text:
    Juan CASTRO and Myriam Lopez, Appellants, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    Case No. 2D15-5456
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Rehearing Denied October 20, 2017

      Aaron S. Kling of Smith, Kling & Thompson, P.A., Tampa, for Appellants.
    Andrew A. Labbe and Jonathan T. Hall of Groelle & Salmon, P.A., Tampa, for Appellee.
   SLEET, Judge.

Juan Castro and Myriam Lopez appeal the final summary judgment in favor of their insurance company, Homeowners Choice Property & Casualty Insurance Company, in this breach of contract action. Because Homeowners Choice denied coverage of their claim, Castro and Lopez’s subsequent failure to comply with the insurance policy’s conditions did not act as a bar to their filing suit, and we must reverse.

This case involves a dispute between Castro and Lopez and Homeowners Choice about whether the damage to their property was caused by sinkhole activity. On May 4, 2010, Castro and Lopez noticed damage to their home that appeared to be caused by sinkhole activity. They filed a notice of claim with Homeowners Choice. On June 15, 2010, Homeowners Choice retained SDI Engineering to conduct a sinkhole investigation. SDI did not find any evidence of sinkhole activity, and Homeowners Choice denied coverage on July. 12, 2010, based on the policy exclusion for damage caused by the movement of the earth beneath the residence. It is undisputed that prior to denial of .the claim, Homeowners Choice did not request that either Castro or Lopez submit to an examination under oath (EUO), file a sworn proof of loss, or submit records and documents in accordance with the “Your Duties After Loss” section of their insurance policy. And the denial of coverage letter did not reference the policy provisions addressing their duties after loss or advise of any conditions that needed to be met prior to their filing suit.

Four years later, Castro and Lopez retained FTE Engineers & Planners, which conducted an investigation and concluded that the damage to the home was caused by sinkhole activity. On. November 4, 2014, Castro and Lopez .sent letters .to Homeowners Choice that included a copy of the FTE report and a request that Homeowners Choice “reconsider” its denial of coverage within fourteen days. Homeowners Choice, through its attorney, replied by faxed letter acknowledging that Castro and Lopez had provided new information and requesting that Castro and Lopez each submit to an EUO, provide a sworn proof of loss, and provide copies, of all documentation from FTE. Homeowners Choice did not provide a date, time, or location for the EUOs.

On December 18, 2014, Castro and Lopez filed suit against Homeowners Choice for breach of insurance contract. On December 30, 2014, Homeowners Choice provided Castro and Lopez with dates for the EUOs. On December 31, 2014, counsel for Homeowners Choice informed Castro and Lopez that filing their lawsuit violated the “Suit Against Us” provision of their policy and demanded that Castro and Lopez withdraw their lawsuit and coordinate thé EUOs by January 9, 2015. Castro and Lopez did not withdraw their lawsuit, and the' record includes emails between their attorney and counsel for Homeowners Choice that demonstrate an agreement-to schedule the EUOs in January'2015. The last email from 'Castro and Lopez’s attorney was dated January 8, 2015, and provided a date and time for the EUOs. There was no . response from Honieowners Choice. ■

' Homeowners Choice filed a motion for summary judgment based upon Castro and Lopez’s refusal to comply with its demand for EUOs and the submission of a sworn proof of loss. Homeowners Choice argued that Castro and Lopez’s provision of the FTE report along with their request to reconsider- the- claim constituted a reopening of the claim that allowed it to require Castro and Lopez to comply with the policy’s,¡conditions precedent to filing suit. Homeowners Choice contended that Castro and Lopez’s refusal to comply with those conditions precedent was therefore a willful and material breach of the insurance contract that precluded recovery under the policy. Homeowners Choice attached an affidavit from a company employee who stated that the claim was reopened because Castro and Lopez provided a new engineering report. Also attached was an affidavit from the chief engineer of SDI, who reaffirmed that there was no sinkhole activity at Castro and Lopez’s residence.

In response, Castro and Lopez asserted that Homeowners Choice waived compliance with the conditions precedent to filing suit when it unequivocally denied coverage. The trial court disagreed and entered final summary judgment in favor of Homeowners Choice without making any findings of fact or conclusions of law. This appeal ensued.

The standard of review applicable to the granting of a summary judgment motion is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment can only be granted if there is no issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. If there is “the slightest doubt that an issue might exist, that doubt must be resolved against the moving party.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000), Furthermore,

“[a] motion for summary judgment is not a substitute for - a trial on the merits.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). Therefore, rather than resolving any disputed issues of fact, id., “the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact,’” Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla 4th DCA 2004).

Redland Ins. Co. v. Cem Site Constructors, Inc., 86 So.3d 1259, 1261 (Fla. 2d DCA 2012).

When an insurance carrier investigates a claim of loss and denies coverage because it concludes that a covered loss has not occurred, the insurance carrier cannot assert the insured’s failure to comply with the policy’s conditions precedent to filing suit as a basis for summary judgment. Tower Hill Select Ins. Co. v. McKee, 151 So.3d 2, 3-4 (Fla. 2d DCA 2014). In. McKee, this court addressed a factual scenario similar to the one at issue here and concluded that

[w]hen [the insurer] denied coverage a valid dispute as to the existence of a covered loss under the insurance policy arose. Accordingly, [the homeowner’s] complaint properly sought a determination as to whether [the insurer] breached the insurance contract by denying coverage of a covered loss. The policy provisions containing conditions precedent to suit that [the insurer] relie[d] on ... were only relevant to a situation where [the insurer] -admitted liability and a dispute as to the amount of recovery arose. Accordingly, they could not act to bar [the homeowner] from filing suit when [the insurer] denied his insur-anee claim entirely.

Id. (citations omitted); see also Indian River State Bank v. Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228, 246 (1903) (“A simple allegation of the denial of all liability on the policy by the company ... was sufficient to give to the plaintiff any advantage to be derived from the waiver of proofs of loss following as a legal consequence upon a denial Of liability.”); Hartford Accident & Indem. Co. v. Phelps, 294 So.2d 362, 365 (Fla. 1st DCA 1974) (“[A]n insurer, by unconditionally denying any liability upon its policy, waives proof of loss required ’ by the policy.”). Accordingly, when Homeowners Choice denied Castro and Lopez’s claim, it foreclosed its right to later assert their failure' to comply with the policy’s conditions precedent, leaving Castro and Lopez free to file a lawsuit for breach of the' insurance contract at any time within the five-year statute of limitations period.

Furthermore, we reject Homeowners Choice’s contention that Castro and Lopez’s subsequent submission of the FTE report and request tp reconsider the claim constituted a reopening of the claim that somehow nullified its previous denial of coverage. Castro and .Lopez’s insurance policy does not include any reference to or definition of the term “reopened claim,” nor does it. include any language that would inform an insured that an attempt to negotiate a settlement after a denial of coverage would act as a reopening of- a claim requiring the insured to comply with policy conditions precedent, that it never initially- invoked, or requested. Furthermore, Florida law regulating insurance does not define what constitutes the reopening of a claim of loss after a denial of coverage or .reference any obligation that an insured comply with policy conditions precedent after the denial of coverage.

Additionally, Homeowners Choice’s reliance on the phrase “initial, reopened, or supplemental property insurance claim” in section 627.70131(5)(a),. Florida Statutes (2014), is misplaced. Section 627.70131(5)(a) authorizes the inclusion of prejudgment interest on “[a]ny payment of an initial or supplemental claim ... made [ninety] days after the insurer receives notice of the claim, or made more than [fifteen] days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later.” It does not define “reopened claim” or require an insured to perform any conditions precedent prior to filing suit against an insurer.

We also note that in order to file suit, Castro and Lopez were under no obligation to first provide Homeowners Choice with the FTE report contradicting its engineer’s conclusion that the damage to the residence was not sinkhole related. See Citizens Prop. Ins. Corp. v. Munoz, 158 So.3d 671, 673 (Fla. 2d DCA 2014) (“The trial court properly denied Citizens’ motion for directed verdict because the Munozes were under no obligation to provide a contrary report to Citizens before filing suit.”); Herrera v. Tower Hill Preferred Ins. Co., 161 So.3d 565, 568 (Fla. 2d DCA 2014) (“The policy did not require the Herreras to give the Geohazards report to Tower Hill unless they had the report at the time of the clairpt ] but before Tower Hill denied it.”). The fact that they engaged an engineering firm that reached the conclusion that sinkhole activity caused the damage to their home and provided that report to Homeowners Choice as a courtesy did not legally resuscitate the requirement that they comply with their policy’s conditions precedent to filing suit. Moreover, the FTE report is discoverable, and Homeowners Choice is entitled to depose Castro and Lopez’s engineers prior to trial. See generally Fla. R. Civ. P. 1.280.

