author: LaROSE, Chief Judge.

text:
    Tyrone M. DEVLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2479
    District Court of Appeal of Florida, Second District.
    Opinion filed August 4, 2017
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Tyrone Devlin, Jr., appeals his judgment and sentences following the jury’s return of guilty verdicts for burglary (count 1) and petit theft (count 2). We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm Mr. Devlin’s judgment and sentences but remand for correction of several scrivener’s errors pertaining to count 2.

Despite being found guilty on count 2 of the lesser included offense of misdemeanor petit theft, the judgment incorrectly reflects that Mr. Devlin was convicted in count 2 of the charged offense of grand theft, a third-degree felony. See Samudio v. State, 460 So.2d 418, 419 (Fla. 2d DCA 1984) (“[T]he court’s judgment must conform to the jury’s verdict.” (citing Hicks v. State, 411 So.2d 1025 (Fla. 2d DCA 1982))). Further, although the sentencing transcript reflects that the trial court imposed a time-served disposition on count 2, the written sentence indicates that he received a ten-year prison term. See §§ 775.082(4)(a) (authorizing a term of imprisonment not exceeding one year for a first-degree misdemeanor); 812.014(2)(e), Fla. Stat. (2015). Consequently, remand is required to ensure that the written sentence comports with the trial court’s oral pronouncement. See Rivera v. State, 117 So.3d 449, 449 (Fla. 2d DCA 2013) (“Because the written sentences do not comport with the trial court’s oral pronouncement, we must remand for correction of the written sentences to reflect the oral pronouncement.”).

Because correction of these scrivener’s errors is a ministerial act, Mr. Dev-lin’s presence is not required. See Wolcoff v. State, 197 So.3d 111, 112 (Fla. 1st DCA 2016).

Affirmed; remanded to correct scrivener’s errors.

NORTHCUTT and KELLY, JJ., Concur.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Timothy Eugene ALEXANDER, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1437
    District Court of Appeal of Florida, Second District.
    Opinion filed August 4, 2017.

      James A. Ermacora, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Timothy Eugene Alexander, Jr., appeals the judgment and sentences rendered after a jury found him guilty of resisting an officer with violence and criminal mischief. Mr. Alexander represented himself at trial and at the subsequent sentencing hearing. Because the trial court failed to renew the offer of assistance of counsel before sentencing Mr. Alexander, we vacate the sen-tenees and remand for resentencing. As to the remaining issues raised by Mr. Alexander, we find no reversible error and affirm.

The charges stem from an incident that occurred while Mr. Alexander was in custody in the Hendry County jail. Mr. Alexander was examined by EMS personnel after complaining of chest pains, and it was determined that Mr. Alexander did not need to be transported to the hospital. Mr. Alexander was told to return to his cell but he refused, insisting that he needed to go to the hospital. Correctional officers attempted'to escort him to his cell, but he did not cooperate. The situation escalated when Mr. Alexander struggled against the officers’ efforts to carry him to his cell, resulting in charges of resisting an officer with violence and criminal mischief.

Mr. Alexander elected to represent himself at trial following a Faretta inquiry. At the conclusion of the trial but' prior to sentencing, Mr. Alexander stated that he no longer wished to represent himself. The trial judge instructed the clerk to prepare an order “appointing counsel for Mr. Alexander. He has apparently now indicated that he.would like to have counsel on the remainder of his cases.” Mr. .Alexander had multiple cases pending at the time. It appears that the trial court may have understood Mr. Alexander’s comment to apply only to his other cases, though the statement was not limited or qualified. A sentencing hearing took place on March 4, 2016. Mr. Alexander was not represented at that hearing, nor was he offered the assistance of counsel.

Once a defendant chooses to represent himself, the trial court must eon-duct a colloquy to ensure that the defendant is making a knowing and voluntary waiver' of counsel. Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla. 2009). If a waiver of counsel is.accepted"at any stage of the proceedings, the offer of assistance of counsel must be renewed by the court at each subsequent critical stage of the.proceedings, and it is well settled that sentencing is a critical stage. Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999) (“Sentencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even, if the defendant has previously waived counsel.”); see also Ingraham v. State, 32 So.3d 761, 768-69 (Fla. 2d DCA 2010). “Failure to renew the offer of counsel at a: critical stage. and conduct a Faretta inquiry if the defendant rejects the renewed offer is per se reversible error." Brooks v. State, 180 So.3d 1094, 1096 (Fla. 1st DCA 2015) (quoting Howard v. State, 147 So.3d 1040, 1043 (Fla. 1st DCA 2014)).

