earlier, Defendants, in their written response to Plaintiffs' Motion, seemingly invited Plaintiffs to separate the two petitions, conceding that no inherent illegality existed with regard to Petition 81.

Yet, Plaintiffs do not cite to any portion of the record below where Plaintiffs requested the trial court to enjoin or order the Village to forward only the signatures associated with Petition 81 to the Supervisor for verification. The relevant injunctive relief sought in Plaintiffs' complaint is: "Requiring the CLERK, to submit the petitions to the Elections Department for verification of the signatures of the voters that signed them." (Emphasis added). Similarly, the injunctive relief sought in the Motion is for the issuance of an injunction requiring the Village Clerk to "immediately resubmit the petitions to the Miami-Dade Supervisor of Elections ..." (Emphasis added). Even after Defendants acknowledged that no illegality existed regarding Petition 81, at no point during the May 3, 2017 hearing, or thereafter, did Plaintiffs request the trial court to sever the two petitions and grant Plaintiffs relief regarding Petition 81 alone.

We hardly can conclude then that the trial court somehow abused its discretion by failing, sua sponte , to grant Plaintiffs injunctive relief that they never sought. See Cano v. Cano, 140 So.3d 651, 652 (Fla. 3d DCA 2014) ("To grant unrequested relief is an abuse of discretion.").

IV. Conclusion

We affirm the trial court's non-final order denying Plaintiffs their requested injunctive relief because the trial court correctly held that Petition 82 would constitute an illegal referendum.

Affirmed.

      As elaborated upon more fully in Section II, infra , the order on appeal denied a motion styled as Plaintiffs' Motion for Declaratory Relief, Permanent Injunction and Mandamus With Incorporated Memorandum of Law; our review is of the trial court's denial of the requested injunction.

      Section 166.031(1) provides, in relevant part, as follows:
      [E]lectors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter .... [T]he governing body of the municipality shall place the proposed amendment contained in the ... petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose.
      § 166.031(1), Fla. Stat. (2017).

      The Village Charter requires a simple majority vote.

      The Village asserted that Petition 82 violates section 163.3167(8)(a) of the Florida Statutes. We address this issue in Section III. B ., infra .

      See Florida Rule of Civil Procedure 1.510(c).

      We express no opinion as to what further judicial labor may be required to bring finality to this case.

      Because the parties and the trial court treated Plaintiffs' Motion as if it were a summary judgment motion, we review de novo the trial court's determination that the record evidence was insufficient to warrant relief. See Haber v. Deutsche Bank Nat'l Trust Co., 81 So.3d 565, 566 (Fla. 4th DCA 2012).

      Once an issue is admitted by a party in its pleadings, it is unnecessary for the party to present further proof of that issue at a subsequent hearing. Fernandez v. Fernandez, 648 So.2d 712, 713 (Fla. 1995).

      Our conclusion in this regard is based on the summary judgment evidence and concession developed in this case, and should not be characterized or construed as holding that a municipality has a legal duty to forward signatures for verification so long as the mathematical ten percent threshold is met. Similar to our discussion in section III. C ., infra , we need not, and therefore do not, reach the issue as to what may trigger a municipality's legal duty under section 166.031 to forward obtained signatures to the supervisor of elections for verification.

      Our review of an issue of statutory interpretation is de novo . Wright v. City of Miami Gardens, 200 So.3d 765, 770 (Fla. 2016).

      For a duty to be ministerial, it is imposed expressly by law and involves no discretion in its exercise. See Miami-Dade Cty. Bd. of Cty. Comm'rs v. An Accountable Miami-Dade, 208 So.3d 724, 731 (Fla. 3d DCA 2016).

      See City of Boca Raton v. Siml, 96 So.3d 1140 (Fla 4th DCA 2012) ; Gaines v. City of Orlando, 450 So.2d 1174 (Fla. 5th DCA 1984).

      See City of Miami Beach v. Herman, 346 So.2d 122 (Fla. 3d DCA 1977) ; City of Coral Gables v. Carmichael, 256 So.2d 404 (Fla. 3d DCA 1972).