Accordingly, the trial court erred in determining that Castro and Lopez were barred from bringing this breach of contract action and in granting summary judgment in Homeowners Choice’s favor, and we must reverse and remand for further proceedings.

Reversed and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . This clause of the insurance policy provides in part as follows:
      In case of a loss to covered property, you must see that the following are done:

      f. As often as we reasonably require: (1)Show the damaged property;
      (2) Provide us with the records and documents we request and permit us to make copies; and
      (3) Submit to examination under oath, while not in the presence of any other ‘‘insured,” and sign the same.
      g. Send to us within [sixty] days of our request, your signed, sworn proof of loss

      . The “Suit Against Us” clause provides as follows:
      No action can be brought against us; unless:
      a. There-has been full compliance with all of the terms of this policy; and
      b, The action is started' within [five] years after the date of loss;
      Except that the time for filing suit is extended for' a period of [sixty] days following the conclusion of the neutral evaluation process or [five] years, whichever is later.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Z.L., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3504
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017.
    Rehearing Denied October 17, 2017

      Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Z.L. appeals' the disposition order finding him guilty of third-degree grand theft. We agree with the State’s concession that the trial court conducted an inadequate Richardson hearing, Accordingly, we reverse the order finding Z.L. guilty and remand for a new adjudicatory hearing.

Z.L. is accused of having taken a Nintendo game system, five games, and -a protective case for the Nintendo from his step-brother. On the morning of the adjudicatory hearing,'the victim informed the prosecutor that Z.L. had previously admitted to him that he committed the theft. The prosecutor chose not to disclose the admission to the defense under the mistaken belief that Z.L. had waived disclosure by not deposing the victim. See Powell v. State, 912 So.2d 698, 701 (Fla. 2d DCA 2005) (“[T]he failure of the defense to depose a known witness ⅛ insufficient to overcome the state’s -failure to inform the defense of a statement made by the defendant to which the witness testifies,’ ” (quoting Rainey v. State, 596 So.2d 1295, 1296 (Fla. 2d DCA 1992))),

After the victim testified about the admission, Z.L. correctly argued to the trial court that the State had committed a discovery violation by not disclosing the statement. See State v. Evans, 770 So.2d 1174, 1179 (Fla. 2000) (“In cases ... where the State fails to disclose to the defendant, prior to trial, the substance of any oral statement allegedly made by the defendant, then the State has committed a discovery violation and the trial court must conduct a Richardson hearing upon learning of the possible violation,”); see also Fla. R. Juv. P. 8.060(h) (imposing a continuing duty to provide supplemental discovery).

In addressing the potential violation, the trial court did hot make the findings that Richardson requires. See Knight v. State, 76 So.3d 879, 888 (Fla. 2011) (explaining that when a party alleges a discovery violation, the trial court must inquire into the surrounding circumstances and determine (1) whether a discovery violation occurred, (2) “whether the State’s discovery violation was inadvertent or willful,” (3) “whether the violation was trivial or substantial,” and (4) “most importantly, what affect [sic] it had on the defendant’s ability to prepare for trial”). The court instead examined only one of the Richardson prongs—whether the violation was inadvertent or willful—and concluded, “to the extent that there’s any violation, it was inadvertent.” The court’s failure to inquire into each of the Richardson prongs was error.

Further, that error was harmful. We cannot say “beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation,” as “there is, a reasonable possibility that [Z.L.’s] trial preparation or strategy would have been materially different” had he known that the State possessed an admission to the offense. Scipio v. State, 928 So.2d 1138, 1147 (Fla. 2006) (quoting State v. Schopp, 653 So.2d 1016, 1020-21 (Fla. 1995)). The court’s inadequate Richardson hearing therefore-necessitates, a new adjudicatory hearing. See Ibarra v. State, 56 So.3d 70, 72 (Fla. 2d DCA 2011).

Accordingly, we reverse the order finding Z.L. guilty of third-degree grand theft and remand for a new adjudicatory hearing on that offense.

Reversed and remanded.

CASANUEVA, CRENSHAW, and LUCAS, JJ., Concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . Although the State also conceded that the evidence was legally insufficient to support the charged offense, we decline to accept that concession because the issue was unpreserved and the error is not fundamental. See Young v. State, 141 So.3d 161, 165 (Fla. 2013); Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002).


text:
    Joseph RINGELMAN, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Case No. 5D16-260
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    Rehearing Denied October 31, 2017

      George A. Vaka and Nancy Á. Lauten, of Vaka Law Group, P.L., Tampa, for Appellant. » ■
    Jonathan D. Franklin, of Franklin Legal Group, P.A., Miami, for Appellee.
   PER CURIAM.

Appellant, Joseph Ringelman, appeals a final judgment entered in his favor following his suit for breach of contract against his insurer, Citizens Property' Insurance Corporation (“Citizens”). Ringelman argues on appeal that the trial court erred by staying execution of the final judgment until he provides Citizens with a signed contract for completion of the necessary subsurface repairs to his home, which was damaged by sinkhole activity. Considering Citizens’s representations during oral argument, we affirm. ■

Citizens issued Ringelman a homeowner’s insurance policy that provided coverage limits of $225,900. The policy included the following provisions concerning sinkhole damage:

SECTION I—PERILS INSURED AGAINST
The following is added to SECTION I— PERILS INSURED AGAINST:
Sinkhole Loss.
1. We insure for direct physical loss to , property covered under Section I caused by the peril of “sinkhole loss,” including-the costs incurred to:
a. Stabilize the land and building; and
b. Repair the.foundation;
In accordance with the recommendations of the professional engineer who verifies the presence of a “sinkhole loss” in compliance with Florida sinkhole testing standards and in consultation with you.
The professional engineer must be selected or approved by us.
,2. This peril does not increase the limit of liability applying to the covered property.
SECTION I—CONDITIONS
Loss Settlement paragraph 3.b.(5) is added as follows:
(5) In the event of a “sinkhole loss”:
(a) We will pay for “Sinkhole loss,” subject to (e)(ii) below;, up to the applicable Section I—Property Coverage Limit of Liability shown in your Declarations.
(b) We will pay no more than the actual cash value of the damaged property;, not including underpinning or grouting or.any-.other repair tech-ñique performed below the existing foundation of the building, until yon enter- into a contract for the perform? anee of building stabilization or . foundation repairs.
(c) Once you enter into such' contract, we will, pay the amounts necessary to begin and perform such repairs as the work is performed and as the expenses are incurred. ,
(d) We may'at our option, and with your written approval and written approval,, of any lienholder, make payment directly to .the persons selected -by you to perform the land and building .stabilization and foundation repairs.
(e) If repair has begun and the professional engineer selected or approved by. us determines that the repairs will exceed the applicable Limit of Insurance, we- will at our option; either:
(i) Complete the professional engineer’s recommended repairs; or
(ii) Pay the policy limits without a reduction for the repair expenses incurred.

In June 2011, Ringelman notified Citizens that he discovered damage to the floors and walls of his home purportedly-caused by sinkhole activity. At the conclusion of the claims process, Citizens extended coverage for the sinkhole loss, informing Ringelman that it would pay $208,322.36 to stabilize his home after he provided Citizens with a signed contract to complete the subsurface repairs. Ringelman responded by sending Citizens a “Sinkhole Demand Package,” requesting a total of $329,110.56 to effect the stabilization repairs. When negotiations reached an impasse, Ringelman filed suit against Citizens for breach of contract, requesting that the jury determine the amount required to effectuate the repairs. The jury returned a verdict against Citizens, finding that it “breached the policy for below ground damages caused by sinkhole activity.” The jury determined that “the total amount of subsurface repair costs” amounted to $445,000.

Post-trial, Citizens moved for remittitur, reasoning that the jury’s award “exceed[ed] the available insurance coverage by at least $219,000, which does hot include any prior payments for the deductible.” Citizens further argued in opposition to Ringelman’s motion for entry of final judgment that any duty to-pay the claim must be preceded by Ringelman providing it with a signed contract to complete the necessary repairs. Ultimately, the lower court granted Citizens’s motion for remittitur, reducing the verdict “to the insurance policy limits ($225,900), minus the deductible and previous payments.” Ringelman filed a “qualified acceptance of remittitur,” explaining that he “reserv[ed] his right to challenge ... the portion of the order that requires Mr. Ringelman .to enter into a contract to repair the sinkhole-damaged property when the cost of those repairs ... far exceed the policy limits and the amount of the remitted judgment.”

