author: LAMBERT, J.

text:
    Kevin CARTER, Appellant, v. Deborah HART f/k/a Deborah Carter, Appellee.
    Case No. 5D17-1189
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 16, 2018
    Moses R. Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   LAMBERT, J.

Kevin Carter ("Former Husband") appeals an order denying his motion for temporary relief regarding his alimony obligations and granting Deborah Hart's ("Former Wife") motion for civil contempt for his failure to pay alimony. We affirm.

The parties' marriage was dissolved in 2013 with the final judgment ordering Former Husband to pay Former Wife $750 per month in permanent periodic alimony. In February 2016, Former Husband filed a supplemental petition to reduce or eliminate his alimony payment based upon two alleged substantial changes in circumstances since the final judgment. Shortly thereafter, Former Wife filed a pro se motion for contempt because Former Husband had stopped paying his monthly alimony. Following a hearing on Former Wife's motion, the court deferred its ruling and provided Former Husband leave to file an amended supplemental petition for modification of alimony, which he did. Subsequently, Former Husband also filed a motion for temporary relief to reduce or eliminate alimony.

The trial court held a simultaneous hearing on Former Husband's motion for temporary relief and Former Wife's motion for contempt. Both parties were present and testified at the hearing, and Former Husband was represented by counsel. The court denied Former Husband's motion, without prejudice, finding that some aspects of Former Husband's testimony were "not particularly credible" and that he "had not proven a substantial permanent involuntary change of circumstances" to justify a reduction in his alimony payment. The court granted Former Wife's motion, finding Former Husband to be in willful contempt of the final judgment for failing to pay alimony while having the ability to do so. The court determined that Former Husband's alimony arrearages totaled $7096.28 and set that amount as the purge to be paid. The court order also provided Former Husband with forty days to pay the purge amount and that if he failed to do so, Former Husband was to be "incarcerated indefinitely," until the purge was paid.

On appeal, Former Husband first argues that the trial court erred in holding a hearing on Former Wife's later-filed motion for contempt for nonpayment of support while his supplemental petition for a downward modification of alimony was pending. See Rosenblum v. Rosenblum , 178 So.3d 49, 50 (Fla. 1st DCA 2015) (holding that former husband was entitled to have his motion to modify child support heard and resolved before or simultaneously with the hearing on the former wife's later-filed motion for contempt); Herrera v. Sanchez , 885 So.2d 480, 481-82 (Fla. 5th DCA 2004) (reversing the order of contempt for failure to hold a hearing on a petition for downward modification, among other reasons). We conclude that Former Husband is not entitled to relief because the trial court held a simultaneous evidentiary hearing on Former Wife's motion for contempt and Former Husband's motion for temporary reduction or termination of alimony that contained the identical allegations and grounds for relief contained in his amended supplemental petition for modification of alimony.

Former Husband's remaining arguments challenge certain aspects of the contempt provisions of the order on appeal. Preliminarily, we observe that Former Husband raises no issue with the trial court's finding of civil contempt, but instead argues that the court erred in finding that he had the then-present ability to pay the purge amount. See Bowen v. Bowen , 471 So.2d 1274, 1280 (Fla. 1985) ("In the event [civil] contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order."). We review the trial court's decision to exercise its civil contempt power under an abuse of discretion standard of review. Jaffe v. Jaffe , 17 So.3d 1251, 1253 (Fla. 5th DCA 2009) (citing Fox v. Haislett , 388 So.2d 1261, 1265 (Fla. 2d DCA 1980) ).

Excluding any reference by the trial court in its order regarding Former Husband's ability to use credit cards to pay his purge, the court nevertheless found that Former Husband's available assets exceeded the purge amount, thus evidencing his present ability to pay the purge. See Bowen , 471 So.2d at 1279 ("In determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount may be obtained."). The court also provided in its order that if Former Husband had not paid his purge within forty days and was thereafter incarcerated, Former Husband was to be brought back before the court within forty-eight hours for a hearing to determine his continuing ability to pay the purge. Under these facts and circumstances, we find no abuse of discretion.

Finally, Former Husband asserts that his due process rights were violated in two ways because Former Wife did not specifically request incarceration in her pro se motion for contempt and neither her motion for contempt nor the notice of hearing complied with Florida Family Law Rule of Procedure 12.615(b) because the following language from this rule was lacking:

FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.

Addressing the latter assertion, our record does not reveal whether this caveat was provided to Former Husband in any notice of hearing. Regardless, Former Husband is not entitled to relief. In Martyak v. Martyak , 881 So.2d 48 (Fla. 4th DCA 2004), the Fourth District explained that at a civil contempt hearing, the trial court proceeds differently depending upon whether or not the alleged contemnor is present for the hearing. 881 So.2d at 49. If present, the court is to determine whether the alleged contemnor has the present ability to pay and willfully failed to pay. Id. "[I]f the alleged contemnor is not present, then the court is to set a reasonable purge amount and may issue the writ of bodily attachment that was threatened in the notice [required by rule 12.615(b) ]." Id. at 49-50. However, if the writ is issued, the contempt order must direct that upon execution of the writ, the alleged contemnor is to be brought before the court within forty-eight hours for a hearing on whether he or she has the present ability to pay support and, if so, whether the failure to pay is willful. Id. at 50 (quoting Fla. Fam. L. R. P. 12.615(c)(2)(B) ).

Here, Former Husband, unlike Mr. Martyak, was present with counsel at the contempt hearing and was provided with his due process right to present evidence as to his present ability to pay and whether his failure to pay alimony was willful. Thus, the failure, if any, to include the above language from rule 12.615 in Former Wife's motion for contempt did not adversely affect Former Husband's due process rights to notice and an opportunity to be heard and present evidence. Finally, at the start of the contempt hearing, the trial court unequivocally placed Former Husband on notice that he was facing potential incarceration as a sanction for contempt. At no point during the hearing did Former Husband object or otherwise argue that this sanction or remedy for his potential contempt was unavailable because Former Wife did not request it in her motion. See In re D.J. , 9 So.3d 750, 755 (Fla. 2d DCA 2009) (finding that due process concerns are alleviated through implied consent, when arguments and evidence are presented on the issue at trial without objection by the opposing party (citing W.S. v. Dep't of Child. & Fams. , 961 So.2d 1131, 1132 (Fla. 4th DCA 2007) ; K.S. v. Dep't of Child. & Fams. , 940 So.2d 577, 578 (Fla. 5th DCA 2006) ) ).

For these reasons, we affirm the order under review in all respects.

AFFIRMED.

PALMER and WALLIS, JJ., concur.

      Neither party contests this provision.

      We also reject, without further discussion, Former Husband's argument that the trial court was "prohibited" from holding a hearing on his motion to temporarily reduce or terminate his alimony obligation.

      Former Husband has not contested this provision of the order.

      As previously stated, Former Husband has not challenged the trial court's finding that his failure to pay alimony was willful. Former Husband's testimony at the contempt hearing established that shortly after Former Wife filed her motion for contempt, Former Husband settled a separate, unrelated lawsuit and received just under $24,000 in settlement proceeds. Former Husband paid nothing towards his arrearages, paid no further monthly alimony payments, and at the time of the hearing, had almost completely depleted these funds.

      Former Husband's counsel below is also his counsel on appeal.


source: Caselaw Access Project

author: Ciklin, J.

license: Public Domain

text:
    Milton N. WHYNES, Appellant, v. AMERICAN SECURITY INSURANCE COMPANY and Wells Fargo Bank, N.A., Appellees.
    Nos. 4D16-2862 4D16-3668
    District Court of Appeal of Florida, Fourth District.
    March 21, 2018
    Jeffrey Golant of The Law Offices of Jeffrey N. Golant, P.A., Coral Springs, for appellant.
    Farrokh Jhabvala, Frank Burt and Peter D. Webster of Carlton Fields Jorden Burt, P.A., Miami, for appellee, American Security Insurance Company.
    Sara F. Holladay-Tobias and Emily Y. Rottmann of McGuireWoods LLP, Jacksonville, for appellee, Wells Fargo Bank, N.A.
   Ciklin, J.

Milton N. Whynes ("Whynes") appeals the dismissal of his complaint against American Security Insurance Company ("ASIC") and Wells Fargo Bank, N.A. ("Wells Fargo"). The complaint alleged a violation of a consumer protection statute, section 626.9551(1)(d), Florida Statutes (2015), and sought a declaratory judgment. Because the trial judge correctly determined that the statute is inapplicable to any of the allegations contained in the complaint, we affirm.

Whynes, a borrower, challenges the exchange of information between his mortgagee bank, Wells Fargo, and the servicer that monitors required levels of insurance on its mortgaged properties, ASIC, pursuant to section 626.9551(1)(d). Whynes alleges that, in exchange for this mortgage monitoring service, ASIC has the exclusive right to impose "force-placed insurance" on the Wells Fargo properties if the properties become uninsured through lapses or otherwise under-insured.