A sentencing hearing was held on March 4, 2016, and Mr. Alexander again appeared pro se. The trial court was required to renew the offer of counsel prior to proceeding with sentencing, and the trial court’s failure to do so amounts to per se error requiring resentencing.

■ Judgment affirmed; sentences vacated; case remanded.

CRENSHAW and SALARIO, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . While the State contends on appeal that Mr. Alexander may have had standby counsel, the only reference to standby counsel was in the context of an unrelated case for which Mr. Alexander had yet to go to trial. There is no other reference to standby counsel in the transcript or disposition form, both of which reflect that Mr. Alexander appeared pro se.


author: BLACK, Judge.

text:
    Sheddrick Jubree BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3855
    District Court of Appeal of Florida, Second District.
    Opinion filed August 4, 2017

      Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   BLACK, Judge.

Sheddrick Brown, Jr., entered a negotiated plea to carrying a concealed firearm, resisting a law enforcement officer with violence, battery on a law enforcement officer, and resisting a law enforcement officer without violence. He challenges the denial of his motion to suppress, which the trial court ruled was dispositive only as to the carrying a concealed firearm charge. Because Brown was unlawfully detained and officers had no probable cause to believe that Brown was armed, we reverse the conviction for carrying a concealed firearm.

Testimony at the suppression hearing established that officers saw Otis March-man, a known violent offender, outside of a house at 9th Street and Lemon Street around 5 p.m. Marchman was with another man, later identified as Brown. After being advised that Marchman had been seen at the house, two different officers drove by the house, slowed, and heard a man and a woman tell Marchman and Brown to leave the property. The officers then pulled into the driveway of the property to investigate “what could have been trespassing.” By the time the officers were pulling into the driveway, Marchman and Brown had begun walking down the driveway, away from the house, toward the sidewalk and off the property. Less than a minute later a third officer arrived at the house.

Although Marchman was known to the officers, they did not recognize Brown. The officer who engaged Brown testified that Brown volunteered his identification and was very cooperative immediately. Once the officer saw Brown’s identification, he recalled that Brown had been the victim of a shooting incident weeks prior. While the officer still held Brown’s identification, Brown was looking over the officer’s shoulder, not making eye contact, but both of Brown’s hands were visible. At that point the officer decided that both men should be patted down for weapons. The officer testified that he did not see anything to make him think Brown was armed: “I didn’t see any bulge, I didn’t see any, anything that overt, that would have led me to believe that he was armed. Just instincts ... you just develop certain sixth senses.”

The officer told Brown: “I’m just gonna pat you down for weapons. Go ahead and put your hands on your head and turn around. You’re not under arrest. ... I’m not detaining you.” The officer testified that Brown did not respond to the request so the officer said again, “look, I need you to turn around, put your hands on your head.” Brown slowly turned around, apparently attempting to stall complying with the officer’s order. So the officer grabbed Brown’s hands and told him to put his hands on top of his head, but “as soon as [the officer] grabbed his hands, and moved them to the top of his head, [Brown] took off and bolted away.”

In his suppression motion, Brown alleged that officers had no basis upon which to detain him and that they lacked probable cause to pat him down for weapons. The trial court correctly summarized that the motion to suppress could have been granted on either of two bases: first, because the officers lacked reasonable suspicion that a crime had been committed in order to detain Brown or conduct an investigatory stop; or second, because the officers lacked probable cause to believe that Brown was armed with a weapon. In denying the motion, the court found both that Brown was legally detained based on the reasonable suspicion that he had committed a trespass and that officers had probable cause to suspect that Brown was armed. Given the evidence presented at the hearing, the trial court’s rulings were incorrect on both bases.