After a hearing at which the parties attempted to agree on the language of the final judgment, Citizens proposed a final judgment that included the following provisions:

(A) The verdict is remitted to subject insurance policy limits ($225,900.00), minus. the deductible and- any previous payments, if any.
(B) The-Plaintiff must use the net proceeds from the remitted monetary final judgment, after consideration of the reasonable attorney’s fees and reasonable litigation costs, to repair the sinkhole-damaged property; unless, Defendant pursuant to the subject policy, chooses to exceed the policy limits in the repair of the property.
(C) Execution of this Final Judgment shall be stayed pending the Plaintiff providing Defendant with signed contracts to complete the stabilization and/or cosmetic repairs at the insured property.
(D) That given the Plaintiff is the prevailing party in this action, he is entitled to an award of his reasonable attorney’s fees, costs, and interest in the matter as lawfully appropriate.
(E) The Court retains jurisdiction to determine the amount of attorney’s fees, costs, and interest that the Plaintiff may recover from Defendant.

Ringelman maintained his position that, because the trial court remitted the verdict to-the policy limit, the proposed final judgment placed him in a precarious position wherein he would have to “enter into a contract to, quote, repair, for a house that can’t be repaired for the $225,000.” The trial court disagreed, entering a final judgment containing the aforementioned provisions requested by Citizens. Ringelman now challenges the portion of the final judgment staying execution until he provides' Citizens with, a signed contract to complete the necessary repairs.

“The issue in this case concerns construction of an insurance policy which is a question of law subject to de novo review.” Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013). Section 627.707, Florida Statutes (2011), sets forth the procedures for resolving sinkhole claims. If the insurer verifies damage caused by sinkhole activity, it must adhere to the following procedures, for repairing the damage:

(5) If a sinkhole loss is verified, the insurer shall pay to stabilize the land and building and repair the foundation in accordance with the recommendations of the professional engineer retained pursuant to subsection (2), with notice to the policyholder, subject to the coverage and terms of the policy. The insurer shall pay for other repairs to the structure and contents in accordance with the terms of the policy. ... However, if the insurer’s professional engineer determines that-the repair cannot be completed within policy limits, the insurer must pay to complete the repairs recommended by the insurer’s professional engineer or tender the policy limits to the policyholder.
(a)The insurer may limit its total claims payment to the actual cash value of the sinkhole loss, which does not include underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs in accordance with the recommendations set forth in the insurer’s report issued pursuant to s. 627.7073.
(b) In order to' prevent additional damage to the building or structure, the policyholder must enter into a contract for the performance of building stabilization and foundation repairs within 90 days after the insurance company confirms coverage for the sinkhole loss and notifies the policyholder of such confirmation. This time period is tolled if either party invokes the neutral evaluation process,- and begins again 10 days after the conclusion of the neutral evaluation process.
(c) After the policyholder enters into the contract for the performance of building stabilization and foundation repairs, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. The insurer may not -require the policyholder to advance payment for such repairs. If repair covered by a personal lines residential property insurance policy has begun and the professional engineer selected or approved by the insurer determines that the repair cannot be completed within the policy limits, the insurer must complete the professional engineer’s recommended repair or tender the policy limits to-the policyholder without a reduction for the repair expenses incurred.

Id. § 627.707(5) (emphasis added).

The Second District Court has issued several opinions resolving the precise issue in this case, all of which addressed the same sinkhole provisions in Ringelman’s insurance policy. For example, in Citizens Property Insurance Corp. v. Amat, 198 So.3d 730, 731 (Fla. 2d DCA 2016), the homeowners reported damage to their home from suspected sinkhole activity. Citizens denied the claim, and the case proceeded to a jury trial. Id. After the jury returned a verdict for. the homeowners, the trial court entered final judgment against Citizens for approximately $168,000. Id. On appeal, Citizens argued the trial court erred by “requiring it to pay for the cost of the subsurface repairs without requiring the Homeowners to enter, into a contract for those repairs.” Id. at 732. The Second District' Court agreed:

Subparagraph (b) allows for immediate payment for,only cosmetic.repairs, i.e., repairs for damages occurring above the ground. In contrast, subparagraph (b) provides that payment will not be made for subsurface stabilization and repair, i.e., damages occurring below the ground, until the insureds enter into a .contract for the subsurface repairs. ...
Thus, even if this- case could be said to involve “a total breach of the contract,” the Homeowners themselves chose to enforce the contract, not to rescind it. Based on the jury’s finding of coverage, the trial court was obligated to enforce the contract, including the policy’s restrictions on Citizens’ obligations to- pay for the cost of the repair for .subsurface damages.

Id. at 733-34. Accordingly, the court reversed the “final judgment to the extent that it awarded money damages payable to the Homeowners without recognizing Citizens’s right to withhold payment for the cost of the subsurface repairs' until the Homeowners enter' into a contract for those repairs,” Id. at 735. The Second District Court has reached the same conclusion in several additional eases. See, e.g., Citizens Prop. Ins. Corp. v. Simoneau, 197 So.3d 70, 71 (Fla. 2d DCA 2016); Citizens Prop. Ins. Corp. v. Blaha, 194 So.3d 411, 416 (Fla. 2d DCA 2016); Citizens Prop. Ins. Corp. v. Retz, 193 So.3d 1084, 1084 (Fla. 2d DCA 2016).

During oral argument in this case, the parties answered questions from the panel regarding which party bears'responsibility for paying the cost to repair the home above the $225,900 policy limit, given that the jury determined that it would cost $445,000 to stabilize Ringelman’s home. Counsel for Citizens made the following specific representation:

We have asked for a repair contract to perform the repairs that the jury found were necessary and we have asked for that contract so that we can pay which means we wiíl exceed our policy limits. That is consistent with the statute. ... As soon as they bring the contract, the process bégins.

In light of counsel’s statements, we find that Citizens has waived its option under section 3.b.5(e) of the insurance policy to tender the policy limits in lieu of paying in excess of those limits to complete the repairs. Accordingly, we affirm the final judgment but remand with instructions to. enter a corrected order reflecting that, when Ringelman provides Citizens with a signed contract .to complete the necessary repairs, Citizens shall pay that amount instead of tendering the policy limits.

AFFIRMED and REMANDED with Instructions.

TORPY, WALLIS and LAMBERT, JJ., concur.

      . In the interim, Citizens provided Ringelman with a check for $12,827.23 to repair the cosmetic damage to the property,

      . Case law supports the proposition that counsel’s representations during oral argument are binding. See Freeman v. BellSouth Telecomms., Inc., 954 So.2d 45, 46 (Fla. 1st DCA 2007) ("At oral argument, BellSouth stipulated that if this court were to reverse on appeal, BellSouth would abide by the original jury verdict and abandon its motion for remittitur.”); Sound Builders of St. Petersburg, Inc. v. Hanlon, 439 So.2d 276, 276 (Fla. 2d DCA 1983) (“At oral argument, counsel for both parties stipulated that 'one of the final judgments should be stricken.”); Renfroe v. Renfroe, 326 So.2d 211, 211 (Fla. 4th DCA 1976) ("On oral argument before the court, counsel for the respective parties stipulated that such payments were to be made weekly. Accordingly the final judgment is modified to this effect”).


text:
    Sephiomar MORALES, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    CASE NO. 1D17 2916
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Sephiomar Morales, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


author: MORRIS, Judge.

text:
    Joseph CUSHMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1267
    District Court of Appeal of Florida, Second District.
    Opinion filed September 27, 2017

      Howard L. Dimmig, II, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Joseph Cushman appeals his convictions after a jury trial for two counts of sexual battery on a child under twelve and two counts of battery. He challenges the trial court’s denial of a motion to suppress statements he made during an interview with law enforcement; arguing that the interview was custodial' and' that he was not read his Miranda rights. We conclude that the initial portion of the interview was not.custodial but that the interview turned custodial and that the trial court therefore erred in failing to suppress the statements Cushman made after that point because the detective failed to. advise him of his Miranda rights. Accordingly, we reverse his convictions.

I. Background

A. Motion to suppress

Prior to trial, Cushman filed a motion to suppress a recorded statement taken by the Polk County Sheriffs Office during an interview at a sheriffs substation. He argued that his statement was not voluntarily made and that it was taken in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, section 16, of the Florida Constitution.