Underlying this action is section 626.9551(1)(d)'s provision that no person may use or provide to others insurance information required to be disclosed by a borrower to a lending institution in connection with a loan "for the purpose of soliciting the sale of insurance" without the borrower's consent. (Emphasis added). Whynes alleged that, despite his maintenance of insurance, ASIC force-placed insurance on Whynes' home. Further, he essentially alleged a specific violation of section 626.9551(1)(d) in that ASIC used Whynes' information to solicit the sale of a force-placed insurance policy to Wells Fargo. Whynes sought a declaratory judgment stating that ASIC may not retain his insurance information and that Wells Fargo may not provide any more protected information to ASIC.

ASIC and Wells Fargo separately moved to dismiss, alleging, among other things, that Whynes failed to state a cause of action: He did not allege a "solicitation" within the meaning of section 626.9551(1)(d) since his insurance was force-placed and Whynes, the borrower, was not directly solicited. The trial court agreed and dismissed the complaint.

Accordingly, the issue before this court is whether section 626.9551(1)(d) requires the prohibited solicitation to be directed to a borrower. We agree with the trial court that it does and, because there is no binding authority interpreting section 626.9551(1)(d), we offer our interpretation.

It is a fundamental principle of statutory interpretation that legislative intent is the "polestar" that guides this Court's interpretation. We endeavor to construe statutes to effectuate the intent of the Legislature. To discern legislative intent, we look "primarily" to the actual language used in the statute. Further, "[w]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent."

Borden v. East-European Ins. Co ., 921 So.2d 587, 595 (Fla. 2006) (alteration in original) (citations omitted). "In determining legislative intent, we must give due weight and effect to the title ... which was placed at the beginning of the section by the legislature itself" and which "is a direct statement by the legislature of its intent." State v. Webb , 398 So.2d 820, 824-25 (Fla. 1981). Further, "[a] phrase must be viewed in the context of the entire statutory section." WFTV, Inc. v. Wilken , 675 So.2d 674, 678 (Fla. 4th DCA 1996).

Turning to the subject statute, section 626.9551 is part of Florida's Unfair Insurance Trade Practices Act, see section 626.951(2), Florida Statutes (2015), and is entitled "Favored agent or insurer; coercion of debtors." The statute provides in relevant part:

(1) No person may:
....
(d) Use or provide to others insurance information required to be disclosed by a customer to a financial institution, or a subsidiary or affiliate thereof, in connection with the extension of credit for the purpose of soliciting the sale of insurance , unless the customer has given express written consent or has been given the opportunity to object to such use of the information. Insurance information means information concerning premiums, terms, and conditions of insurance coverage, insurance claims, and insurance history provided by the customer. The opportunity to object to the use of insurance information must be in writing and must be clearly and conspicuously made.

§ 626.9551, Fla. Stat. (emphasis added).

The trial court did not err because the plain language of section 626.9551 indicates its prohibition of solicitations made directly to borrowers. Although the language of subsection (1)(d) does not contain such an express limitation, the portion of the section's title, "coercion of debtors," contemplates a situation in which an insurer is dealing directly with an unsophisticated party such as an individual borrower, not a situation in which two sophisticated financial entities are dealing with one another, such as when a bank purchases a force-placed insurance policy from an insurer. The other subsections within section 626.9551 also support this conclusion, as they largely contemplate direct dealings with borrowers and/or customers. See, e.g. , § 626.9551(1)(a)-(b) (prohibiting a lender from conditioning a loan on a borrower obtaining an insurance policy through a particular insurer and prohibiting the rejection of a requisite insurance policy because it was underwritten by a person not associated with a lender).

Whynes urges this court to defer to Florida Administrative Code Rule 69O-124.015, which he contends supports his interpretation of the statute. Because the language of the statute is clear, there is no reason to and therefore we will not defer to administrative construction. See Felder v. King Motor Co. of S. Fla. , 110 So.3d 105, 107 (Fla. 4th DCA 2013) ("[A]dministrative construction of a statute ... and other extraneous matters are properly considered only in the construction of a statute of doubtful meaning ." (emphasis in original) (citation omitted)).

Affirmed.

Levine and Klingensmith, JJ., concur.

Levine, J., concurs specially with opinion, in which Klingensmith, J., concurs.

Levine, J., concurring specially.

I concur with the majority opinion that the trial court correctly found that the text of section 626.9551(1)(d), Florida Statutes, was inapplicable to the facts of this case. However, I write to address two issues.

First, I write to note that in interpreting a statute, one should first consider the text of the statute. The legislature's intent is then considered only if a statute is not clear and unambiguous. The majority opinion contains the oft-quoted maxim that "[i]t is a fundamental principle of statutory interpretation that legislative intent is the 'polestar' that guides this Court's interpretation." As Justice Lawson recently opined:

Florida's appellate courts have for decades routinely framed the statutory construction task in general (for all cases) as starting with the "legislative intent as polestar" maxim. We next explain that "legislative intent" is discerned "primarily from the text of the statute." This construct improperly and confusingly elevates a secondary rule of construction to a primary position, but is harmless in most cases because we regularly explain that intent is determined primarily from the text of the statute-and that the inquiry should end with the text when it is clear and unambiguous. However, there is a potential harm.

Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 313-14 (Fla. 2017) (Lawson, J., concurring) (citations omitted). Our consideration of a statute should always start-and if possible, end-with the text. Only after reviewing the text should we look, if needed, to "legislative intent."

Second, I write to join those judges who have questioned the idea that courts should automatically defer to an agency's interpretation of a statute even where there is no technical expertise involved in its interpretation. In this case, appellant in his brief complained that "the circuit court failed to accord appropriate deference to the Florida Department of Financial Services' authoritative interpretation" of the statute in question. Appellant fails to explain why an agency can read or interpret a statute like the one dispositive to the resolution of this case with more clarity or accuracy than the members of the judiciary. See Housing Opportunities Project v. SPV Realty, LC , 212 So.3d 419, 425 n.9 (Fla. 3d DCA 2016) ("There is no reason for the rule [of deference] when we are as capable of reading the statute or rule as the agency, which may well have its own [ ] agenda.").

The judiciary has long grappled with this issue. Justice Scalia analyzed the problem of federal administrative deference, or "Chevron deference," by noting that it could lead to the "abdication of judicial responsibility." Antonin Scalia, Judicial Deference to Administrative Interpretations of Law , 1989 Duke L.J. 511, 514 (1989). A half century earlier, Justice Sutherland warned that the "appropriation of unauthorized power by lesser agencies" threatens constitutional guarantees. See Jones v. Sec. & Exch. Comm'n , 298 U.S. 1, 24, 56 S.Ct. 654, 80 L.Ed. 1015 (1936).

I agree with Judge Frank Shepherd, who opined in a concurrence that "this court should seriously consider the constitutional implications of blindly adhering to the mantra so regularly incanted by the Court to support, uphold, or approve agency decision-making that 'an agency's interpretation of a statute, with which it is entitled with administering shall be accorded great weight ....' " Pedraza v. Reemployment Assistance Appeals , 208 So.3d 1253, 1256 (Fla. 3d DCA 2017) (citation omitted). He rightly pointed to the "due process problem of automatically taking the side of one of the parties in the case." Id. at 1257. He further noted that "deference to an agency's construction or application of a statute implicates ... separation of powers questions deserving of serious contemplation by future members of this and other courts around the state." Id.

Because of due process and separation of powers concerns, I agree that we should give serious thought to the implications of automatic deference. That sort of deference to agencies is often removed from any showing of agency expertise justifying such deference.

Thus, although there are times that there could be a demonstrable need for deference to agency interpretation, that deference ought to be coupled to a showing of exacting technical expertise. See, e.g., Island Harbor Beach Club, Ltd. v. Dep't of Nat. Res. , 495 So.2d 209 (Fla. 1st DCA 1986) (deferring to Department of Natural Resources' interpretation of "beach-dune system" because it required agency expertise).

In other circumstances, such deference is unwarranted. See Donato v. American Tel. & Tel. Co. , 767 So.2d 1146, 1153 (Fla. 2000) (rejecting Florida Commission on Human Relations' interpretation of "marital status," an unambiguous phrase); Muratti-Stuart v. Dep't of Bus. & Prof'l Regulation , 174 So.3d 538, 540 (Fla. 4th DCA 2015) (observing that a court need not defer to an agency interpretation when that interpretation did not require the use of agency's special expertise); Doyle v. Dep't of Bus. Regulation , 794 So.2d 686, 690-91 (Fla. 1st DCA 2001) (declining to defer to labor regulation agency's interpretation of an attorney fee statute).

Deference should be rare and infrequent and observed only when it is warranted by significant, specialized technical knowledge. Thus, as a result of legitimate concerns of due process and separation of powers, we ought to think long and hard before we automatically defer to agencies and, by deferring, diminish the court's own ability to read, analyze, and interpret the statute or regulation at issue. Justice Gorsuch got it right when writing about federal administrative deference while on the Tenth Circuit:

There's an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth.

Gutierrez-Brizuela v. Lynch , 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).

Maybe the time has come to face unwarranted deference to administrative agencies here in Florida as well.

      "Force-placed insurance" refers to insurance coverage obtained by a mortgage servicer where a borrower has failed to maintain or renew insurance coverage on the subject property as required under the terms of the mortgage. See 12 U.S.C. § 2605(k)(2).


author: Per Curiam.

text:
    James Neil WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1595
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Andy Thomas, Public Defender, David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, James Neil Wallace, challenges his conviction for aggravated assault and raises two issues on appeal, only one of which merits discussion. Appellant argues, and we agree, that the trial court erred in denying his motion for judgment of acquittal. We, therefore, reverse the conviction and remand.