In reviewing the denial of a motion to suppress, we defer to the trial court’s factual findings provided that they are supported by competent substantial evidence; we review the application of the law to those facts de novo. Moore v. State, 200 So.3d 1290, 1291-92 (Fla. 2d DCA 2016). Here, the factual findings of the court are not in dispute; the issues before this court are whether officers had reasonable suspicion to detain Brown and, if so, whether they also had probable cause to believe Brown was armed.

We are neither asked to nor do we make a determination as to whether the encounter at issue began as consensual. We note, however, that if—as the officer testified—Brown was not being detained, he was free to leave and could choose to comply with or ignore the officer’s request. See State v. Albert, 193 So.3d 7, 10 (Fla. 5th DCA 2016) (citing Popple v. State, 626 So.2d 185, 186 (Fla. 1993)); Slydell v. State, 792 So.2d 667, 673 (Fla. 4th DCA 2001). There appears to be no dispute that by the time the officer grabbed Brown’s hands and Brown had twice been directed to turn around and put his hands on his head the encounter was not consensual but rather an investigatory stop. See Voorhees v. State, 699 So.2d 602, 608 (Fla. 1997); see also Slydell, 792 So.2d at 673 (“Without question, when the officers gave chase and subdued appellant, the encounter ceased being consensual and progressed to a stop or ‘seizure.’ ” (quoting Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). For such a stop to be lawful, reasonable suspicion justifying the detention must exist; that is, “the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” B.G. v. State, 213 So.3d 1016, 1018 (Fla. 2d DCA 2017) (alteration in original) (quoting O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010)). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Id. (quoting A.T. v. State, 93 So.3d 1159, 1160 (Fla. 4th DCA 2012)).

In denying the motion to suppress, the trial court ruled that “[t]he initial detention of Brown was supported by reasonable suspicion that he had committed the crime of trespass, which does not require a prior warning by anyone.” However, section 810.09, Florida Statutes (2015), clearly requires “notice against entering or remaining” to have previously been given. § 810.09(l)(a)(l), (2)(b); see also Moore, 200 So.3d at 1292 (“[S]ection 810.09(l)(a) ‘requires that notice be given before a person can be guilty of trespassing on property other than a structure or conveyance.’ ” (quoting S.N.J. v. State, 17 So.3d 1258, 1259 (Fla. 2d DCA 2009))); D.T. v. State, 87 So.3d 1235, 1239 (Fla. 4th DCA 2012) (“To be guilty of trespass on property other than a structure or conveyance, appellant must have been given notice against entry.”). Unless prior notice or warning against trespass has been given, an officer does not have the legal authority to arrest an individual for trespass. Gestewitz v. State, 34 So.3d 832, 834 (Fla. 4th DCA 2010). Nor can an officer conduct an investigatory stop in the absence of specific, articulable facts supporting a reasonable suspicion that the individual has committed or is about to commit a crime, whether it be trespass or another crime. See Musallam v. State, 133 So.3d 568, 569 (Fla. 2d DCA 2014).

There were no facts or circumstances supporting a reasonable suspicion that Brown had committed a trespass or any other crime. The officers testified that their purpose for stopping Brown and Marchman was to investigate trespassing. • However, an individual’s mere presence on the property—without more—does not give rise to a reasonable suspicion of trespass so as to justify a detention. Collins v. State, 115 So.3d 1040, 1043-44 (Fla. 4th DCA 2013). And the facts established at the suppression hearing’ were that Brown and Marchman had been directed by the residents to, leave the property and that they were complying with the directive; officers engaged them as they were walking away from the house and toward the street. Cf. § 810.09(2)(b) (“If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person ... the offender commits a misdemeanor of the first degree ..,.”); Rodriguez v. State, 29 So.3d 310, 313 (Fla. 2d DCA 2009) (concluding that officer responding to call to have Rodriguez removed from residence had reasonable suspicion to believe that Rodriguez had already commit-’ ted the offense of trespass because she had defied the residents’ order to leave or had reentered the residence without authorization). The officers had no reasonable suspicion to' detain Brown, and Brown’s detention was therefore unlawful. See B.G., 213 So.3d at 1018; see also Palmer v. State, 112 So.3d 606, 608 (Fla. 4th DCA 2013) (‘‘[Bjecause the officer did not recognize the defendant as someone who had previously been warned, he lacked legal authority to stop the defendant for trespass. Without reasonable suspicion, the State failed to prove' the officers were engaged in the lawful execution of a legal duty when the defendant fled.”). The trial court erred in denying the motion to suppress on' the basis that the officers had reasonable suspicion that Brown had committed the crime of trespass.