At the suppression hearing, the State presented the testimony of law enforcement officers who responded to the home of the two child victims, J.S. and J,V. The responding deputy testified that the victims’ mother had learned of the victims’ allegations against Cushman. The deputy made contact with an investigator with the Department of Children and Families (DCF) and a detective. While he waited for the detective to arrive, the deputy told Cushman that he could stand next to the deputy’s patrol vehicle, but the deputy never told Cushman that he had to stand next to or sit in the vehicle. At one-point, the deputy offered that Cushman could sit in the ear and Cushman sat in the car with the door open, Cushman was permitted to move about freely and exited the car to smoke a cigarette, The deputy did not tell Cushman that he was. under arrest or that he was not free to leave, and the deputy did not handcuff Cushman. The deputy did not speak to Cushman about the investigation or make him any promises. After the detective arrived and spoke with Cushman, the deputy gave Cushman a ride to the substation. Cushman rode in the back because the deputy’s training officer rode in the front passenger seat. During the ride and at the substation, the deputy never spoke to Cushman about the investigation or made him any promises and never told Cushman that he was under arrest or that he was not free to leave. During the ride, he and Cushman had a normal conversation about Cushman wanting to become a police officer at one point in his life and about hunting or farming. Once they arrived at the substation, the deputy did not handcuff Cushman and the deputy told Cushman that he could follow him into the substation. The detective then escorted Cushman to an interview room; a card was necessary to enter through a secured door, but a card was not necessary to exit. Cushman could have exited on his own. It was approximately a couple of hours from the time the deputy made contact with Cushman to the time that he drove him to the substation. The deputy never raised his- voice or displayed his weapon to Cush-man.'

The detective testified that he responded to the victims’ house and was briefed by the deputy. The detective made contact with Cushman, who was sitting in the deputy’s patrol car, to see if he was “okay to hang out” and to address any- concerns that Cushman may have had. The detective did not tell Cushman that he was under arrest, that he was not free to leave, or that he had to stay in the vehicle. Cushman was not handcuffed.

After the detective spoke with the victims and their mother, he made “sure [Cushman] didn’t have anything [they] needed to take care of’ and the detective requested Cushman to go with him to the substation for an interview. The detective' “told him [that] he did not have to come,” that “it was of his own free will,” that “even though he’s in the back of the patrol car[,] he’s still free to go,” and that “[h]e can go at any time.” The detective would have told him that he was not under arrest and that he was not being detained. The detective told Cushman that the .officers could take Cushman home if he did not want to go to the substation. Cushman agreed to go to the substation.

When they arrived at the substation, the detective walked with Cushman to the interview room. Cushman was not handcuffed at the substation. The detective did not tell Cushman he was not free to leave or that he was under arrest. The detective did not tell Cushman that he did not need to speak with the detective, but the detective did tell Cushman at least three times that he was free to leave if he did not want to speak with the detective. The detective did not make any promises to Cushman and did not tell him that he would not be arrested. The detective believed that Cush-man answered the questions appropriately and did not have difficulty understanding. The detective recorded his interview with Cushman, which lasted' about forty-five minutes. The detective never displayed his weapon or raised his voice to Cushman.

The detective believéd that the interview was noncustodial and that Cushman was not in custody until he was arrested after the interview concluded. The detective stated that after speaking to the victims, their mother, and the investigator, Cush-man was a suspect. The purpose of the interview was “to get the truth” and “[i]f that’s a- confession, 'that’s a confession.” The detective admitted that if Cushman had admitted to something that amounted to a lewd act, Cushman would have been arrested. But the detective did not arrest Cushman until the' interview was over. Cushman was not read his Miranda rights until the end of the interview because the detective considered the interview to' be noncustodial. Cushman never'told the dé-tective that he'wanted to go home.

The trial court considered the audio recording of the interview. A transcript of the recording is in our record. At the beginning of the interview, the detective confirmed that Cushman was there of his own free will, that he understood he was not being arrested or detained, and that he understood he did not have to talk to the detective or answer any questions. The detective told Cushman that he just wanted to get to the truth and they could “just go on from there” and “put the whole thing behind ús.” The detective told Cush-man that the detective had heard Cush-man wanted to be a “cop,” and Cushman said he wanted to help citizens. They talked about Cushman hunting. The detective asked Cushman if he knew what was going on, to which Cushman answered affirmatively, and the detective told Cush-man that anybody who is pro-law enforcement “is part of the family” and that the detective needed to get to the truth. The detective said that “[t]here ain’t no reason why this has got to haunt us for the rest of our lives or anything like that.”

Cushman stated that another officer had told him that Cushman “pulled [the victims’] pants down,” but Cushman denied doing so. The detective told Cushman that the detective would keep to himself what the victims had told the detective but that the detective just wanted the truth from Cushman. The detective said that Cush-man had a future ahead of him and that he would do everything he could to help Cushman in the future, but what the victims had told the detective was worse than what Cushman was admitting. The detective suggested that there would be physical evidence of a sexual activity and that after further interviews of the children, the truth would come out. He again mentioned the “law enforcement family,” that all people make mistakes, and that the family needs to be “honest with each other.” The detective reiterated that a mistake would not end Cushman’s life. Cushman said that the victims had been taking a bath and “messing with each other,” but Cushman denied doing anything.

The detective again mentioned that people make mistakes and that he did not believe that Cushman was a monster. Cushman asked: “This stays with /all, right? It doesn’t get out to nobody else?” The detective could not guarantee that but said he would not go back and tell anybody in the family. Cushman said he never touched J.V., but when the detective asked about J.S., Cushman said he made a mistake. • Cushman admitted touching J.S.’s bottom with his hand.

The detective then asked if Cushman had touched J.S.’s bottom with his penis or tried to put his penis in J.S.’s bottom, and Cushman denied it. When the detective persisted in his questioning, Cushman remained quiet. Cushman finally said that the questioning was making him uncomfortable and made him feel like a monster. The detective then urged Cushman to talk about it because he would feel better, and Cushman said, “I’m probably going to go [to] jail now.” The detective asked Cush-man whether going to jail was a big deal or whether it was more important to be a good person. The following exchange then occurred:

CUSHMAN: Are you going to take me to jail tonight?
DETECTIVE: Huh?
CUSHMAN: Are you going to take me to jail tonight?
DETECTIVE: I’m not.
CUSHMAN: They are?
DETECTIVE: I' don’t know. We’ve got to get to the truth first, though. Because this is the thing, Joey, the—what I am being told is worse than what you’re telling me. It’s worse than everything that I’m asking you.
CUSHMAN: They told me they weren’t taking me to jail tonight.
DETECTIVE: Okay. Let’s go back to what happened. Let’s talk about what happened.

The detective then continued to ask Cushman about what he had done to the victims. Cushman admitted to committing sexual batteries against the victims. During his,confession, Cushman stated that “if they do take me to jail, I’m going to be in there for a while.” At the end of the interview, the detective told Cushman that he was “going to have to go to jail tonight because of this.” Cushman then told the detective that he had lied and that he had never touched the two victims.

At the suppression hearing, the defense presented the testimony of Cushman’s mother. She testified that Cushman suffered from seizures as a child and was diagnosed with ADHD, bipolar disorder, and a learning disability. He received counseling throughout his life, and he attempted to commit suicide at age fifteen. He was in special education classes from second grade until tenth grade and was made fun of throughout his life. She said that even though Cushman referred to an uncle in Tennessee with cancer during his interview with police, he has no uncle in Tennessee. He has a hard time carrying on a conversation, and he believes whatever is happening on television is happening in his own life. On the • day of his arrest, Cush-man called her and he was frantic. She drove to the victims’ house to try to see Cushman, but the officers would not let her see him. She stated that the officer threatened to “tase” her if she walked closer to Cushman and told her that she needed to leave. She observed Cushman standing by the patrol car but was not allowed to speak to him. After his arrest, he was found to be incompetent and received competency training for about a year.

Cushman testified that he always had a hard time in school and that he was constantly teased. Prior to this, he had never been questioned by the police. On the day of his interview, a deputy told him to stand by the car and wait on the other officers. He stood there for about twenty minutes until the other officers arrived. They told him to be calm and wait. He kept asking what was going on and they would not tell him. He smoked a cigarette with the first deputy. The detective told Cushman that they were going to take him for an interview but they would take him home if wanted to go home. Cushman stated that during the ride, he asked the officers twice to take him home but they ignored him. Cushman did not want to go to the substation. When the detective came into the interview room, Cushman told him that he wanted to go home but the detective told him that he could not leave at that point. Cushman also stated that he asked the detective two more times if he could leave, and the detective told him the same thing. Cushman felt that he could not leave at that point and that if he had walked out, they would have handcuffed him.