The State charged Appellant with two counts of aggravated assault by threat with a deadly weapon, one of which involved a motor vehicle and one of which involved a cane. During the State's case, the victim testified that Appellant, his "biological father" whom he had not seen in twenty years, came to his residence notwithstanding an injunction prohibiting such. On direct examination, the victim testified, "I open the door, tell him to leave, start cussing each other, and then he gets mad and lunges at me with his cane. I step back to nail him, and he stepped back himself, and then we cussed each other some more." The victim acknowledged on cross-examination that Appellant did not swing the cane at him like someone would swing a baseball bat or a golf club. He testified, "Like, one side, one hand holding it [the cane] braced, and the other side forcing it in." He affirmatively responded when asked if Appellant pushed the cane toward him. After the State rested its case, defense counsel moved for a judgment of acquittal, arguing that the cane was not a deadly weapon and that it was not reasonable to conclude that the victim had a well-founded fear of Appellant. The prosecutor asserted in part that "being struck with a cane can certainly break someone's bones, or cause any other form of great bodily harm." The trial court denied Appellant's motion, along with his renewed motion made after the defense rested its case. The jury found Appellant not guilty of aggravated assault involving a motor vehicle, but guilty of the offense involving the cane. This appeal followed.

The question presented by a motion for judgment of acquittal is whether, in the light most favorable to the State, the evidence is legally adequate to support the charge. Perez v. State , 138 So.3d 1098, 1100 (Fla. 1st DCA 2014). If competent, substantial evidence is presented to support a conviction, an appellate court generally will not reverse the denial of a motion for judgment of acquittal. Id. A trial court's ruling on such a motion is reviewed on appeal de novo. Id. In reviewing a trial court's ruling, an appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Id.

An assault is "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." § 784.011(1), Fla. Stat. (2014). Aggravated assault is "an assault [w]ith a deadly weapon without intent to kill." § 784.021(1)(a), Fla. Stat. (2014). Whether an object is a deadly weapon is not to be determined upon its capability of producing death, but rather on its likelihood to produce death or great bodily injury. Rudin v. State , 182 So.3d 724, 726 (Fla. 1st DCA 2015) ; see also D.B.B. v. State , 997 So.2d 484, 485 (Fla. 2d DCA 2008) (noting that a deadly weapon is an item which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm or any instrument likely to cause great bodily harm because of the way it is used during a crime and "[w]hether an item is a deadly weapon is a factual question to be determined under the circumstances, taking into consideration its size, shape, material, and the manner in which it was used or was capable of being used").

We agree with Appellant that the State's evidence regarding the cane was insufficient to support the charge of aggravated assault. Although a cane could certainly constitute a deadly weapon in certain circumstances, the victim's testimony that Appellant lunged at him with the cane or pushed or forced his cane toward him during a verbal altercation and that both men then stepped backward did not establish that Appellant used the cane in a manner likely to produce death or great bodily harm. While the prosecutor correctly argued below that being struck with a cane could cause great bodily harm, there was no testimony presented in this case that Appellant struck the victim, and, according to the victim, Appellant did not swing the cane at him like one would swing a baseball bat or golf club. Instead, the cane was pushed or forced toward Appellant. Based upon the evidence, we hold that the trial court erred in denying Appellant's motion for judgment of acquittal. See J.L. v. State , 60 So.3d 462, 463 (Fla. 1st DCA 2011) (holding that a plastic fork that was used to stab the victim in the neck did not constitute a deadly weapon under the circumstances present in the case); D.B.B. , 997 So.2d at 485 (reversing the adjudication for aggravated assault where the appellant cursed at his mother and threw his bicycle at her, forcing her to step back to prevent the bicycle from hitting her, and reasoning that the manner in which the bicycle was used did not make it likely to cause death or great bodily harm); D.C. v. State , 567 So.2d 998, 1000 (Fla. 1st DCA 1990) (holding that there was insufficient evidence to support the trial court's conclusion that the deodorant spray used at close range constituted a deadly weapon); E.J. v. State , 554 So.2d 578, 579 (Fla. 3d DCA 1989) (holding that the evidence did not establish aggravated assault where the appellant threw a skateboard at a vehicle); Rogan v. State , 203 So.2d 24, 25 (Fla. 3d DCA 1967) (holding that there was not sufficient evidence upon which the trier of fact could properly determine that the flower pot was of such character to be classified as a deadly weapon where the pot was thrown from outside into a window of a residence, the "complaining witness" was inside seated in a chair five feet from the window, and the flower pot broke the glass but did not penetrate the screen).

Accordingly, we REVERSE the aggravated assault conviction and REMAND with instructions that the trial court enter an amended judgment for the offense of simple assault and sentence Appellant for that offense.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


author: Winsor, J.

text:
    Joseph JEFFERSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1057
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Andy Thomas, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Joseph Jefferson argues that police unconstitutionally seized his girlfriend's car after arresting him for driving without a license. He asks this court to reverse the denial of his motion to suppress evidence (a gun and ammunition) police found in the car. We find no Fourth Amendment violation, so we affirm.

Jefferson was almost home when a police officer saw him driving without a seatbelt. The officer stopped Jefferson as he was pulling into his apartment complex's parking lot. Within two minutes of the initial stop, Jefferson was under arrest for driving without a license. Twenty minutes later, a K9 unit arrived, and the dog sniffed the car Jefferson had been driving. The dog alerted, and officers searched the car and found a firearm and ammunition under the driver's seat. The State charged Jefferson with driving without a license and possession of a firearm by a felon.

Jefferson does not dispute the fact that a dog sniff can provide probable cause. See Florida v. Harris , 568 U.S. 237, 247, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ("[T]he dog's alert provides probable cause to search."). Instead, he contends there should have been no sniff because the car was illegally seized when the sniff occurred. Relying on Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), Jefferson argues that police had no authority to hold the car during the twenty minutes between his arrest and the dog's alert. Rodriguez held that absent reasonable suspicion, law enforcement's authority to seize a vehicle during a traffic stop "ends when tasks tied to the traffic infraction are-or reasonably should have been-completed." 135 S.Ct. at 1614. Here, Jefferson maintains, police had completed all of the "ordinary inquiries incident to the traffic stop" once they had arrested him, id. at 1615 (marks and citation omitted), meaning they could no longer maintain control over the car.

The problem with Jefferson's argument is that the car-whether seized or not-was not going anywhere until someone with authority to move it arrived at the scene. Unlike the motorist in Rodriguez , who would have been free to drive away in his car but for the dog sniff, Jefferson was already under arrest for driving without a license and was not free to leave, irrespective of the sniff. Jefferson asked officers to release the car to his sister, but she did not arrive until after the sniff had occurred. Nor did the car's owner (Jefferson's girlfriend) arrive in time.

In short, from the time of the arrest until the sniff established probable cause, the car was sitting parked in a parking lot with no one available to take control of it. During that time, officers were free to initiate the sniff, so there was no Fourth Amendment violation. See United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (dog sniff of personal property, "which was located in a public place, [by] a trained canine[ ]did not constitute a 'search' within the meaning of the Fourth Amendment"); State v. Rabb , 920 So.2d 1175, 1201 (Fla. 4th DCA 2006) (no Fourth Amendment violation from "a sniff by a trained dog, standing where it has a right to be, of odors emanating from any protected place"), approved , Jardines v. State , 73 So.3d 34, 56 (Fla. 2011), aff'd sub nom. Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).

AFFIRMED .

Wolf and Rowe, JJ., concur.


author: PER CURIAM.

text:
    Isaac L. ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4083
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018 Rehearing Denied April 17, 2018
    David J. R. Frakt, of Law Office of David Frakt, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the order denying Appellant's Florida Rule of Criminal Procedure 3.850 motion to "correct sentence." Appellant has admittedly completed serving what he contends is an invalid sentence, thus rendering the issue before us moot. See Sneed v. State , 749 So.2d 545, 546 (Fla. 4th DCA 2000) (citing Palmer v. State , 182 So.2d 625, 626 n.2 (Fla. 4th DCA 1966) ).

AFFIRMED.

PALMER, ORFINGER and LAMBERT, JJ., concur.


text:
    Felix CASTRO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3102
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Felix Castro, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Felix Castro appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Castro raised eight grounds for relief in his motion. We affirm, without further discussion, the postconviction court's denial of Grounds One through Seven. As to Ground Eight, for the reasons explained below, we reverse for the lower court to either hold an evidentiary hearing or attach additional court records to its order to conclusively refute this claim.

Castro was convicted after trial of trafficking in hydrocodone in excess of twenty-eight grams. Construing the trial evidence in the light most favorable to the State, a confidential informant working under the direct supervision of the Drug Enforcement Agency purchased 2000 hydrocodone pills from Castro at a prearranged meeting in the parking lot of a tattoo parlor for the sum of $4000. In Ground Eight of his motion, Castro alleged that his trial counsel rendered ineffective assistance because he did not call Castro's wife to testify at trial as an alibi witness. Castro states that he was prejudiced by counsel's failure because his wife was available and willing to testify at trial and, if called, would have said that she was with Castro on both the day the drug transaction was negotiated and then on the day that it was consummated and that Castro was not present for either event, as she and Castro "never left each other's company." Castro averred that if trial counsel had called his wife to testify, the jury "would have found her to be more credible than the paid felon [confidential] informant who (testified against Castro and) was being compensated for his role in [Castro's] arrest," and the jury would have found him not guilty.