      See Archstone Palmetto Park, LLC v. Kennedy, 132 So.3d 347 (Fla. 4th DCA 2014) ; Preserve Palm Beach Political Action Comm., 50 So.3d at 1176.

      Defendants stated: "To date Plaintiffs have insisted that the two Petitions be treated and considered together. To the extent that Plaintiffs are now willing to separate the Petitions and treat them individually, Defendants agree that the Section 81 Petition can properly be forwarded to the Miami-Dade Elections Department for its consideration and potential placement on the ballot. If Plaintiffs continue to insist that the Petitions be treated together, then they both fail as a result of the illegality of the Section 82 Petition ...."

      We review an order denying injunctive relief for abuse of discretion. Allied Universal Corp. v. Given, 223 So.3d 1040, 1042 (Fla. 3d DCA 2017).


author: Per Curiam.

text:
    Bruce Allen WILLIAMS Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0149
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Bruce Allen Williams Jr. was charged with four counts of robbery with a firearm and two counts of aggravated assault with a firearm. Judge Frank Bell presided over the trial, and the jury found Williams guilty as charged. This is Williams's appeal.

Before sentencing, Judge Bell announced he would recuse from further proceedings, meaning another judge would impose sentence. In a jointly filed motion, defense counsel and the State asked that Judge Bell provide specific findings to explain the recusal. The joint filing explained that such findings were necessary "to ensure the integrity of the trial record." Judge Bell denied the request for specific findings, but explained that a conflict of interest arose after the trial was completed but before sentencing-and that the unspecified basis of the conflict would not be relevant to any post-trial motions. The case was reassigned to another judge, who handled the sentencing hearing. At that hearing, Williams announced to the new judge that Judge Bell had a conflict during trial. The new judge sentenced Williams to life in prison.

On appeal, Williams raises a single issue. He argues that Judge Bell committed reversible error by failing to articulate specific reasons for his recusal. Williams argues that without knowing the details of the post-trial recusal, he cannot know whether Judge Bell's conflict "infect[ed] the trial itself." But Williams has cited no authority that would require us to reverse.

Florida Rule of Judicial Administration 2.330, which addresses the disqualification of trial judges, provides that "[n]othing in this rule limits the judge's ability to enter an order of disqualification on the judge's own initiative." And although there may be reasons a judge would explain his or her recusal, nothing in the rule compels it. The rule does, though, allow parties to ask successor judges to reconsider rulings the disqualified judge made. Fla. R. Jud. Admin. 2.330(h) ("Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration ...."); see also Buckner v. Cowling , 135 So.3d 383 (Fla. 5th DCA 2014) ("Although an order entered by a judge who is later disqualified is subject to reconsideration by a successor judge, a party is not entitled to have the order vacated as a matter of right."). Here, Williams never filed a motion for reconsideration challenging any of Judge Bell's rulings. Nor did Williams ever identify the pre-recusal conflict he asserts Judge Bell might have had.

AFFIRMED .

Wolf, Osterhaus, and Winsor, JJ., concur.


author: PER CURIAM.

text:
    Ronald PRESSLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5506
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018
    Ronald Pressley, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Ronald Pressley appeals a final order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court overlooked Pressley's assertion of a claim related to the sentence imposed following the revocation of his community control in 2016, we reverse and remand for further proceedings.

In 1993, a jury convicted Pressley of second-degree murder (count one), and he subsequently pleaded guilty to possessing a firearm as a convicted felon (count two). The trial court sentenced him to forty years in prison on count one, to be followed by a consecutive, statutory-maximum term of thirty years in prison as a habitual felony offender (HFO) on count two; the sentence on count two was to be suspended after twenty years, with the remaining term to be served as two years of community control followed by eight years of probation. In the rule 3.850 motion underlying this appeal, Pressley asserted that his sentence on count one had expired in October 2012. In its answer brief in this appeal, the State asserts that according to the Department of Corrections, the sentence expired on November 5, 2012.

Regardless, on June 1, 2015, in a rule 3.800(a) proceeding, the postconviction court rendered an amended judgment and sentence reimposing the thirty-year split sentence on count two but ordering that it run concurrently with the sentence on count one. Two days later, Pressley was released from prison onto community control on count two.