After the presentation of the evidence, the State argued that under the factors in Ramirez v. State, 739 So.2d 568 (Fla. 1999), the interview was not custodial. The State .also argued that the statements made by Cushman were voluntary. Cush-man contended that the interview was custodial and that the tactics used by the detective weighed in favor of a finding of custody and also a finding that the statements were involuntary. The trial court entered an order denying Cushman’s motion to suppress, concluding that Cushman was not in custody during the interview and that his statements were voluntarily made. The trial court credited the testimony of the officers over Cushman’s testimony.

B. Trial proceedings

At trial, the State presented the testimony of the two child victims, Their mother also testified that Cushman was living with her and her children in 2011 when DCF investigators came to speak to her older children on an unrelated matter and learned of. the allegations against Cush-man. The DCF investigator testified that she interviewed the first victim, J.S., at his house. She testified to J.S.’s description of the acts committed by Cushman. The investigator was present when the detective attempted to interview J.V. later, but J.V. did not make any disclosures to the detective. The child protection team (CPT) case coordinator testified that she interviewed J.S. and that J.S. disclosed that he had been sexually abused by Cushman. The video of her interview with J.S, was published for the jury. J.S. also described to the case coordinator the act that Cushman committed against J.V. J.S. said that it happened on two different days.

The detective testified that he interviewed J.S. and that J.S. described the act that Cushman committed against J.S. “two times.” A recording of the detective’s interview with J.S. was playéd for the jury. The detective also interviewed J.V., but J.V. did not make any disclosures to the detective. The detective witnessed the CPT interview of J.V. during which J.V. did not make any disclosures. The children were not taken for medical examinations. The detective’s interview of Cushman was played for the jury. ¡

Cushman testified in his defense. He denied touching the victims in any kind of sexual manner. He said that he did not get along with the children because they were “constantly being bad” and he was having to discipline them. As he walked by a window, he heard them tell- the investigator pt their house that he had touched them. He was shocked and-upset and ran inside to tell their mother that he did not do it.

The trial court granted a judgment of acquittal on one of the molestation counts, as to J.V. The jury found Cushman guilty of :a sexual battery and a battery as to each victim, with the batteries being lesser included offenses of two sexual battery charges. The jury found Cushman not guilty of the single molestation count as to J.S.

II. Analysis

Cushman argues that the trial court erred in denying his motion to suppress because he was subjected to a custodial interrogation' without the benefit of Miranda warnings. In its order denying Cushman’s motion -to suppress, the trial court addressed the factors set forth in Ramirez, 739 So.2d at 574, and concluded that “Cushman was not in custody during his'interview” and that “Miranda was not required.”

Miranda warnings are required when a suspect is the subject of a custodial interrogation. State v. Pitts, 936 So.2d 1111, 1123 (Fla. 2d DCA 2006) (quoting Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “Custody for purposes of Miranda encompasses not only formal arrest, but any restraint on freedom of movement of the degree associated with formal arrest.” Ramirez, 739 So.2d at 573. In Ramirez, the supreme court adopted a four-factor test that

provides guidance in making the determination whether a reasonable person in the suspect’s position would consider himself in custody: (1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Id. at 574.

This “test must be'understood as simply pointing to components in the totality of circumstances surrounding an interrogation.” Pitts, 936 So.2d at 1124. “No factor .can be considered in isolation. The whole context must be considered,” Id. “The focus of the, inquiry must remain on whether a reasonable person in the suspect’s position—given all the relevant circumstances—would have understood himself to be in custody.” Id.; see also Ramirez, 739 So.2d at 573 (“The proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in the suspect’s position would have perceived the situation.” (quoting Davis v. State, 698 So.2d 1182, 1188 (Fla. 1997))). “Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.” Bell v. State, 201 So.3d 1267, 1278 (Fla. 2d DCA 2016) (quoting Oregon v. Elstad, 470 U.S. 298, 306-07, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)),

We first consider the manner in which the police summoned Cushman for questioning. Cushman was summoned for an interview during the middle of the day. While investigators were speaking with the mother and the child victims at the house, a deputy stood outside with Cushman. The deputy told Cushman that Cushman could stand near or sit in the patrol car. The deputy never told Cushman that he had to sit in the car; Cushman chose to sit in the car. Cushman moved about freely, exiting the car to smoke.

When the detective arrived at the house, he asked Cushman if Cushman was “okay to hang out.” After the detective spoke with the mother and child victims, the detective asked Cushman to come to the substation for an interview. The detective told Cushman’that “he did not have to come”' and that “it was of his own free will.” The detective told Cushman that “even though he’s in the back of a patrol car[,] he’s still free to go” and “can go at any time.” The detective stated ’ that he would have told Cushman again that he was not under'arrest, that he'was not being detained, and that if he did not want to come, he could be taken home. Cushman agreed to go to the substation.

, Cushman rode in the back seat of the deputy’s , car because the deputy’s training officer rode in the front passenger seat. Cushman was not handcuffed. The deputy and Cushman had a .conservation in normal, tone.'When they arrived at the substation, the deputy walked Cushman into the substation and the detective then walked Cushman .to- an interview room. He was not handcuffed or told he could not leave. The transcript of the interview shows that the detective confirmed with Cushman that Cushman was at the station of his own free will and that Cushman understood he was not under arrest and that he did not have to speak to the officers. ,

The law supports the trial, court’s conclusion that this factor weighs against a finding of custody. See Hunter v. State, 8 So.3d 1052, 1062 (Fla. 2008) (concluding that defendant was not in custody where he was ordered .out of the house along with other people,“was told to put his hands on his head, and then was directed to sit on the sidewalk”; defendant was “asked if he would go with the police to answer some questions”; defendant sat in back of patrol car with a detective; and when defendant arrived at the station, he was.'told he was free to leave, that he was not under arrest, and that he could have a ride home); Pitts, 936 So.2d at 1117, 1125 (holding that despite the early hour of the police visit (4 a.m.), this factor weighed against a finding of custody where the police arrived at defendant’s apartment, asked his sister to wake him up, and asked if he would mind coming to the substation; defendant was allowed to get dressed before leaving; and defendant was not subject to any physical restraint and rode in the front seat of the police vehicle); Cillo v. State, 849 So.2d 353, 355 (Fla. 2d DCA 2003) (holding that the first Ramirez factor did not indicate that defendant was in custody where defendant “was never told that he had to go to the sheriffs office,” “he never indicated that he did not want to go,” and he agreed during the interview that he voluntarily went with police to the station).

Cushman may have felt he was being watched or supervised by the deputy at the house, but when the detective arrived, the detective asked if Cushman was okay to hangout. Cf. Killian v. State, 761 So.2d 1210, 1212-14 (Fla. 2d DCA 2000) (holding that the defendant was in custody where he was standing outside of his house for a majority of the time under the watchful eye of a police officer while a search warrant was being executed inside the house by four officers, the defendant asked permission to get a drink inside the home, the defendant was never informed he was free to leave, and the defendant was confronted with the allegations of the child victim). This should have indicated- to a reasonable person that his freedom was not being restrained. And any feeling of. restraint Cushman may have felt at the house would have been dispelled when the detective asked him to come to the substation, told him he did not have to do so, told him that he was not under arrest, and told him that he could go home.

Next, we turn to the extent to which the suspect is confronted with evidence of guilt. “A reasonable person understands that the police ordinarily will not set free a suspect when there is evidence ‘strongly suggesting’ that the person is guilty of a serious crime.” Pitts, 936 So.2d at 1128. “That does not mean that whenever a suspect is confronted with some incriminating evidence, the suspect is in custody.for purposes of Miranda.” Id.

The trial court found that during the interview, the detective refused to divulge to Cushman what the victims had told the detective. The trial court also found' that the detective “did state that there could be more evidence in the form of physical evidence after an examination of the [victims]” but that Cushman was not “told that any physical evidence had been found.” These findings are supported by the record. However, a review of the interview shows that at the beginning of the interview, Cushman indicated that he was aware of the nature of the allegations against him: “Well, what the officer told me is that I pulled [the victims’] pants down and that he—you know, and I didn’t.” Even though Cushman knew of this accusation against him, this does not in itself mean that he believed himself to be in custody, especially when he had just been repeatedly told by the detective moments before that he was not under arrest. See Pitts, 936 So.2d at 1128 (“The significance of this factor turns on the strength of the evidence as understood by a reasonable person in the suspect’s position as well as the nature of the offense. If a reasonable person in the suspect’s position would understand that the police have probable cause to arrest the suspect for a serious crime such as murder or, kidnapping, that circumstance militates strongly toward the conclusion that the suspect is in custody.” (footnote omitted)); Cillo, 849 So.2d at 356 (holding that the fact that defendant had been informed “of the victim’s allegations” of a'lewd and lascivious act did not alone support a conclusion that he was in custody).