In summarily denying this claim, the postconviction court attached to its order a portion of the trial transcript where the following exchange occurred:

THE COURT: Mr. Castro, I ask every defendant at this point in time: Are you satisfied with the services that you received from [trial counsel]?
[THE DEFENDANT: ] Yes.
THE COURT: Is there anything that you told him to do and he didn't do?
THE DEFENDANT: No, Sir.

In the denial order, the court found that this dialogue sufficiently "refute[d] [Castro's] claim that he wanted counsel to call his wife as an alibi witness."

"The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant's guilt." Gutierrez v. State , 27 So.3d 192, 194 (Fla. 5th DCA 2010) (citing Ford v. State , 825 So.2d 358, 360-61 (Fla. 2002) ; Spellers v. State , 993 So.2d 1117, 1118 (Fla. 5th DCA 2008) ). Here, Castro set forth a facially sufficient claim of ineffective assistance of counsel because he alleged the identity of the potential witness, the substance of the witness's testimony, how the omission of the testimony prejudiced him, and that the witness was available for trial. See Spellers , 993 So.2d at 1118. A defendant is entitled to an evidentiary hearing on a claim that counsel was ineffective for failing to call a witness to testify unless the motion is conclusively refuted by the record or is otherwise procedurally barred. Gutierrez , 27 So.3d at 194 (citing Jacobs v. State , 880 So.2d 548, 550-51 (Fla. 2004) ); Spellers , 993 So.2d at 1118.

We conclude that the record attached to the order under review does not conclusively refute Castro's claim that his trial counsel was ineffective for failing to call Castro's wife as an alibi witness. As to the court's first question, a defendant's statement of satisfaction with counsel in response to a generic inquiry from the trial court is "generally insufficient to conclusively refute a claim that counsel was ineffective for failing to call a witness." Evans v. State , 210 So.3d 704, 705 n.1 (Fla. 5th DCA 2017) (citing Law v. State , 847 So.2d 599, 600-01 (Fla. 5th DCA 2003) ). Admittedly, the court's second inquiry to Castro of whether there was anything that Castro wanted counsel to do that he did not do presents a closer question. Nevertheless, this question, as phrased, and the response did not conclusively refute this particular claim. In Fletcher v. State , 177 So.3d 1010 (Fla. 5th DCA 2015), we reversed the summary denial of a defendant's rule 3.850 motion, holding that the trial court's inquiry into whether the defendant was satisfied with counsel and whether counsel did everything that the defendant wanted was "not specific enough to conclude that the defendant should have taken the opportunity to advise the trial court that, in his opinion, defense counsel should have called the two witnesses." 177 So.3d at 1012, 1014 ; cf. McIndoo v. State , 98 So.3d 640, 641-42 (Fla. 4th DCA 2012) (affirming the summary denial of a defendant's rule 3.850 motion for counsel's failure to call a specific witness at trial where the record shows that the defendant could not have been confused about his right to call witnesses at trial when the trial court questioned the defendant at length about his decision not to call witnesses, defendant responded that he had discussed the issue with his counsel, and defendant confirmed that he had not been coerced or promised anything by not calling witnesses, the determination not to call his known witnesses was of his own free will, and he was satisfied with his attorney's representation).

Accordingly, we reverse the summary denial of Ground Eight of Castro's postconviction motion and remand for an evidentiary hearing or to attach additional court records to the denial order that conclusively refute this claim.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, BERGER and LAMBERT, JJ., concur.

      The transcript inadvertently indicates that counsel responded to this question. Contextually, it is clear that Castro responded.

      Evans , 210 So.3d at 705 n.1 ("We note that it is generally necessary to hold an evidentiary hearing to determine why trial counsel did not call a particular witness." (citing Jacobs , 880 So.2d at 555 ) ).


text:
    Richard V. FLETCHER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-432
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Paula C. Coffman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Richard V. Fletcher, appeals the denial of his postconviction motion, after an evidentiary hearing, alleging that his counsel was ineffective for failing to call two witnesses who would have offered substantial testimony in support of his primary theory of defense. Specifically, at the evidentiary hearing, Appellant offered two witnesses who provided testimony to support the defense theory that the victim's mother, Appellant's then wife, induced the victim to fabricate the allegations of lewd or lascivious molestation against Appellant so that the mother could engage in a relationship with Appellant's friend. We reverse for a new trial.

Ineffective assistance of counsel claims are evaluated pursuant to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the claimant must demonstrate that his counsel was deficient by identifying particular acts or omissions of his trial counsel that are outside the wide range of reasonably competent performance under prevailing professional standards. Conde v. State , 35 So.3d 660, 662 (Fla. 2010). Second, the movant must also allege prejudice by demonstrating a reasonable probability that the result of the proceeding would have been different but for his trial counsel's allegedly deficient performance. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Id. (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant's guilt. Gutierrez v. State , 27 So.3d 192, 194 (Fla. 5th DCA 2010).

Here, the jury's verdict hinged on crediting the victim's and the victim's mother's testimony as there was no physical evidence of abuse. Without the testimony of two exculpatory witnesses, Appellant was unable to offer evidence to explain his theory of defense, which was alluded to at trial but not developed. Specifically, while defense counsel argued to the jury that the victim's mother wanted her then-husband, Appellant, out of her and her children's lives, defense counsel failed to establish a reason why she wanted Appellant out of the way. The two witnesses would have provided testimony to explain that the victim's mother allegedly wanted Appellant out of her and her children's lives so she could engage in a relationship with Appellant's friend. Further, this testimony would have been damaging to the State's case in light of evidence offered at trial that Appellant's son asked the victim why she said things about his dad, and the victim responded that she had to or her mother would be mad at her. See Fletcher v. State , 177 So.3d 1010, 1013 (Fla. 5th DCA 2015).

Notwithstanding, the postconviction court denied Appellant's motion below, reasoning that counsel could not have called the two witnesses at trial because the trial court had granted a motion in limine which would have barred their testimony. However, counsel herself inexplicably failed to oppose the motion in limine, stating at the hearing on the motion, "Your Honor, I can't think of a legal basis for which to allow that in." Of course, the legal basis would have been that the testimony was relevant, going to the issues of bias and motive of the victim's mother and the victim herself, which were central to Appellant's defense at trial, a defense that would have cast doubt on Appellant's guilt if believed by the jury. As a result, we cannot conclude that the order in limine excuses counsel's otherwise deficient performance for failing to call these two exculpatory witnesses. Thus, we find there is a reasonable probability that if defense counsel had presented the testimony of these two witnesses, the jury would have returned a verdict of not guilty. Accordingly, we reverse the postconviction court's order denying Appellant's motion for postconviction relief and remand for a new trial.

REVERSED AND REMANDED.

SAWAYA, EVANDER and EISNAUGLE, JJ., concur.


text:
    Jimmy Lee CASTANOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4380
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    James S. Purdy, Public Defender, and Alexandra K. Galvin, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jimmy Castanos appeals his convictions for robbery with a weapon, battery upon a person sixty-five years or older, and false imprisonment. Castanos raises one issue on appeal: the trial court's refusal to allow re-cross examination of the victim. We affirm.

We review the trial court's limitation of re-cross examination for an abuse of discretion. See Sandoval v. State, 198 So.3d 926, 929 (Fla. 4th DCA 2016). Castanos sought to re-cross the victim regarding the victim's testimony about the length of his interview with the police.

The victim's testimony, including direct, cross, and re-direct examinations, was lengthy. On cross-examination, defense counsel introduced into evidence the victim's taped interview with the police regarding the incident. Counsel used the interview to point out that the victim's trial testimony contained several details that he did not tell the police during the interview. On re-direct, the prosecutor established that the victim had been on the stand "for hours," while the victim indicated that the police interview lasted approximately three or four minutes; therefore, the victim was able to provide more details from the incident at trial. Specifically, the victim testified, "Yes, I have, I only had three minutes to talk to the police and you've been grilling me for hours here."

The defense subsequently sought to conduct re-cross examination of the victim for impeachment purposes because the actual length of the interview contradicted the victim's testimony and no one restricted the length of time he spoke to the police. The trial court denied the defense's request, stating "You can cover that in argument. The foundation [is] in there, everything is there."

Because the State did not elicit "any new matter on re-direct, but only a detail which had been addressed in cross-examination," we find no abuse of discretion in the trial court declining to allow re-cross examination of the victim. See Hurst v. State, 825 So.2d 517 (Fla. 4th DCA 2002). To the extent that Castanos wished to give the victim's testimony regarding the length of the interview a literal meaning, the interview was played at trial and admitted into evidence. Thus, its length had been established.

AFFIRMED.

COHEN, C.J., WALLIS and EISNAUGLE, JJ., concur.