Soon after his release, however, Pressley was alleged to have violated his community control. The court revoked his community control and sentenced him (on count two only) to thirty years in prison as an HFO with credit for 22.6 years for time served. This court affirmed without opinion Pressley's appeal of the revocation. Pressley v. State, 232 So.3d 332 (Fla. 2d DCA 2017) (table decision).

In his rule 3.850 motion, Pressley asserted that his counsel at the 2015 resentencing had been ineffective for failing to object that the reimposition of his thirty-year split sentence on count two (twenty years in prison followed by two years of community control followed by eight years of probation), after he had already spent more than twenty-two years in prison, would result in an illegal total sentence in excess of the thirty-year statutory maximum. The postconviction court denied Pressley relief, concluding that because his community control had been revoked, he was no longer serving his original thirty-year split sentence but was serving a new thirty-year incarcerative sentence against which he had received credit for all of his time served, and, therefore, he could not establish prejudice.

Pressley moved for rehearing, arguing that he had been prejudiced because, having spent more than twenty-two years in prison and taking into account gain-time credit, he had served his entire thirty-year sentence on count two and, therefore, should have been "released from the DOC on May 27, 2015[,] without any supervision to violate." The postconviction court denied rehearing, and this appeal followed.

Pressley's arguments in the postconviction court and on appeal have hardly been models of clarity. Affording them the liberal construction due pro se pleadings, however, see Tillman v. State, 287 So.2d 693, 694 (Fla. 2d DCA 1973), and having carefully reviewed the entire record, we conclude that at core, Pressley is arguing that the 2016 sentence imposed upon revocation of his community control is illegal because, at his 2015 resentencing hearing, the trial court erroneously failed to apply credit to his sentence on count two, and, consequently, he should never have been on community control to violate in the first place. The postconviction court plainly-and understandably-missed that aspect of Pressley's claim.

Accordingly, we reverse the order denying Pressley's rule 3.850 motion and remand for the postconviction court to consider the merits of Pressley's claim concerning the legality of his 2016 sentence, upon which we express no opinion. See Dries v. State, 899 So.2d 489, 489-90 (Fla. 2d DCA 2005) (reversing order denying motion for postconviction relief where motion for rehearing clarified basis for movant's claims). To the extent that the postconviction court determines that the pleadings are facially insufficient with respect to that claim, it should give Pressley the opportunity to amend.

Reversed; remanded with instructions.

KHOUZAM, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      In that appeal, Pressley challenged, on various grounds, the evidence presented at the revocation hearing.


text:
    D.Y., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0400
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   PER CURIAM.

D.Y., a juvenile, appeals an order placing D.Y. on probation under the supervision of the Department of Juvenile Justice ("DJJ") and withholding adjudication of delinquency. D.Y. had been adjudicated incompetent in a prior case that was ultimately dismissed. Thus, the trial court concluded that D.Y. remained legally incompetent and appointed two doctors to evaluate D.Y. One doctor concluded D.Y. was incompetent, while the second doctor found that D.Y. was competent. The trial court then appointed a third doctor who subsequently found D.Y. to be incompetent, but also opined that D.Y. could be malingering and feigning ignorance with regards to his legal competence. The trial court made an oral finding that D.Y. was competent to proceed to the adjudicatory hearing but failed to enter a written order memorializing its findings as to D.Y.'s competency. The case proceeded to an adjudicatory hearing where the trial court found D.Y. delinquent as charged, withheld adjudication, and placed D.Y. on probation.

Florida Rule of Criminal Procedure 3.212(b) provides, "If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed." Fla. R. Crim. P. 3.212(b). Thus, a trial court errs when it fails to enter a written order regarding a defendant's competency. See Gordon v. State, 219 So.3d 189, 197 (Fla. 3d DCA 2017) ("Here, the trial court made an oral finding that defendant was competent to proceed, but failed to render a written order to that effect. This cause must be remanded to the trial court to enter a written order consistent with its oral pronouncement."), review denied, Gordon v. State, SC17-978, 2017 WL 4546004, at *1 (Fla. Oct. 12, 2017).