Next, we consider whether Cushman was informed he was free to leave. “[A] suspect need not be advised that he or she is free to leave in order for the court to determine that the suspect was not in custody.” State v. Shell, 932 So.2d 628, 633 (Fla. 2d DCA 2006) (citing Noe v. State, 586 So.2d 371, 373, 381 (Fla. 1st DCA 1991)). But “it is certainly true that a suspect who has been advised that he is free to leave is less likely to be deemed to be in custody than a suspect who has not been so advised.” Pitts, 936 So.2d at 1125.

The trial court .found that Cushman “was told several times that he was free to go.” The detective testified that he told Cushman that he was free to go and that he did not have to go to the substation; the detective said that he told Cushman at least three times that he was free to leave if he did not want to talk. At the beginning of the recorded interview, the detective told Cushman that he was not under arrest and that he did not have to talk with the detective if he did not want to. Therefore, this factor weighs against a finding of custody. See Hunter, 8 So.3d at 1062 (concluding that defendant was not in custody where he was asked to go to the station to answer some questions, he was told he did not have to go with police, and he was told at the station that he was free to leave and that he was not under’ arrest); Cillo, 849 So.2d at 356 (holding that where defendant was told “that he was not under arrest and that he could leave at any time[,] ... the final factor in Ramirez was not indicative of a custodial interrogation”).

Last, we consider the purpose, place, and manner of the interrogation. While “[m]ost custodial interrogations take place in a police station, and a defendant’s presence in a station while subjected to questioning undoubtedly can have a bearing on how a reasonable person in the defendant’s situation views his status,” Pitts, 936 So.2d at 1126, “mere questioning at the police station does not establish custody,” State v. Thompson, 193 So.3d 916, 921 (Fla. 2d DCA 2016), review denied, No. SC16-1029, 2016 WL 6602417 (Fla. Nov. 8, 2016):

• The trial court noted that the interview took place in a police station interview room, but the trial court did not make a finding regarding the purpose of the interview. While the purpose of the interview may have been to obtain a confession from Cushman, it was also likely that the purpose was to find out if there was any substance to the victims’ allegations against him and whether a crime occurred. “[L]aw enforcement suspicion, by itself, does not turn a consensual encounter into a custodial interrogation.” Thompson, 193 So.3d at 921; see Monroe v. State, 148 So.3d 850, 856 (Fla. 1st DCA 2014) (explaining that where defendant did not have knowledge that agent possessed a warrant for his arrest prior to interview, “the fact that the agent already had a warrant for [defendant's arrest and hoped to obtain a confession does not conclusively establish that [defendant] was in custody for Miranda purposes” (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984))), remanded on other grounds, 191 So.3d 395 (Fla. 2016).

The manner of interrogation also weighs against a finding of custody. The record supports the trial court’s findings that Cushman “was never made any promises or threats” and that Cushman “easily followed the conversation” and “answered appropriately.” The detective started the interview by confirming with Cushman that Cushman was there of his own free will. The detective was not forceful or intimidating and conducted thé interview in a conversational tone. See Cillo, 849 So.2d at 355-56 (holding that manner of interrogation was not coercive where “interview was conversatiónal,” “no threats or promises were made,” defendant was composed and reasonably responsive in his verbal answers, and defendant was not “intimidated or subdued by the presence of the detectives or the questions being asked”); Monroe, 148 So.3d at 856 (noting that the agent “.conducted the interrogation in a conversational tone free of threats. or promises” and “[although [the agent] was persistent, opinionated, and orally confrontational, he did not use coercive measures to elicit information from [defendant] during the relatively brief interview”). Further, even if the atmosphere was coercive, “a noncustodial situation is not converted to a custodial one simply because, in the absence of any formal arrest or restraint on freedom of movement, the interview took place in a coercive atmosphere.” Cillo, 849 So.2d at 356 (citing California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)).

While the totality of the circumstances leads to the conclusion that the initial portion of the interview of Cushman was not custodial, we cannot reach the same conclusion regarding the entire interview. Fifteen pages into the transcript of the interview, Cushman admitted that he touched J.S. on the child’s “butt” with his (Cushman’s) hand. He admitted that he “rubbed [J.S.’s] butt” in the bathroom. The detective urged Cushman to- tell him the truth and suggested that there might be some type of evidence left behind. The interview continued and resulted in Cush-man making further admissions that sexual batteries had occurred.

“What begins as a noncustodial interrogation accordingly may be transformed, into a custodial interrogation by a confession that the suspect utters during the interrogation.” Pitts, 936 So.2d at 1134; see also Roman v. State, 475 So.2d 1228, 1231-32 (Fla. 1985) (“Indeed, occasions would be rare when a suspect would confess to committing a murder and then be allowed to leave. Certainly the noncustodial atmosphere leading up tó a confession and probable cause would thereby be expected to be converted to a custodial one.”). “A suspect’s confession of wrongdoing may result in a situation which a reasonable person would conclude is custodial.” Pitts, 936 So.2d at 1134; see also Bell, 201 So.3d at 1274 (“Because the circumstances of a suspect’s encounter with the police are frequently fluid, the nature of such an encounter- may change- over time from noncustodial to custodial.”). Based on the totality of the circumstances discussed above, Cushman was not-in custody during the initial portion of the interview, but once Cushman admitted to committing a sex crime, i,e., rubbing one of the victims on the bottom, a reasonable person in his position would believe that he was no longer free to leave. See Pitts, 936 So.2d at 1134 (holding that once defendant confessed to a serious crime by admitting to holding a gun on the two victims, “a reasonable person in [his] situation would have understood that- he would not be allowed to go free” and that “[a]t that point, the interrogation became custodial and the protections afforded by Miranda became applicable”). This is supported by Cush-man’s own statements; after he-made the initial admission to touching J.S. on the bottom, Cushman indicated that he believed he would now be going to jail. Cush-man asked the detective twice if he would be going to jail, and the detective avoided answering him., During his testimony at the suppression hearing, the detective confirmed that while he did not think he would have arrested Cushman that night if Cushman had not talked to him, the detective would have arrested Cushman once Cushman had made a confession. He stated that he would have arrested Cushman even if Cushman had only confessed to a lewd act.

Once the interrogation became custodial, Cushman was entitled to be advised of his Miranda rights. The statements made by Cushman after this point should have been suppressed. These subsequent statements were extremely incriminating because in them Cushman admitted to committing sexual batteries against the victims; therefore, it cannot' be said that the trial court’s error in failing to suppress these subsequent' statements was harmless. See Bell, 201 So.3d at 1281 (holding that trial court erred in denying defendant’s motion to suppress because defendant had not been given Miranda warnings in a custodial interrogation and because the error was not harmless).

Cushman also contends on appeal that the trial court'erred in denying his motion to suppress because his statements were not voluntary. See DeConingh v. State, 433 So.2d 501 (Fla. 1983); Grasle v. State, 779 So.2d 334, 336 (Fla. 2d DCA 2000). We conclude that the statements not requiring suppression—that is, the statements made up until the point at which the interview turned custodial—were voluntary. See Grasle, 779 So.2d at 336 (“The test for voluntariness asks whether, under the totality of circumstances, the confession was a product of coercive police conduct.”). Even though the defense presented evidence that Cushman had mental health issues and that he struggled in school and socially in life, he was able to understand the detective’s questions and carry on a detailed conversation with the detective. The detective did not make any promises to Cushman and urged Cushman to tell the truth. See Garcia v. State, 60 So.3d 1097, 1099 (Fla. 4th DCA 2011) (“A confession is not involuntary if officers do nothing more than ‘encourage or request that person to tell the truth.’” (quoting Chambers v. State, 965 So.2d 376, 378 (Fla. 4th DCA 2007)); cf. Grasle, 779 So.2d at 336-37 (“Most significant to our analysis here is the precept that a confession cannot be freely and voluntarily given if it has been elicited by the direct or implied promise of: leniency.”). The detective appealed to Cushman’s interest in law enforcement, but he never said anything that would have misled Cushman into believing that if he told the truth and admitted to the touching, he would still be able to have a future in law enforcement or that he would be able to walk away free. In addition, at the start of the interview, Cush-man had been told that he did not have to answer questions and that he was free to leave, and it was soon thereafter that he made the admission that he touched J.S. inappropriately.