      The majority of the victim's testimony occurred during cross-examination.


text:
    Barontae Dion ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2187
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Barontae Dion Roberts ("Defendant") appeals his judgment and sentence for armed burglary of a dwelling with a firearm, possession of a firearm by a convicted felon, and criminal mischief. Defendant contends that the State made a number of improper comments during closing arguments that warrant reversal. Because Defendant did not timely object to these improper comments, he contends they constituted fundamental error. "A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case." Jassan v. State, 749 So.2d 511, 512 (Fla. 2d DCA 1999). We find merit in two of Defendant's assertions and reverse and remand for a new trial.

First, the State misrepresented the applicable law regarding what actions would support a conviction of burglary. Pursuant to section 810.02(1)(b)1., Florida Statutes (2014), it is burglary to enter a dwelling without an invitation with the intent to commit an offense within it. In this case, the prosecutor argued to the jury, "Even if you believe everything that he said, say you believe every word [out] of this six-time convicted felon's mouth, he still was committing a crime when he entered. He was resisting the officers by running away from them. So that, in and of itself, his testimony is burg dwelling, period." The prosecutor also stated, "Didn't he have a conscious intent that the criminal act be done even if you believe what he said? Because he had the intent to commit-in his words, he is fleeing from police."

With this argument, the State told the jurors that, even if they believed Defendant's testimony, he was still guilty of the crime of burglary because he entered a house while committing the crime of fleeing or resisting law enforcement. However, neither offense was supported by the evidence presented in this case. Section 316.1935(2), Florida Statutes (2014), provides that "[a]ny person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree." Section 843.02, Florida Statutes (2014), provides that it is a first-degree misdemeanor to resist, obstruct, or oppose without violence any law enforcement officer "in the execution of legal process or in the lawful execution of any legal duty." The evidence presented at Defendant's trial did not support either of these charges because no witness testified that any law enforcement officer had a vehicle's siren and lights activated at the time Defendant entered the house or that law enforcement had attempted to detain or arrest Defendant. Accordingly, the State's argument was a misrepresentation of the applicable law.

Second, the State improperly shifted the burden of proof to Defendant during its closing argument. "The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt." Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998). Therefore, "it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Id. Here, the prosecutor improperly made several such comments during closing arguments, particularly when he urged the jury, "Think about [Defendant's] demeanor on this witness stand. He's being accused of armed burglary of a dwelling. He should be yelling, screaming 'I didn't do this.' He should be yelling and screaming. Yet, he was stuttering over his words. He couldn't even get his story out." A defendant's fundamental right to present a defense "stand[s] for naught if the prosecutor can ridicule a defense so presented, denigrate the accused for his temerity in raising the issue, and misstate the law in contradiction of the judge's instructions, as the prosecutor in this case did." Miller v. State, 712 So.2d 451, 453 (Fla. 2d DCA 1998).

We therefore reverse and remand for a new trial.

REVERSED and REMANDED.

SAWAYA, TORPY and BERGER, JJ., concur.


author: LaROSE, Chief Judge.

text:
    STATE of Florida, Appellant, v. T.A.K., Appellee.
    Case No. 2D17-549
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Tampa, for Appellee.
   LaROSE, Chief Judge.

The State appeals an order dismissing T.A.K.'s delinquency case due to the expiration of an earlier imposed probationary term. We have jurisdiction. See Fla. R. App. P. 9.145(c)(1)(A). We affirm.

Background Facts

T.A.K. pleaded guilty to the delinquent act of battery. The trial court withheld adjudication of delinquency and placed T.A.K. on six months' probation. The probationary term was to end on October 28, 2016. On September 15, 2016, the State filed an unsworn "Notice of violation of court order," stating that T.A.K. had failed to comply with his probationary requirements. The State wanted the trial court to hold T.A.K. in contempt for his "fail[ure] to comply with multiple sanctions required by his case manager." The notice specified no material facts underlying the State's request.

The trial court scheduled an evidentiary hearing for October 25, 2016. T.A.K. was present for that hearing before Judge Moore. However, the parties were unable to proceed because defense counsel represented that he might have a conflict of interest. Consequently, the trial court rescheduled the hearing to October 27, 2016. On October 26, the State filed an unsworn petition seeking to revoke T.A.K.'s probation.

T.A.K. did not appear at the October 27 hearing. The State stated that, if T.A.K. were present, it was prepared to proceed on the revocation of probation. Nevertheless, because of the approaching October 28 expiration of T.A.K.'s probationary term, the State asked the trial court to extend its jurisdiction beyond October 28. The trial court (Judge Coleman) agreed. Judge Coleman reasoned that T.A.K.'s probationary term had been tolled by the State's filing of the October 26 petition. He also concluded that tolling occurred because the revocation proceeding began at the October 27 hearing, prior to the termination date.

On January 27, 2017, T.A.K. filed a motion to dismiss the petition due to the expiration of jurisdiction. Following a February 2, 2017, hearing, the trial court (Judge Moore) granted the motion, despite Judge Coleman's earlier ruling to extend jurisdiction.

State's Argument

The State raises two arguments. First, the State contends that it properly filed the petition and that revocation proceedings were initiated before the October 28 expiration of probation. Thus, according to the State, the trial court retained jurisdiction. Second, the State argues that the trial court impermissibly considered T.A.K.'s motion to dismiss, as it was in actuality an untimely motion for rehearing. See Fla. R. Juv. P. 8.130(b)(1) (requiring a motion for rehearing "be made within 10 days of the entry of the order being challenged"). We reject the second argument without further comment. We reject the first argument, too; however, we write to explain why tolling did not apply. In doing so, we address the manner in which the State purported to initiate probation revocation proceedings against T.A.K.

Analysis

There is no tolling provision applicable to juvenile probation violation proceedings. See T.L.H. v. State, 93 So.3d 396, 398 (Fla. 2d DCA 2012) ("We agree with the decision of the Fifth District that there is no provision in either the statutes or the rules governing juvenile delinquency proceedings that allows for tolling of probation upon the filing of an affidavit and the issuance of a warrant." (citing K.L.T. v. State, 65 So.3d 102 (Fla. 5th DCA 2011) ) ); see also X.G. v. State, 106 So.3d 90, 91 n.1 (Fla. 2d DCA 2013) ("X.G.'s probation was set to expire ... on August 11, 2011, and even though the affidavit/petition was filed in July 2011, there is no tolling provision applicable to juvenile probation proceedings." (first citing R.H. v. State, 93 So.3d 1166, 1167 (Fla. 2d DCA 2012) ; then citing T.L.H., 93 So.3d at 398-99 ) ). Consequently, whether the probation violation proceedings were initiated prior to the expiration of T.A.K.'s probation is of no moment. And, of course, we cannot rewrite the juvenile rules or statutes to suit the State. See Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so.").

We now address the process by which the State pursued T.A.K.'s alleged probation violations. Upon a probation violation, "the [Department of Juvenile Justice] or the state attorney may bring the child before the court on a petition alleging a violation of the program." § 985.439(1)(b), Fla. Stat. (2016). We have not hesitated to reverse orders revoking a juvenile's probation absent a filed petition. See R.H., 93 So.3d at 1167 ("Because section 985.439(1)(b) and [Florida Rule of Juvenile Procedure] 8.120(a)(3) both require either the State or the DJJ to file a petition alleging a violation of juvenile probation before revocation proceedings can occur and because no petition was filed in this case, we conclude that R.H.'s probation expired prior to the revocation hearing."); T.L.H., 93 So.3d at 398-99 (holding that, in the absence of a violation petition, the complaint filed by the arresting officer was insufficient to initiate revocation proceedings). Here, the state attorney filed a petition.

However, that is not the end. Rule 8.120(a)(2) provides in pertinent part as follows: "Any proceeding alleging a violation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegation(s). The affidavit shall be executed by the child's juvenile probation officer or other person having actual knowledge of the facts." See also T.L.H., 93 So.3d at 398 (" Florida Rule of Juvenile Procedure 8.120, dealing with revocation of juvenile probation, provides that a proceeding alleging a violation of probation shall be initiated by the filing of a sworn affidavit executed by the child's juvenile probation officer 'or other person having the actual knowledge of the facts.' " (quoting Fla. R. Juv. P. 8.120(a)(2) ) ); M.T. v. State, 805 So.2d 898, 899 (Fla. 2d DCA 2001) ("With regard to juveniles, any proceeding alleging a violation of probation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegations." (citing Fla. R. Juv. P. 8.120(a)(2) ) ). Rule 8.120 also specifies that "[w]hen revocation proceedings are sought by the state attorney ... the proceedings shall be initiated by the filing of a petition alleging violation of juvenile probation. The petition shall incorporate and reference the affidavit described in subdivision (a)(2)." Fla. R. Juv. P. 8.120(a)(3) (emphasis added).

The State's petition neither incorporated nor referenced the required affidavit. And for good reason. Our record reflects that no such affidavit was ever filed. Accordingly, the State's effort to initiate revocation proceedings against T.A.K. never really started, despite its seeming knowledge for more than a month that T.A.K. was allegedly in violation of probation. Cf. T.L.H. 93 So.3d at 399 ("Both the DJJ and the State had over thirty days in which to file a petition, attach the complaint filed by the deputy sheriff, and have it served on the child (whose location was known), before the expiration of his probation. Neither took that action and ... none of the statutory and rule requirements governing juvenile violation of probation proceedings had been met.").