Where the trial court has entered an oral finding that the defendant is competent, but no written order of competency has been entered, the proper remedy is to remand the case to the trial court for entry of a nunc pro tunc order finding the defendant competent to stand trial. Razuri v. State, 126 So.3d 261, 261 n.1 (Fla. 3d DCA 2010) (citing Corbitt v. State, 744 So.2d 1130 (Fla. 2d DCA 1999) ).

Here, the trial court failed to enter a written order reflecting the trial court's determination that D.Y. was competent to proceed to trial. Accordingly, we remand with instructions for the trial court to enter a written order, nunc pro tunc , reflecting its oral pronouncement regarding D.Y.'s competency.

      Moreover, on appeal, both parties request this Court remand the instant case for the trial court to enter a written order of competency. D.Y. has not raised any other objection on appeal to the finding of delinquency or to the disposition withholding adjudication and placing D.Y. on probation.


text:
    John URBANIAK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4612
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

John Urbaniak appeals his convictions and sentences for one count of battery and one count of attempted battery following a jury trial. We affirm Urbaniak's judgment and sentences but write to address one of his arguments on appeal and the State's response to it.

Law enforcement and EMS were dispatched to Urbaniak's home after receiving a 911 call from Urbaniak's sister. After the responding police deputy interviewed the individuals at the scene, he took Urbaniak into custody. Urbaniak argues that the deputy improperly commented on his right to remain silent when he testified on direct during the State's case-in-chief that he "did make an attempt to interview the defendant, but he was mute the whole time. He refused to talk.... [H]e was just making some mumblings and refused to talk." The deputy also testified, "I gave the defendant an opportunity to speak with me but he refused, so he was placed under arrest."

Comment on a defendant's silence after arrest is prohibited by the due process clause of the Florida Constitution. Art I, § 9, Fla. Const. "The standard for determining what constitutes a comment on [postarrest] silence is fairly liberal. 'If the comment is fairly susceptible of being construed by the jury as a comment on the defendant's exercise of his or her right to remain silent, it violates the defendant's right to silence.' " Green v. State, 27 So.3d 731, 735 (Fla. 2d DCA 2010) (quoting State v. Hoggins, 718 So.2d 761, 769 (Fla. 1998) ); see also State v. Smith, 573 So.2d 306, 317 (Fla. 1990) ("Our cases have made clear that courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.").

The State contends that the deputy's comments were "a recounting of what happened between the deputy and Urbaniak during [the] investigation rather than a comment on appellant's right to remain silent." We are not persuaded; the deputy's testimony that Urbaniak was arrested after he failed to offer any explanation about what had happened was certainly an impermissible comment on Urbaniak's right to remain silent. See, e.g., State v. Horwitz, 191 So.3d 429, 445 (Fla. 2016) (concluding that "[t]here [was] no question ... that the State directly commented on [the defendant's] silence" when the State elicited testimony from officers that the defendant "didn't answer" when asked about what had happened immediately after the incident); Parker v. State, 124 So.3d 1023, 1026 n.2 (Fla. 2d DCA 2013) (explaining that a detective's response that the defendant "just didn't answer the question" was an improper comment on the defendant's right to remain silent); Green, 27 So.3d at 736 (holding that an officer's testimony that the defendant "refused" to give any postarrest statements to police "was more than 'fairly susceptible' of being interpreted as a comment on [the defendant's] right to remain silent" and concluding that the admission of this testimony was reversible error); Ash v. State, 995 So.2d 1158, 1158 (Fla. 1st DCA 2008) (holding that an officer testifying that the defendant "replied that he's got nothing to say to me" when asked what had happened was a violation of the defendant's right to remain silent); Charton v. State, 716 So.2d 803, 806 (Fla. 4th DCA 1998) (affirming that comments regarding a defendant's refusal "to explain his presence and conduct" prior to arrest violated the defendant's right to remain silent); Carr v. State, 561 So.2d 617, 618-19 (Fla. 5th DCA 1990) (concluding that an officer testifying that when he asked the defendant what happened after arriving at the scene of a car accident, the defendant "carried on no dialogue and I got no answer" violated the defendant's right to remain silent).