In conclusion, we reverse Cushman’s convictions and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and BLACK, JJ., Concur.

      . He was sentenced to concurrent life sentences on the sexual batteries and to 365 days in jail on the batteries.

      . Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Due to the legal issues involved in this case, it is necessary to recount the conversation between the detective and Cushman in which details of the sexual offenses were revealed. The detective asked Cushman if he put his penis in J.S.’s bottom, and Cushman finally admitted that his penis came into contact with the child's bottom. After more questioning, Cushman admitted that he tried to put it into J.S.’s bottom but that it would not fit and that he also touched J.V.’s bottom with his hand. Cushman gave more details about how he touched J.S.’s bottom. He also stated that the "exact same thing” “happened a day later again” and that he also rubbed J.V.’s anus with his finger. He then admitted that he did the same thing to J.V. that he did to J.S.

      . The first victim, J.S., was ten years old at the time of trial. The second victim, J.V., was nine years old at the time of trial. They both testified that Cushman put his "front private part" in their "back private part[s].”


text:
    Josiah HATHAWAY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4797
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Steven J. Parton, Mandell Law, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Josiah Hathaway, appeals his convictions and sentences for attempted second-degree murder and carrying a concealed firearm. Appellant raises ten issues on appeal, only one of which merits a brief discussion. Appellant contends that the trial court erred in denying his motion in limine, wherein he argued that his admission that the firearm at issue was concealed in his waistband should be excluded from evidence because the State could not establish the corpus delicti of the concealment offense without his admission. After reviewing the record and considering the State’s evidence, we reject both Appellant’s argument and the State’s “agreement” on appeal that it failed to present substantial evidence that the offense of concealment occurred absent Appellant’s admission. See Acoff v. State, 180 So.3d 185, 187-88 (Fla. 1st DCA 2015) (“The state has a burden to bring forth ‘substantial evidence’ tending to show the commission of the charged crime. This standard does not require the proof to be uncontra-dicted or overwhelming, but it must at least show the existence of each element of the crime (Emphasis added) (Citation omitted)); see also Tanzi v. State, 964 So.2d 106, 116 (Fla. 2007) (explaining that it is within the trial court’s province to determine the sufficiency of the proof of the corpus delicti and holding that the trial court did hot abuse its discretion in finding the corpus delicti and in admitting the appellant’s confession); Black v. State, 120 So.3d 654, 655 (Fla. 1st DCA 2013) (noting that an appellate court must defer to a trial court’s, ruling on a motion in limine absent an abuse of discretion). In reaching our conclusion, we find Appellant’s reliance upon several cases addressing the issue of corpus delicti in the context of a motion for judgment of acquittal unavailing, especially given Appellant’s concession on appeal that the trial court did not err in denying his motion for judgment of acquittal on the concealment offense. We, therefore, affirm Appellant’s convictions and sentences.

AFFIRMED.

LEWIS, RAY, and JAY, JJ., CONCUR.

       Notwithstanding its "agreement,” the State ultimately argues that reversal is not warranted on this issue because Appellant’s admission was relevant to the issue of premeditation for the charged crime of attempted first-degree murder. Given our determination on Appellant’s corpus delicti contention, we need not address this alternative argument.


text:
    Leonard LARREA and Norma Larrea, Appellants, v. NATIONSTAR MORTGAGE, LLC, Philip D. Aguirre, Norma M. Aguirre, Bank of America, N.A., Brevard County, Florida and Harbour Royale Condominium Association, Appellees.
    Case No. 5D16-2931
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
    Rehearing/Rehearing En Banc Denied November 2, 2017
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller, of Aker-man, LLP, Fort Lauderdale, and Eric M. Levine, of Akerman LLP, West Palm Beach, for Appellee, Nationstar Mortgage, LLC.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See Caraccia v. U.S. Bank, N.A., 185 So.3d 1277, 1279 (Fla. 4th DCA 2016) (holding even where third party has physical possession of note, so' long as plaintiff had power to exercise control over it, then plaintiff had constructive possession of note).

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


author: WALLACE, Judge.

text:
    William John MONTEZ, DOC #166014, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4525
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017.

      William John Montez, pro se.
   WALLACE, Judge.

William Montez appeals from the post-conviction court’s summary denial of his second motion for postconviction DNA testing, which was filed under Florida Rule of Criminal Procedure 3.853. Because the postconviction court failed to make a required finding that there was reliable proof to establish the authettticity of the alleged murder weapon that was submitted for DNA testing, we reverse and' remand for an evidentiary hearing to determine the item’s authenticity.

The Factual and Procedural Background

Because we have previously discussed at length the facts of. this case, we will not recite them in detail here. See Montez v. State, 86 So.3d 1243 (Fla. 2d DCA 2012); However, for purposes of this opinion, it suffices to say that in April 2000, Mr. Montez was found ‘ guilty of first-degree murder and sentenced to life in prison. Over ten years later, Mr. Montez filed his initial motion for'postconviction DNA testing under rule 3.853. Mr. Montez requested DNA testing of the murder weapon, a black nylon stocking, which was found tied in a knot around the victim’s neck. This black nylon stocking was admitted into evidence as State’s Exhibit #5 at trial. The postconviction court denied the motion, finding that Mr. Montez failed to demonstrate a reasonable probability that the requested DNA testing would lead to his acquittal. On appeal, this court reversed the postconviction court’s summary denial of Mr. Montez’s motion and remanded for an evidentiary hearing. See Montez, 86 So.3d at 1245.

Upon remand, the postconvietion court entered an order granting Mr. Montez’s motion in November 2012. In addition to finding that the alleged murder weapon still existed and that there was a reasonable probability that the defendant could be acquitted based upon .the results of DNA testing of the alleged murder weapon, the postconviction court found, in pertinent part, as follows:

The Court hereby finds that DNA testing of the evidence (State’s Exhibit # 5), the alleged murder weapon, likely would be admissible at trial based upon the establishment of the chain of custody maintained by law enforcement and the Clerk of the Court, as the evidence custodian. There exists reasonable proof to establish that any such DNA testing, performed by the Florida Department of Law Enforcement (FDLE) would be authentic and admissible at future proceedings.

After granting the motion, the postconviction court entered another order releasing the alleged murder weapon to the care, custody, and control of the Tampa Police Department (TPD) for transport to FDLE. However, when the alleged murder weapon was handed over to TPD for transport, the item was apparently found in an open, unsealed paper bag. As a result, the unsealed paper bag containing the item was placed in a manila envelope, which was sealed and given to FDLE for testing.

After FDLE completed its examination of the álleged murder weapon, the post-conviction court held an eyidentiary hearing regarding the written results of the DNA testing. Over Mr. Montez’s objections that there were chain of custody and contamination problems, a FDLE technician testified that she found the DNA of both Mr. Montez and the victim on the alleged murder weapon. After the hearing concluded, the pqstconviction court entered a “notice of compliance” with this court’s mandate.' Consequently, Mr. Montez filed a petition for writ of mandamus in this court to compel the circuit court to issue a final order on the postconviction DNA proceedings. We dismissed the petition for Mr. Montez “to file a separate motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853.” Montez v. State, 192 So.3d 53 (Fla. 2d DCA 2015) (unpublished disposition).

Upon this court’s dismissal of his petition, Mr. Montez filed a sécond motion for postconviction DNA testing. In his motion, Mr. Montez requested the postconviction court to conduct a DNA test of the actual murder weapon. Although he acknowledged that a black stocking had been the subject of prior DNA testing, Mr. Montez asserted that the postconviction court failed to make the requisite finding that the item containing the tested DNA was authentic. In particular, Mr. Montez alleged that FDLE tested the wrong nylon stocking because it was most likely mishandled or replaced with an identical stocking. He further alleged that even if the actual murder weapon was tested, the item was contaminated due to its mishandling and the fact that it was found in an open, unsealed bag.

After finding that Mr. Montez’s motion for postconviction DNA testing was facially sufficient and then ordering the State to respond to it, the postconviction court summarily denied the motion. It reasoned that because the alleged murder weapon had “already been tested for DNA” and the test results matched the DNA profiles of both Mr. Montez and the victim, no further testing was required. It further found that FDLE did not test the wrong item because, at trial, a crime scene technician identified State’s Exhibit # 5 as the stocking that was tied around the victim’s neck. Accordingly, the postconviction court concluded that because State’s Exhibit # 5 was released for DNA testing in 2012, the correct item was tested.