T.A.K.'s case is analogous to D.T.M. v. State, 46 So.3d 623 (Fla. 5th DCA 2010). In D.T.M., the Fifth District granted the juvenile's habeas petition and ordered that the juvenile be released from commitment and reinstated to probation. Id. at 624.

The court reasoned that "[t]he plain language of rule 8.120 requires a sworn affidavit"; and because none had been filed, the trial court improperly found that he was in violation of his probation. Id. at 623-24.

Similar to D.T.M., we see no affidavit in our record. We are faced with an unsworn notice and an unsworn petition. As noted earlier, the affidavit must be executed by either "the child's juvenile probation officer or other person having actual knowledge of the facts." Fla. R. Juv. P. 8.120(a)(2). That did not happen.

Further, the State's contention that its initiation of the probation revocation proceedings on October 27 tolled expiration of T.A.K.'s probation bears closer scrutiny. The State insists that tolling occurred because it had "filed a violation of probation petition on October 26th and was ready to proceed on the petition at the revocation hearing scheduled for October 27th."

Be that as it may, as noted earlier, there is no tolling applicable here. Moreover, we emphasize that the State failed to file an accompanying affidavit. "Among the minimal requirements of due process in a revocation proceeding is written notice of the alleged violation." M.T., 805 So.2d at 899 (citing Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995) ). In M.T., this court reversed the order revoking the juvenile's probation, concluding that in the absence of a properly filed affidavit under rule 8.120(a)(2), "the appellant did not receive proper notice of the claimed violation that was to serve as the basis for the revocation of his community control, he was not afforded due process." Id. (citing State v. Spratling, 336 So.2d 361 (Fla. 1976) ). Similarly, due to the State's failure to file an affidavit, T.A.K. lacked adequate notice of the claimed violations. We will not, in this case, sacrifice due process for the sake of equitable tolling in favor of the State. Cf. Major League Baseball v. Morsani, 790 So.2d 1071, 1076 n.11 (Fla. 2001) ("Equitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the limitations period based on the plaintiff's blameless ignorance and the lack of prejudice to the defendant." (citing Machules v. Dep't of Admin., 523 So.2d 1132 (Fla. 1988) ) ).

Conclusion

Because the State failed to follow the mandated process through which T.A.K. could be brought before the trial court to answer for the alleged probation violations, T.A.K.'s probationary term expired on October 28. Therefore, the trial court properly dismissed the State's petition for violation of probation.

Affirmed.

KHOUZAM and CRENSHAW, JJ., Concur.

      Interestingly, in early January 2017, T.A.K.'s juvenile probation officer filed a written recommendation "to withdraw[ ] the contempt of court" because "jurisdiction was lost for the battery case." Apparently, the State did not heed this advice.

      The D.T.M. court stated that "[t]his order is without prejudice to the initiation of a proper revocation hearing." Id. at 624. The juvenile's probation had not yet expired at the time the D.T.M. opinion issued. In contrast, T.A.K.'s probation termination date expired prior to entry of the order now on appeal.


text:
    Aixa Lebron CRESPO, Appellant, v. Ruben A. LEBRON, Appellee.
    Case No. 5D17-315
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018
    Michelle P. Smith, of Law Office of Michelle P. Smith, P.A., Orlando, for Appellant.
    Harold Deon Thompson, of DeNovo Law, P.A., Orlando, for Appellee.
   PER CURIAM.

Former Wife appeals a final judgment determining child support and a child support arrearage. At trial, the parties presented evidence that Former Husband has several sources of income, including a Federal Bureau of Prisons salary, rental income, and Veterans Administration living expense reimbursement and disability benefits. There was also evidence that Former Husband owns and operates a batting cage business, which he testified actually lost money during the relevant time period. As a result, he argued that these business losses should be subtracted from his other sources of income when calculating his total gross income. However, Former Husband testified in conclusory fashion, and did not establish the business losses by competent, substantial evidence. See § 61.30(2)(a)3, Fla. Stat. (2014) (defining "business income" as "gross receipts minus ordinary and necessary expenses required to produce income"). Even still, it appears that the trial court included some amount of business losses when calculating Former Husband's total income. We therefore reverse and remand with instructions for the trial court to recalculate child support and the child support arrearage without subtracting business losses from Former Husband's other sources of income.

REVERSED and REMANDED.

PALMER, TORPY and EISNAUGLE, JJ., concur.


text:
    John E. O'DONNELL, individually and as Trustee of the Diane Joy Milam Dennis Revocable Trust, Petitioner, v. NORTH FLORIDA LAND TRUST, INC., a Florida Nonprofit Corporation, Respondent.
    No. 1D17-5066
    District Court of Appeal of Florida, First District.
    April 3, 2018 Rehearing Denied April 27, 2018
    Edward J Fucillo of Fucillo Law Firm, P.L., Dunedin, for Petitioner.
    Alan S. Wachs, Jacksonville; Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville; Thomas A. Burns of Burns, P.A., Tampa, for Respondent.
   Per Curiam.

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

Rowe, Ray, and Makar, JJ., concur.


text:
    Christopher Blake RUSSELL, Appellant, v. Laura P. RUSSELL, Appellee.
    No. 1D17-2058
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Dorothy F. Easley of Easley Appellate Practice PLLC, Miami, for Appellant.
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellee.
   Per Curiam.

Several years after the court entered a final judgment of dissolution, Laura Russell petitioned for modifications. She sought to alter the custody, decision-making authority, and child-support arrangements the original judgment provided. After several evidentiary hearings, the lower court granted the petition. Christopher Russell, the former husband, now appeals.

Mr. Russell's main argument is that the lower court erred in granting the modification because there was no substantial change in circumstances and there was insufficient evidence to find that modification was in the child's best interest. See § 61.13(3), Fla. Stat. (2016) ("A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."). However, having reviewed the record and the testimony presented over the course of multiple hearings, we find that the lower court did not err in determining modification was warranted. See Fabre v. Levine , 618 So.2d 317, 318 (Fla. 1st DCA 1993) ("As to the question of substantial change in circumstances and the child's best interests, this court is not at liberty to disturb the trial court's ruling on these issues in the absence of a showing of legal error or an abuse of discretion, which requires a lack of competent, substantial evidence to sustain the trial court's findings."), disapproved on other grounds by Rosen v. Rosen , 696 So.2d 697 (Fla. 1997).

Mr. Russell separately argues, though, that the court erred by granting Ms. Russell unpled relief and increasing Mr. Russell's child support obligation without making sufficient findings. We agree with him on these points.

In her petition for modification, Ms. Russell sought to remove Mr. Russell's ultimate decision-making authority over the child's extracurricular activities. The parties had previously agreed that Ms. Russell would have decision-making authority concerning the child's health and academic needs, while Mr. Russell would have authority regarding the child's extracurricular activities and daycare needs. In the order on appeal, the lower court awarded Ms. Russell the final authority on extracurricular activities she requested. But it also awarded Ms. Russell authority over daycare decisions. Because Ms. Russell never requested such a modification, and because the issue was not tried by consent, the court abused its discretion and committed reversible error. See Nabinger v. Nabinger , 82 So.3d 1075, 1076 (Fla. 1st DCA 2011) ("In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings."); Abbott v. Abbott , 98 So.3d 616, 617-18 (Fla. 2d DCA 2012) (noting that to grant unrequested relief is an abuse of discretion and reversible error).

Regarding child support, the court increased Mr. Russell's obligation after finding a need for modification and an ability to pay. However, the court made no findings regarding the parties' incomes. We therefore must reverse. See Whittingham v. Whittingham , 67 So.3d 239, 239 (Fla. 2d DCA 2010) ("[W]hen determining child support a trial court is required to make findings of fact regarding the incomes of the parties because such findings are required in order to determine whether the support award departs from the [child support] guidelines."); Aguirre v. Aguirre , 985 So.2d 1203, 1207 (Fla. 4th DCA 2008) ("A final judgment is facially erroneous, requiring remand, where it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed.").

Accordingly, we reverse the portion of the final judgment awarding Ms. Russell unpled relief and increasing Mr. Russell's child support obligation. We affirm in all other respects. On remand, the trial court should recalculate the child support award and make the necessary findings.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    Carlos PAVILUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4401
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Carlos Pavilus (the defendant) appeals his judgment and sentence, entered by the trial court after a jury found him guilty of lewd or lascivious molestation. He argues that the trial court erred by 1) conducting an insufficient competency hearing; 2) failing to make an independent competency determination; and 3) failing to enter a written order on competency. The record refutes the defendant's arguments that the trial court conducted an insufficient competency hearing and failed to make an independent determination of his competency. See Davis v. State, 239 So.3d 202 (Fla. 5th DCA 2018). Nevertheless, because the trial court failed to enter a written order reflecting its oral finding of competency announced at the hearing, we remand for the entry of a written order, nunc pro tunc to the date when the oral ruling was made. See Wriden v. State, 238 So.3d 444 (Fla. 5th DCA 2018). In all other respects, we affirm.

AFFIRMED; REMANDED with instructions.