In this case, the deputy specifically referred to Urbaniak's prearrest silence, which invokes a slightly different constitutional standard for admission than comment on postarrest silence. Although the use of a defendant's prearrest silence is not precluded in federal court unless the defendant first invoked his right to remain silent, Salinas v. Texas, 570 U.S. 178, 191, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) (plurality opinion) ("Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it."), the issue is more nuanced under the Florida Constitution, Horwitz, 191 So.3d at 439 ("[T]he privilege against self-incrimination provided in the Florida Constitution offers more protection than the right provided in the Fifth Amendment to the United States Constitution."). Under the Florida Constitution, the State may not admit a defendant's prearrest, pre- Miranda silence as substantive evidence of guilt or when the defendant fails to testify. Horwitz, 191 So.3d at 442 ("If [a defendant] could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers." (alteration in original) (quoting Commonwealth v. Molina, 628 Pa. 465, 104 A.3d 430, 450 (2014) ) ). However, prearrest, pre- Miranda silence may be used to impeach a defendant when he testifies at trial, "only if the silence was inconsistent with the defendant's testimony at trial." Id. at 440 (emphasis omitted); see also Hoggins, 718 So.2d at 770 n.11. "If no inconsistency exists, then the silence lacks probative value and is inadmissible." Horwitz, 191 So.3d at 442 (quoting Hoggins, 718 So.2d at 766 ). Because the State admitted the deputy's testimony during its case-in-chief, there is no plausible argument in this case that the testimony was offered to impeach Urbaniak's trial testimony.

Urbaniak did not object to either statement from the deputy at trial. Therefore, our review is for fundamental error. See F.B. v. State, 852 So.2d 226, 229 (Fla. 2003). "[T]o be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960) ). Here, the record does not reflect that the State relied on Urbaniak's silence as substantive evidence of his guilt. The State did not refer to Urbaniak's silence during cross-examination of Urbaniak or during closing. Because the only reference to Urbaniak's silence was the isolated testimony of the deputy, we cannot conclude that the improper comment rose to the level of fundamental error in this case. Therefore, we affirm his convictions and sentences. See Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999) ("While an improper comment on a defendant's right to remain silent may be constitutional error, it is not considered fundamental error.").

Affirmed.

KHOUZAM, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Odalys CORDERO, Appellant, v. WASHINGTON MUTUAL BANK, Appellee.
    No. 3D17-2153
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Alfonso Oviedo-Reyes, for appellant.
    Law Offices of Damian G. Waldman, P.A., and Damian G. Waldman (Largo), for appellee.
    Before SUAREZ, SALTER and EMAS, JJ.
   PER CURIAM.

Odalys Cordero appeals from 1) the trial court's order directing issuance of a writ of possession; 2) the actual writ issued by the clerk; and 3) a subsequent order denying the motion to stay execution of the writ. We dismiss in part, and affirm in part.

Washington Mutual Bank filed a mortgage foreclosure action against Cordero in 2008. Final judgment of foreclosure was entered in 2013, and a subsequent sale of the foreclosed property took place in 2016.

The certificate of title was issued in July 2017.

On August 2, 2017, Washington Mutual filed a verified motion for issuance of a writ of possession. On August 21, Cordero filed an eighteen-page response in opposition to the requested writ of possession.

The court granted the motion for a writ of possession and, on August 23, 2017, rendered an order directing the clerk to issue a writ of possession, executable on or after September 8, 2017.

On August 25, 2017, the clerk of the circuit court issued the writ, which provided that it was to be executed on or after September 8, 2017.

On August 31, 2017, Cordero filed a motion to stay execution of the writ of possession. That motion attacked the underlying final judgment of foreclosure rendered in 2013. On September 6, 2017, the trial court denied Cordero's motion to stay execution of the writ of possession.

On September 29, 2017, Cordero filed her notice of appeal, asserting she was appealing the August 23rd order, the August 25th writ, and the September 6th order denying stay of the writ.

As to the August 25th writ of possession, this writ is issued by the clerk of the courts and is not an appealable order. See Lezdey v. HSBC Bank USA, N.A., 71 So.3d 124 (Fla. 2d DCA 2011).