Nonetheless, even- had there been a founded, reasonable suspicion to detain Brown, that suspicion, in and of itself, would not have justified a pat-down search pursuant to section 901.151, Florida Statutes (2015). See McCloud v. State, 787 So.2d 218, 219 (Fla. 2d DCA 2001). “A valid stop does not necessarily mean that there can be a valid frisk.” State v. Dickey, 203 So.3d 958, 961 (Fla. 1st DCA 2016) (quoting State v. Webb, 398 So.2d 820, 822 (Fla. 1981)). Pursuant to Terry, an officer may validly frisk or “conduct a pat down to find weapons that he reasonably believes or suspects are then in possession of. the person whom he has stopped.” Id. (quoting Webb, 398 So.2d at 822). That is, “[f]or a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous.” Dawson v. State, 58 So.3d 419, 422 (Fla. 2d DCA 2011) (emphasis added). Therefore, officers here needed reasonable suspicion that Brown was armed with a dangerous weapon in order to pat him down. See id.

"The officer who attempted to pat down Brown testified: “I didn’t see any bulge, I didn’t see any, anything that overt, that would have led me to believe that he was armed. Just instincts .,. you just develop certain sixth senses.” The officer later referred to his instincts as being right— Brown was armed. “But even though the facts of this case reveal an alarming result of the pat-down—a gun—we are not permitted to be distracted by- the fruit of the search. Ihstead, our focus must be on the justification for the search.” Dawson, 58 So.3d at 421.

Contrary to the trial court’s finding that it was “appropriate and lawful for law enforcement officers to consider the behavior of the defendant’s companion, as well as the prior criminal record of the defendant’s companion,” the analysis does not change merely because Brown was' with Marchman, a known violent offender. Association alone is insufficient to justify a pat-down search. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, -without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable' cause .to search or seize another or to search the premises where the person may happen to be,” (citation omitted)); cf. Maryland v. Pringle, 540 U.S. 366, 373, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (distinguishing Ybarra and its conclusion “that the search warrant did not permit body searches of all of the tavern’s patrons and that the police could not pat down the patrons for weapons, absent individualized suspicion” (emphasis added)).

In J.B. v. State, 679 So.2d 1296, 1297 (Fla. 2d DCA 1996), this court concluded that the pat down of the defendant was improper where the only information' officers had was that a suspect standing near the defendant had a significant amount of cocaine on his person and that when the officers approached the men, the defendant put his hands in his pockets and stepped back. Similarly, a passenger who is detained as the result of a lawful vehicle stop may not be patted down for weapons until and unless the officer reasonably suspects the passenger is armed and dangerous. Presley v. State, 204 So.3d 84, 89 (Fla. 1st DCA 2016) (citing Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)). And this is not a case where the officers were investigating a violent crime. Cf. State v. Hunter, 615 So.2d 727, 732 (Fla. 5th DCA 1993) (“A reasonable suspicion of commission of a crime of violence, a robbery, in and of itself validates a patdown for weapons.”).

Although we conclude that the trial court erred in applying the law with regard to when a defendant may be patted down for weapons, to the extent the trial court found that a pat down would have been lawful independent of Brown’s connection to Marchman, those findings are not supported by competent substantial evidence. There were no objective facts identified as providing a basis to conduct a pat-down search of Brown; there was simply no probable cause articulated.

We reverse the conviction and sentence for carrying a concealed firearm. We affirm the remaining convictions and sentences as no errors were preserved for review by this court. However, because the plea was negotiated as to all charges, we remand with instructions to allow Brown, if he chooses, to withdraw his plea on the remaining charges. See Hicks v. State, 852 So.2d 954, 961 (Fla. 5th DCA 2003).

Affirmed in part; reversed in part; remanded.

VILLANTI and SALARIO, JJ., Concur.