SAWAYA, PALMER, and EVANDER, JJ., concur.


text:
    C.C., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-0369
    District Court of Appeal of Florida, First District.
    April 11, 2018
    Jeffrey L. Barrett, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Ward L. Metzger, Children's Legal Services, Jacksonville, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(l ) ; Fla. R. App. P. 9.020(i).

Lewis, Roberts, and Jay, JJ., concur.


text:
    Joshua I. HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2636
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Joshua I. Harris appeals the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Because the court records attached to the denial order do not conclusively refute Harris's claim in ground two of his motion, in which he argued that his trial counsel was ineffective for failing to call a defense witness at trial whose testimony Harris alleged would have established that he did not shoot the victim, we reverse that part of the order and remand for the court to either hold an evidentiary hearing on this ground or attach additional records to its order conclusively refuting this claim. We otherwise affirm the order without further discussion.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY, BERGER and LAMBERT, JJ., concur.


text:
    Harry Lee GOOD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-935
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Michael A. Graves, Public Defender Ocala, and Jessica L. Roberts, Assistant Public Defender, Ocala, for Petitioner.
    No appearance, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 24, 2018 order denying Petitioner's pro se motion for post-conviction relief, filed in Case No. 05-CF-389-A-Z, in the Judicial Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, BERGER and WALLIS, JJ., concur.


author: COHEN, C.J.

text:
    Johnathan CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2729
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
    ON MOTION FOR REHEARING
   COHEN, C.J.

Upon consideration of the State's motion for rehearing, we grant the motion, withdraw our prior opinion, and substitute this one in its place.

Johnathan Crawford appeals his judgment and sentence following a finding that he violated probation. On appeal, Crawford argues that the trial court erred in relying solely on hearsay in making that determination. We agree and reverse.

Crawford's violation of probation charges arose from a domestic violence incident. Specifically, in the affidavit of violation of probation, the State charged Crawford with two violations of condition five of his probation based on the alleged false imprisonment and battery of the alleged victim on the night in question. However, there was no testimony from the hearing that would support a finding that Crawford falsely imprisoned the victim. The issue of battery presents a closer call. Yet, the victim's testimony provided insufficient non-hearsay evidence to support a finding that Crawford committed a battery on the victim.

At the violation hearing, the State presented three witnesses. The State first called Crawford to establish that he was the individual who had been placed on probation. The State next called Crawford's girlfriend, the alleged victim of the domestic violence. She testified that she could not remember anything about the evening in question, including what she told a 911 operator. She testified that she called 911 because she and Crawford "got into an altercation." However, she denied having any physical contact with Crawford that evening and stated she did not recall what she told the responding officers. The State's last witness was Officer Varela, who testified that his involvement was "administrative only." The State neither admitted the alleged victim's 911 call into evidence nor presented the testimony of the responding officers who, according to the arrest affidavit, observed red marks on the alleged victim's neck. However, the State admitted the investigative documents into evidence.

While the trial court correctly noted that hearsay, such as an arrest affidavit, is admissible in a violation of probation hearing, a finding of violation of probation cannot be supported by hearsay alone. See Davis v. State, 831 So.2d 792, 793 (Fla. 5th DCA 2002). The State argues that it presented some non-hearsay testimony at the hearing and therefore sufficient evidence supported the finding that Crawford violated probation. The State points to the alleged victim's testimony that she was in a relationship with Crawford and the couple was involved in an altercation on the night in question. However, the State conflates an altercation with the commission of a battery. Giving the word its ordinary meaning, an altercation is "[a] vehement dispute; a noisy argument." Altercation , Black's Law Dictionary (10th ed. 2014). Describing the incident as an altercation does not equate to the commission of a battery. To the contrary, the victim denied any physical contact with Crawford on the evening in question.

Although the non-hearsay testimony need not independently establish a charged violation, the alleged victim's testimony fails to sufficiently support the charged violations in this case. See Kalmbach v. State, 988 So.2d 1279, 1280 (Fla. 5th DCA 2008) (noting that "non-hearsay evidence does not have to independently establish the probation violation; it need only support the hearsay evidence" (citing Russell v. State, 982 So.2d 642, 646 (Fla. 2008) ) ). While the trial court was free to find the alleged victim's testimony unworthy of belief, it was incumbent upon the State to present some evidence other than hearsay to prove its allegations. The State failed to carry that burden. Had the State presented the responding officers' testimony, rather than only the investigative documents, the result in this case might have been different. See Russell, 982 So.2d at 647.

REVERSED and REMANDED.

BERGER and LAMBERT, JJ., concur.

      The State's exhibit was labeled, "Orlando PD Offender compact package, Field Report, and associated pictures." However, no pictures are included in the record.


text:
    Dolores BALABAN, Petitioner, v. PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Respondents.
    No. 4D17-2479
    District Court of Appeal of Florida, Fourth District.
    April 18, 2018
    Juan P. Bauta, II, and James L. Ferraro of The Ferraro Law Firm, Miami, for petitioner.
    Frances Daphne O'Connor and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for respondent Philip Morris USA Inc.
    Jason T. Burnette of Jones Day, Atlanta, GA, for respondent R.J. Reynolds Tobacco Company.
    ON MOTIONS FOR REHEARING AND MOTION FOR CLARIFICATION
   Per Curiam.

We grant respondents' motions for rehearing. We further vacate our order denying petitioner's motion for clarification and grant that motion. As a result, we are withdrawing our original opinion and substituting the following opinion.

Dolores Balaban seeks certiorari review of a trial court order granting a motion to disqualify the Ferraro Law Firm ("the Ferraro firm") from representing her in a pending civil action against Philip Morris USA, Inc. (PM USA) and R.J. Reynolds Tobacco Company (RJR). Certiorari lies to review this order granting disqualification. See Philip Morris USA Inc. v. Caro , 207 So.3d 944, 949 (Fla. 4th DCA 2016).

The trial court granted the motion based on this Court's recent decision in Caro , where we quashed a trial court order denying PM USA's motion to disqualify the Ferraro firm and its attorney Paulo Lima ("Attorney Lima"). Id. at 951. However, the circumstances in this case distinguish it from Caro and compel an expanded analysis, potentially including application of a different provision of the Rules Regulating the Florida Bar. The trial court departed from the essential requirements of law in finding Caro dispositive, in failing to hold an evidentiary hearing to make the required findings of fact, and in failing to rule on the issue of RJR's standing to join in the motion to disqualify. We thus grant the petition, quash the trial court's order, and return the case to the trial court for further proceedings consistent with this opinion.

Briefly stated, petitioner sued PM USA, RJR, and other defendants in 2014 in one of many Engle - progeny cases involving cigarette smokers who suffered injury or died. PM USA moved to disqualify Attorney Lima and the Ferraro firm from representing petitioner, alleging that Attorney Lima had previously represented PM USA while employed by Hunton & Williams, LLP ("the Hunton firm") from 2005-15. The motion to disqualify included allegations that Attorney Lima billed more than 1,500 hours on PM USA matters including more than 1,300 hours defending PM USA in smoking and health litigation while working at the Hunton firm, with nearly 375 hours spent specifically on Engle tobacco-related issues. PM USA also alleged Attorney Lima had access to PM USA's litigation databases and had reviewed its internal documents, including those that were highly confidential and privileged. PM USA therefore claimed Attorney Lima and the Ferraro firm had an impermissible conflict of interest precluding representation of petitioner as the plaintiff in this case against it. RJR joined in the motion.

The motion cited Rule Regulating The Florida Bar 4-1.10(b) on imputation of conflicts of interest, which provides as follows:

(b) Former Clients of Newly Associated Lawyer . When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

Petitioner pointed out in her opposition to this motion that Attorney Lima had terminated his nearly two-year employment with the Ferraro firm shortly before the motion to disqualify was heard in this case. She argued that this event distinguished the facts in this case from those in Caro . In Caro , this Court concluded that Attorney Lima's "extensive prior representation of PM [USA] in defending and strategizing about Engle progeny cases" while with the Hunton firm was "substantially related to at least some of the issues" in Caro's lawsuit against PM USA. Caro , 207 So.3d at 949. We applied Rule 4-1.10(b) and concluded that the movant, PM USA, had demonstrated that Attorney Lima had "actual knowledge of material confidential information." Id. at 950. We then ruled that the plaintiff's attorney in that case had not met the burden to prove that Attorney Lima had not actually acquired such information, and the trial court was directed to grant PM USA's motion for disqualification of the Ferraro firm. Id. at 950-51.

In the instant case, Petitioner argued that because Attorney Lima was no longer associated with the Ferraro firm at the time the motion to disqualify was heard, this was no longer a case involving a former client of a newly associated lawyer. Rather, the case now involved the client of a formerly associated lawyer and therefore Rule 4-1.10(c) controlled. That Rule provides as follows:

(c) Representing Interests Adverse to Clients of Formerly Associated Lawyer. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

R. Regulating Fla. Bar. 4-1.10(c). Petitioner contended that the Ferraro firm could not be disqualified under this Rule unless the firm had PM USA's or RJR's confidential, material information. She presented deposition testimony and affidavits stating that no confidential information from Attorney Lima's previous work at the Hunton firm had been provided to any lawyer or other employee of the Ferraro firm.