As to the August 23rd order granting the writ of possession, Cordero's notice of appeal (filed September 29) is untimely. Appellant was required to file her notice within thirty days of rendition. Fla. R. App. P. 9.110(b) (providing that jurisdiction of this court shall be invoked by filing a notice within thirty days of rendition of the order to be reviewed); Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927 (Fla. 3d DCA 2016) (holding appellate court lacked jurisdiction to review order granting issuance of writ of possession where notice of appeal was filed more than thirty days after rendition of order).

The appeal from the September 6th order, while timely on its face, is nevertheless without merit. Instead of filing a timely notice of appeal from the order directing issuance of the writ, Cordero chose instead to file a motion to stay execution of the writ. Notwithstanding its title, the motion was in substance nothing more than a reconstituted attack on the underlying final judgment. Cordero's motion was, in effect, a successive motion seeking reconsideration and vacatur of the trial court's 2013 final judgment, which was no longer appealable. An untimely appeal of a prior order cannot be revived by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of that most recent order. Campos v. Campos, 230 So.3d 553 (Fla. 1st DCA 2017) ; Small v. Devon Condo. B Ass'n, Inc., 141 So.3d 574 (Fla. 4th DCA 2014) ; Caldwell v. Wal-Mart Stores, Inc., 980 So.2d 1226 (Fla. 1st DCA 2008). Even if Cordero could validly appeal the order denying her motion to stay execution of the writ, it is of no moment. Given Cordero's failure to timely appeal the final judgment and the order directing issuance of the writ of possession, combined with her failure to advance any argument upon which the court could find an abuse of discretion, we affirm the trial court's order denying her motion to stay execution of the writ.

The appeal from the August 23, 2017 order and the August 25, 2017 writ are dismissed. The order of September 6, 2017, denying motion to stay execution of the writ of possession, is affirmed.

      Cordero filed at least three motions to vacate the final judgment, the last of which was filed in April 2017. The trial court denied that motion in June 2017 and Cordero did not appeal that order.

      This is reconfirmed by Cordero's initial brief, which requests that this court, inter alia, vacate the 2013 final judgment of foreclosure and the July 2017 certificate of title.


text:
    Terry MARSHALL III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-2763
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Terry Marshall III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Terry Marshall III robbed an acquaintance at gunpoint. After Marshall was convicted of armed robbery, the trial court sentenced him to thirty-three years in prison as a habitual violent offender pursuant to section 775.084, Florida Statutes. As part of that sentence, the court imposed a fifteen year mandatory-minimum term. See § 775.084(4)(b), Fla. Stat. (2012) (providing that a habitual violent felony offender convicted of a first-degree felony "shall not be eligible for release for 15 years"). Because the jury found Marshall was in actual possession of a firearm during the robbery, the court also imposed a ten year mandatory-minimum term. See § 775.087(2)(a)1., Fla. Stat. (2012) (providing that an offender who actually possessed a firearm during certain offenses, including robbery, "shall be sentenced to a minimum term of imprisonment of 10 years"). Over defense counsel's objection, the court orally imposed the two mandatory-minimum terms consecutively. Marshall's direct appeal, which only challenged an evidentiary ruling during trial, resulted in affirmance without opinion. Marshall v. State , 166 So.3d 772 (Fla. 1st DCA 2015) (table).

Marshall now files a petition alleging ineffective assistance of appellate counsel. He claims his appointed attorney should have contested the consecutive mandatory-minimum terms. He correctly contends the consecutive sentences were not permitted by law. See Jones v. State , 667 So.2d 349, 349 (Fla. 1st DCA 1995) ("[O]n the authority of the recent decision of the Florida Supreme Court in Jackson v. State , 659 So.2d 1060 (Fla. 1995), we hold that the trial court erred in imposing a consecutive three-year minimum mandatory sentence for the use of a firearm together with a 15-year habitual violent felony offender sentence for offenses that arose out of a single criminal episode."). The State argues that Marshall cannot demonstrate the required prejudice to be entitled to relief, see Rutherford v. Moore , 774 So.2d 637, 643 (Fla. 2000), because the written judgment and sentence imposed the two mandatory-minimum terms concurrently. But the oral pronouncement controls, Ashley v. State , 850 So.2d 1265 (Fla. 2003), and Marshall is currently serving an unlawful sentence.