Mr. Montez filed a motion for rehearing. In his motion, he argued that the postcon-viction court not only relied improperly upon the inconclusive testimony of certain witnesses but also failed to address the “serious chain of custody and laboratory procedural errors.” The postconviction court denied the motion, finding that even if a different stocking had been substituted in the place of State’s Exhibit #5, it “could not order DNA testing of an item that cannot be found.” The postconviction court further reasoned that even if the original item had been replaced and then later found and tested for DNA evidence, it would not be admissible in evidence at a future hearing because the circumstances were indicative of probable tampering. This appeal followed. Mr. Montez makes the same arguments on appeal.

Discussion

When a postconviction court enters an order on a motion for postconviction DNA testing under rule 3.853, the court “must make the findings outlined in rule 3.853(c)(5).” Montez, 86 So.3d at 1244. Specifically, the postconviction court must find:

(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

Fla. R. Crim. P. 3.853(c)(5) (emphasis added); see also Montez, 86 So.3d at 1244.

Here, as the rule clearly provides, the postconviction court was required to make the above three findings when it ruled on Mr. Montez’s first rule 3.853 motion. Although the postconviction court made the first and- third findings, it failed to make the second finding. More specifically, the postconviction court failed to determine whether reliable proof existed to establish the authenticity of the black nylon stocking that was submitted for DNA testing, i.e., it was the alleged murder weapon. Instead, the postconviction court found that “there existed reasonable proof to establish that any such DNA testing, performed by [FDLE] would be authentic and admissible at future proceedings.” To be sure, while rule 3.853 requires the post-conviction court to find that any DNA testing of the evidence would be admissible, it also requires the postconvietion court to find that reliable proof exists to establish that the item containing the tested DNA is authentic. Here, no such proof was introduced into evidence at the hearing. Indeed, the postconvietion court’s reliance upon the trial testimony of the crime scene technician was not sufficient to establish reliable proof of the item’s authenticity because the testimony did not account for the twelve-year gap between the time of trial and the time that the item was tested. Nor did the testimony account for the discovery of the item in an allegedly open, unsealed paper bag before it was sent to FDLE for testing. Accordingly, because the postconvietion court failed to determine whether the tested stocking was authentic, the postconvietion court erred in relying upon the DNA results of an unauthenticated item to deny Mr. Montez’s second motion.

We express no opinion on whether the nylon stocking that was submitted for testing was or was not the actual murder weapon. We also express no opinion on whether the State will be required to submit this item for further testing or a different item for initial testing. Instead, we hold only that based on the limited record before us, an evidentiary hearing is necessary—as this court discussed in our 2012 opinion—to determine whether the tested nylon stocking was not contaminated and is what the State claims it is, i.e., the murder weapon that was tied around the victim’s neck. See Swafford v. State, 946 So.2d 1060, 1061 (Fla. 2006) (requiring the postconvietion court to “enter an order making findings as to whether the evidence which was tested is authentic, has been contaminated, or such other findings in respect to the tested evidence as the circuit court determines to be appropriate” (quoting Swafford v. State, 871 So.2d 874 (Fla. 2004) (table report of unpublished order))); cf. Espinoza v. State, 13 So.3d 1088, 1090 (Fla. 3d DCA 2009) (discussing Swafford and indicating that where the defendant raises “some specific claim regarding possible contamination of the DNA samples,” the reviewing court may remand the case to the postconvietion court to determine the item’s authenticity, even if the item has already been the subject of DNA testing).

Finally, we note our disagreement with the postconvietion court’s alternative findings on rehearing. The postconvietion court first found that even if a different stocking had been substituted in the place of State’s Exhibit # 5, it “could not order DNA testing of an item that cannot be found.” However, in reaching this conclusion, the postconvietion court erroneously assumed that if an authentic item of evidence is replaced with a substitute, the authentic item cannot be found. Such a conclusion does not follow from the premise. Further, the postconvietion court also erroneously assumed that even if the authentic item had been replaced with a substitute and was later found and tested for DNA evidence, the authentic item would not be admissible at a subsequent hearing because of the probability of tampering. But here again, such a conclusion does not necessarily follow from the premise; one cannot exclude the possibility of a satisfactory explanation for the supposed switch of one item for another.

Therefore, because the postconvietion court erred in failing to determine whether reliable proof exists to establish the authenticity of the black nylon stocking, we reverse the postconvietion court’s order summarily denying Mr. Montez s second rule 3.853 motion. On remand, the trial court shall conduct such further proceedings as may be necessary to make the requisite findings and to enter an appropriate order on the motion.

Reversed and remanded.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur,

      . The nylon stocking appears to have been originally -inventoried as Item # 12 by the Tampa Police Department.

      , At a status hearing, the assistant state attorney informed the court that the alleged murder weapon "had been opened" and "exposed to the .elements.” At a later evidentiary hearing regarding the DNA test results, an FDLE technician testified that when she received the item for testing, it was found in an "unsealed” paper bag.

      . . In support of his allegation that, the murder weapon could have been mishandled or replaced with an identical stocking, Mr. Montez highlighted the TPD Property Record Form, which was dated June 23, 1999. This form apparently indicates that item #12 was placed into the same package with an identical black stocking. Mr. Montez also appeared to argue that the tested nylon stocking was not the actual murder weapon because the tested nylon stocking contained a knot and had hairs in it, whereas State’s Exhibit # 5 allegedly did not have such features.


text:
    Robert W. DIBELLO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4411
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017
    Howard L. Dimmig, II, Public. Defender, and Elisabeth G. Whitmire, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Dibello may have to file a timely, facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 to challenge the voluntary nature of his plea.

SILBERMAN, MORRIS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: SLEET, Judge.

text:
    Abel Alonso HUERTA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3946
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017

      Jorge Leon Chalela, Tampa, for Appellant.
   SLEET, Judge.

•Abel Alonso Huerta appeals the summary denial of his timely amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief as facially insufficient. We reverse the postconviction court’s order and remand for consideration of the motion on its. merits because Huerta’s motion stated a facially sufficient claim for relief under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

To state a facially sufficient claim for postconviction relief, a movant must allege “that counsel’s performance was deficient [and] ... that the deficient performance prejudiced the defense.” Blackwood v. State, 217 So.3d 1146 (Fla. 2d DCA 2017) (alterations in original) (quoting Hernandez v. State, 124 So.3d 757, 762 (Fla. 2013)). In his amended motion, Huerta alleged that his trial counsel failed to warn him thát he would be subject to presumptively mandatory deportation as a result of entering a plea to felony possession of a controlled substance and felony battery. See 8 U.S.C.. § 1227(a)(2)(B)(i) (2013) (“Any alien who at any time after admission has been convicted of a violation of ... any law ... relating to a controlled substance is deportable.”); § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable,”); § 1101(a)(43)(F) (defining an aggravated felony as “a crime of violence ... for which the term of imprisonment [is] at least,.one year" (footnote omitted)); 18 U.S.C. § 16(a) (2013) (defining a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”), Huerta contended that had he known the deportation consequences of entering the plea, he would have instead proceeded to trial.

The postconviction court, denied Huerta’s amended motion as facially insufficient, citing Agent v. State, 19 So.3d 1114, 1115 (Fla. 2d DCA 2009), and Ramirez v. State, 124 So.3d 967, 968 (Fla. 4th DCA 2013), in .support. In Agent, this court explained that the defendant’s postconviction motion was facially insufficient because the defendant failed to allege that he would not have entered his plea but for counsel’s error. 19 So.3d at 1115. Because Huerta alleged that he would not have pleaded but for counsel’s failure to adequately advise him of the deportation consequences, his motion sufficiently alleged prejudice. See Deck v. State, 985 So.2d 1234, 1238 (Fla. 2d DCA 2008) (“[I]n order to satisfy the ‘prejudice’ requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in a case involving a plea, the defendant must allege and prove only that ’there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))).

In Ramirez, the Fourth District affirmed the summary denial of a postconviction motion but did so without prejudice to the defendant’s right to file a facially sufficient motion consistent with Cano v. State, 112 So.3d 646, 648 (Fla. 4th DCA 2013). 124 So.3d at 968. As we recently explained in Blackwood, “Cano is limited to its facts and should not be read to impose an additional evidentiary burden on all defendants asserting ineffective assistance of counsel claims under Padilla.” 217 So.3d at 1146. Huerta alleged that his counsel failed to properly advise him of the presumptively mandatory deportation consequences of his guilty plea under the federal immigration statutes and that but for his counsel’s insufficient advice, he would not have entered the plea. Therefore, Huerta’s motion for postconviction relief was facially sufficient. See Hernandez, 124 So.3d at 762. Accordingly, we reverse and remand for the trial court to consider the motion on its merits.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.