PM USA pointed out that Attorney Lima was employed by the Ferraro firm for approximately two years after leaving the Hunton firm, including nearly a full year after PM USA had filed its motion to disqualify. PM USA argued that if a law firm could hire a conflicted lawyer and allow that lawyer to work on cases while the lawyer's disqualification was being litigated, and only terminated the lawyer after the latter's disqualification in another case, that would constitute an improper evasion of the Rules Regulating The Florida Bar and would create the appearance of impropriety.

Petitioner also argued that RJR lacked standing to join in PM USA's motion to disqualify because it had no privity with Attorney Lima or the Ferraro firm. RJR countered that its "joint defense" relationship with PM USA conferred standing, and alleged that Attorney Lima had access to RJR's confidential information while he was an associate at the Hunton firm. In support of its position, RJR cited State Farm Mutual Automobile Insurance Co. v. K.A.W. , which recognized that "someone other than the client may request disqualification" where a conflict of interest "is such as clearly to call in question the fair or efficient administration of justice." 575 So.2d 630, 632 (Fla. 1991) (quoting R. Regulating Fla. Bar 4-1.7 cmt.).

The trial court held a non-evidentiary hearing on the motion to disqualify and concluded that Caro required it to grant the motion to disqualify the law firm in this case. In its written order, the court expressly rejected petitioner's argument that Caro no longer controlled because Attorney Lima had left the Ferraro firm. The court failed to address whether RJR had standing to join in PM USA's motion.

Orders on motions to disqualify are reviewed for abuse of discretion. Florida courts have held that disqualification of counsel "is an extraordinary remedy and should only be resorted to sparingly." Manning v. Cooper , 981 So.2d 668, 670 (Fla. 4th DCA 2008) (quoting Alexander v. Tandem Staffing Sols., Inc. , 881 So.2d 607, 608 (Fla. 4th DCA 2004) ); see also Vick v. Bailey , 777 So.2d 1005, 1007 (Fla. 2d DCA 2000). "It is well settled that disqualification of a party's chosen counsel is (1) a harsh and drastic remedy, (2) should be resorted to sparingly, and (3) must find its basis in counsel's violation of some rule of law or breach of the Code of Professional Responsibility resulting in an unfair advantage." Kusch v. Ballard , 645 So.2d 1035, 1040 (Fla. 4th DCA 1994) (Stevenson, J., concurring in part and dissenting in part) (citing Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986) ).

While we recognize that imposing the remedy of disqualification may "abrogate important societal rights, such as the right of a party to his counsel of choice and an attorney's right to freely practice her profession," FDIC v. U.S. Fire Ins. Co. , 50 F.3d 1304, 1314 (5th Cir. 1995), courts should not hesitate to disqualify an attorney where the circumstances justify such a severe remedy. "Disqualification, where appropriate, ensures that the case is well presented in court, that confidential information of present or former clients is not misused, and that a client's substantial interest in a client's loyalty is protected." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 6 cmt. i (2000).

We agree with petitioner that Caro , standing alone, is not dispositive because that case involved a request to disqualify an attorney still employed at the firm. Since Attorney Lima is no longer employed at the Ferraro firm, we need not decide whether the findings made by the trial court in Caro apply here to impose per se disqualification of the law firm under Rule 4-1.9. Because motions to disqualify must be decided on their own facts and circumstances, a court must take care to balance the interest of protecting the integrity of the judicial process against the right of a party to have the counsel of its choice. Although there may be certain judicially established facts from Caro that are applicable in the consideration of this matter, it is nonetheless the duty of the trial judge to consider them, along with other relevant facts, for the purpose of making appropriate findings and satisfying due process requirements. See Akrey v. Kindred Nursing Ctrs. E., L.L.C. , 837 So.2d 1142, 1146 (Fla. 2d DCA 2003) (quashing disqualification order where "the trial court departed from the essential requirements of law by reaching its conclusion without conducting an evidentiary hearing" (quoting Simon DeBartolo Grp., Inc. v. Bratley , 741 So.2d 1254, 1254 (Fla. 1st DCA 1999) ) ).

An evidentiary hearing is required in this case to examine the matters dealt with by Attorney Lima during his tenure at the Ferraro firm and the depth of his involvement. Disqualification of the Ferraro firm under Rule 4-1.10(b) would be appropriate should the trial court find that Attorney Lima had significant involvement with Engle -progeny litigation/appeals while with the Ferraro firm and that he remained employed by the firm once it knew or should have known of the potential for disqualification. The Rules Regulating The Florida Bar, in general, indicate that the firm (not merely the attorney) should be disqualified from representing a client in a matter after the firm is put on notice of a conflict (as described in the Rules) involving the attorney and the opposing party. The Rules expressly consider both the attorney and law firm to be one and the same in terms of imputing disqualification. See R. Regulating Fla. Bar 4-1.10 cmt. ("Such situations can be considered from the premise that a firm of lawyers is essentially 1 lawyer for purposes of the rules governing loyalty to the client or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.").

On the other hand, in a situation where the conflicted attorney had little or no involvement with the matter or matters that created the conflict, had little contact with other firm attorneys working on them, and was then terminated shortly after the conflict came to the attention of the firm, Rule 4-1.10(b), standing alone, would not require the firm's disqualification from the ongoing case. See Nissan Motor Corp. in U.S.A. v. Orozco , 595 So.2d 240, 241 (Fla. 4th DCA 1992) (remanding for application of Rule 4-1.10(c) and noting that the conflicted attorney had little involvement with the matter at issue at his new firm and the new firm terminated the conflicted lawyer "[a]s a result of the filing of the disqualification motion"). If the trial court on remand determines that the instant case is similar to Nissan and that Attorney Lima had little involvement with tobacco litigation beyond defending against disqualification motions during his tenure at the Ferraro firm, then the trial court must turn its attention to Rule 4-1.10(c) and make the appropriate inquiry and factual findings under that portion of the Rule.

Therefore, we grant the petition for writ of certiorari, quash the order granting disqualification, and return the case to the trial court for further proceedings consistent with this opinion. On remand, the trial court shall also address the issue of whether RJR has standing to join in PM USA's motion to disqualify.

Damoorgian, Forst and Klingensmith, JJ., concur.

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006).

      Nissan is distinguishable from the instant case, as the attorney in Nissan "handled rather routine and perfunctory assignments as a junior associate" and "never acquired confidential and other protected information during his former employment." Nissan Motor Corp. , 595 So.2d at 241 (quoting the trial court's order in that case).


text:
    Jeffrey KRISE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2809
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    James S. Purdy, Public Defender, and Kristen D. Dukes, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Reinpold , 284 Neb. 950, 824 N.W.2d 713, 723 (2013) (holding that although the State must "make the judgment as to whether to present expert testimony regarding the age of actors in alleged child pornography, it is a question of fact for the jury to decide whether the actors in alleged child pornography are under the age of 18" and noting that the "State may indeed risk losing the case by not presenting expert testimony regarding such, but ultimately, it is for the jury to decide, with or without an expert's opinion, whether the evidence exhibits child pornography").

LAMBERT, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Kenneth E. RICKERSON, Appellant, v. J. D. PEACOCK II, Clerk of Court, Appellee.
    No. 1D17-3253
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Kenneth Rickerson, pro se, Appellant.
    Kyle S. Bauman of Anchors, Smith, Grimsley, Fort Walton Beach, for Appellee.
   Per Curiam.

DISMISSED. See Augustin v. Blount , 573 So.2d 104 (Fla. 1st DCA 1991) (noting that the Appellant's proper course is to request entry of a final order which may be appealed).

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


text:
    James Daniel JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3009
    District Court of Appeal of Florida, First District.
    April 20, 2018
    James Daniel Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges the denial of two motions to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse for further proceedings on Appellant's argument that the written judgment conflicted with the oral pronouncement of his sentence. As to the remaining claims in both motions, we affirm.

Appellant's September 10, 2014 motion argued that the trial judge did not orally pronounce a 10-year mandatory minimum sentence as a habitual violent felony offender (HVFO), although such a sentence was discussed during the sentencing hearing. Appellant claimed that the written judgment reflected the minimum mandatory sentence without its having been orally pronounced, in violation of Ashley v. State , 850 So.2d 1265, 1268 (Fla. 2003) (adhering to "long-standing principle of law-that a court's oral pronouncement of sentence controls over the written document").

The trial court attached several records to its unelaborated order denying Appellant's 3.800(a) motion, concluding that the attached records refuted all of Appellant's claims. The records attached to the order confirm that Appellant was placed on notice of the state's intent to seek HVFO enhancement with a ten-year minimum-mandatory sentence, and that the written judgment included such a sentence. The records do not, however, include any transcripts of the sentencing hearing, and we are unable to determine if any such transcripts exist. Without any evidence of what the trial judge orally pronounced at sentencing, we are unable to conclude that Appellant's claim is meritless. We therefore reverse the denial of this claim and remand for the lower court to determine whether the court file contains sentencing transcripts to resolve this claim. See Taylor v. State , 145 So.3d 948, 949 (Fla. 1st DCA 2014) (citing Williams v. State , 957 So.2d 600, 603 (Fla. 2007) ). If not, Appellant's motion should be denied without prejudice to his filing an amended motion attaching the sentencing transcripts. See id.

REVERSED in part and AFFIRMED in part.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.