We conclude Marshall's appellate counsel was ineffective for failing to move to correct the sentence and, if unsuccessful, raising the issue on direct appeal. See Fla. R. App. P. 9.140(e) (providing that a sentencing error may not be raised on appeal unless first brought to the attention of the lower court at the time of sentencing or by a rule 3.800(b) motion); Fla. R. Crim. P. 3.800(b) (2) (permitting appellate counsel to file a motion to correct a sentencing error while a direct appeal is pending); Anderson v. State , 988 So.2d 144, 146 (Fla. 1st DCA 2008) (finding appellate counsel ineffective for failing to file a rule 3.800(b)(2) motion challenging an illegal reclassification of the degree of felony).

Accordingly, we grant the petition and direct the trial court to resentence Marshall. See id. ("[W]here a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would have been entitled had the issue been raised in the original appeal.").

PETITION GRANTED .

Wolf, Osterhaus, and Winsor, JJ., Concur.

      Marshall raises a second ineffective assistance claim which we reject without discussion.


text:
    Anthony Jerome CROMARTIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0556
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant appeals from a judgment and sentence entered after the trial court found he had willfully and substantially violated his probation. He argues that we should reverse the revocation order because one of the seven violations the circuit court found is not supported by sufficient evidence. While we agree with the premise of Appellant's argument, we do not agree with the conclusion. We find that the trial court's error is harmless and affirm its order revoking his probation and the judgment and sentence that followed.

A jury found that Appellant had illegally possessed cocaine, marijuana, and drug equipment, and the court sentenced him to serve a total of three years on probation. The terms of his probation required, among other things, that he live without violating the law, not associate with individuals engaged in criminal activity, promptly and truthfully answer questions from his probation officers, completely abstain from the use of alcohol and illicit drugs, and submit to random drug screenings. The testimony produced at the hearing supports the court's findings that he twice tested positive for marijuana and would not admit to drug use when queried by his probation officers on either occasion. However, there was no evidence that he associated with anyone engaged in criminal activity. Therefore, the court's finding that he had done so is not supported by the record. See Savage v. State , 120 So.3d 619, 621 (Fla. 2d DCA 2013) ("Many appellate decisions state that a revocation order is reviewed for an abuse of discretion; in actuality, on appeal, we first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence.").

We must next determine whether the court would have revoked Appellant's probation and sentenced him to the same two years in prison had it declined to find that Appellant associated with someone engaged in criminal activity. See Reed v. State , 127 So.3d 817, 819 (Fla. 2d DCA 2013) ; David v. State , 75 So.3d 386, 387 (Fla. 1st DCA 2011). The court clearly stated it was revoking Appellant's probation and sentencing him to two years in prison because he continued to use drugs while on probation for possessing drugs. The court never mentioned an association with someone involved in criminal activity. Therefore, it is clear that the court would have made the same decisions had it properly found that there was no evidence Appellant associated with people engaged in criminal activity. We therefore affirm the court's decision to revoke Appellant's probation and sentence him to two years in prison. We however instruct the trial court to strike the order revoking probation and enter an amended revocation order that omits the finding that Appellant violated term six of his probation. See Reed , 127 So.3d at 819-20.

AFFIRMED and REMANDED with instructions.

Wetherell, Makar, and Kelsey, JJ., Concur.


author: Winsor, J.

text:
    Dylan ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3126
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Dylan Robinson challenges his convictions for sexual assault. After careful consideration of the arguments and the record, and with the benefit of oral argument, we affirm.

In the fall of 2014, a University of West Florida sophomore invited Robinson up to her dorm room. The young woman had met Robinson the day before, and Robinson asked if he could visit her while he was on campus. Inside her dorm room, the two talked for a while before eventually kissing. The young woman was okay with kissing, but Robinson did not stop there. He soon became more aggressive, closed the door, and turned off the lights. He picked up the young woman, put her on her bed, and held her down. He grabbed her neck, pulled down her pants, and forced himself on her.

When it was over, Robinson changed his shirt and left the dorm. The young woman called her friends, who called the police. She then went to the hospital, where a nurse examined her and found internal tearing, blood, and a neck bruise in the shape of a hand. Her underwear, soaked with blood, was collected for DNA testing.

The State charged Robinson with three counts of sexual battery with force likely to cause serious personal injury, based on three separate acts. Robinson testified at trial, admitting to sex but claiming it was consensual. The young woman testified too, and she said it was not consensual; she said Robinson had raped her. The jury believed the young woman and convicted Robinson on two of the three counts. Robinson was sentenced to concurrent terms of twenty-five years' imprisonment. He now appeals, raising three issues.

Robinson's first argument on appeal is that the trial court erred by excluding evidence of third-party DNA found in the young woman's underwear. Although Florida's Rape Shield law generally precludes this type of evidence to show consent, § 794.022(2), Fla. Stat. (2014), Robinson maintains the evidence was relevant to show someone else caused her injuries, see McGriff v. State , 601 So.2d 1320, 1321 (Fla. 2d DCA 1992) ("Evidence of a victim's prior sexual encounters with others is admissible ... to show that the defendant was not the source of the victim's injury."). But this argument was never made below, even after the State sought to exclude evidence of the young woman's sexual history through a motion in limine-a motion the court granted without objection. Therefore, this argument was not preserved for our review. See Steinhorst v. State , 412 So.2d 332, 338 (Fla. 1982).

Robinson next argues that the trial court erred by allowing a nurse to offer certain expert testimony. The nurse had performed the young woman's sexual-assault examination after the incident, and counsel asked her whether the young woman's injuries were "what you might see after forced sexual intercourse or sexual battery." The nurse answered affirmatively, Robinson objected that the nurse had not been qualified as an expert, and after voir dire, the court allowed the testimony. Robinson maintains the nurse was not qualified to answer. We review only for an abuse of discretion, see Penalver v. State , 926 So.2d 1118, 1134 (Fla. 2006), and we find none. On voir dire, the nurse testified about her training and education, that she was board certified as a sexual assault nurse examiner, and that she performed more than thirty similar exams throughout her training and practice. Given these facts, the court acted within its discretion in allowing the testimony. And at any rate, the nurse acknowledged on cross that the injuries were also consistent with injuries she might expect to see from consensual sex. Therefore, even if there were error in admitting the testimony, we would find it harmless beyond reasonable doubt.

Finally, Robinson contends the trial court should have granted his motion for judgment of acquittal, an issue we review de novo. Huggins v. State , 135 So.3d 306, 308 (Fla. 1st DCA 2012). The State asked the jury to convict Robinson of sexual battery with force likely to cause serious personal injury, but the verdict form also included the lesser included offense of sexual battery. The jury chose the greater offense, but Robinson argues the State presented insufficient evidence that he used force likely to cause "serious personal injury," a term defined to include "great bodily harm or pain." § 794.011(1)(g), Fla. Stat. (2014). In other words, Robinson contends the greatest offense for which he could be convicted was sexual battery. Viewing the evidence in a light most favorable to the State-as we must, Ibeagwa v. State , 141 So.3d 246, 246-47 (Fla. 1st DCA 2014) -we conclude there was sufficient evidence to support the jury's verdict. The young woman testified that Robinson held her down by her neck, bit her, made her bleed, and caused her great pain. The young woman's medical records, entered into evidence, detailed a half-centimeter vaginal tear, significant bruising and discoloration on her neck, and bleeding following the attack. Other witnesses testified to seeing significant amounts of blood on the young woman's bed sheets, and Robinson himself testified that he changed shirts afterward because the shirt he wore during the encounter was covered in blood. This evidence-and all the inferences drawn from it-were sufficient to allow a reasonable jury to conclude that Robinson used force sufficient to cause "great bodily harm or pain."

AFFIRMED .

Bilbrey and M.K. Thomas, JJ., concur.


text:
    Cash W. PAWLEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4695
    District Court of Appeal of Florida, First District.
    April 3, 2018
    Cash W. Pawley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Rivera v. Department of Health , 177 So.3d 1 (Fla. 1st DCA 2015).

Wolf, Roberts, and Wetherell, JJ., concur.