      ,' The suppression motion was determined to be dispositive only as to the firearm charge, and Brown has not challenged that ruling. We note that the motion did not seek dismissal of any of the other charges for which the validity of the stop may be a factor.


author: EVANDER, J.

text:
    Andrew Alexis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2616
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017

      Keith Peterson, of Law Offices of Peterson, P.A., Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Andrew Rodriguez appeals his convictions for escape and tampering with an electronic monitoring device. We affirm, without discussion, Rodriguez’s tampering conviction, but we reverse his conviction for escape. Rodriguez’s failure to return from his one-day pretrial furlough did not constitute escape as defined in section 944.40, Florida Statutes (2014).

Rodriguez was a prisoner in the Volusia County Branch Jail awaiting trial on several criminal charges. On October 2, 2014, the trial court granted his request for a furlough to attend his daughter’s funeral. Several conditions were imposed as part of the. furlough order. Rodriguez was required to wear a GPS monitor at all times and to submit a urine sample upon his return. He was permitted to “go to the funeral, the reception, spend time with family at homes, and that’s it.” He was prohibited from consuming alcohol or drugs and was required to return to the jail within twenty-four hours. On October 4, 2014, a pretrial services officer placed a functioning GPS monitoring device on Rodriguez’s ankle, and Rodriguez was released from the jail. He was not accompanied by a law enforcement officer during his furlough.

Rodriguez failed to comply with the trial court’s furlough order. He intentionally removed the GPS monitor the following day and failed to timely return to the jail. He was subsequently apprehended on October 6, 2014, after attempting to flee from pursuing officers.

Rodriguez was charged by information with escape and tampering with an electronic monitoring device. The escape count alleged that Rodriguez, “while a prisoner lawfully confined in, or while being transported to or from [a] Volusia County Branch Jail, did escape or attempt to escape from such confinement, contrary to Florida Statutes 944.40 and 951.24(4).” Rodriguez moved to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), arguing that because he was not confined while on furlough, he could not have committed an escape.

The State subsequently filed an amended information alleging the same two counts but changing the specifics of the escape charge. The amended information alleged that Rodriguez, “while being a prisoner of the Volusia County Branch Jail out on furlough, did escape or attempt to escape from such confinement by failing to return to his place of confinement within the time prescribed, contrary to Florida Statutes 944.40 and 951.24(4).” Rodriguez’s motion to dismiss was denied and the case proceeded to trial.

At trial, Rodriguez moved for judgment of acquittal after the State rested its case. He again argued that the facts did not support an escape conviction. The trial court denied the motion, and the jury found Rodriguez guilty as charged. He was sentenced to five years in prison on each count, to run consecutively. Rodriguez timely appealed.

Section 944.40 provides:

Any prisoner confined in any prison, jail, private correctional facility, road camp, or other penal institution, whether operated by the state, a county, or a municipality, or operated under a contract with the state, a county, or a municipality, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement commits a felony of the second degree .... The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

Because Rodriguez was not “confined in ... jail,” “working upon the public roads,” or “being transported to or from a place of confinement,” his conviction can only be upheld on a theory of extended confinement. The meaning of “confinement” for purposes of the escape statute has been extended by the legislature to include situations in which a prisoner is not physically present in prison or jail. Section 945.091, Florida Statutes (2014), authorizes the Department of Corrections to adopt rules “permitting the extension of the limits of the place of confinement” for “attending the funeral of a relative,” among other events. Section 951.24, Florida Statutes (2014), extends the limits of confinement for county prisoners to attend, inter alia, work-release, educational, and vocational training programs. However, these statutes are not helpful to the State because, by their express language, they only apply to prisoners who have been sentenced. §§ 945.091, 951.24, Fla. Stat. (2014); see also Pumphrey v. State, 527 So.2d 1382, 1384 (Fla. 1988) (“Nor do the provisions of sections 945.091 and 951.24, Florida Statutes (1985), which extend the definition of confinement to cover furloughs and work release programs, apply. These sections pertain only to certain prisoners who have been sentenced.”).

In Johnson v. State, 357 So.2d 203 (Fla. 1st DCA 1978), our sister court utilized a theory of extended confinement to apply the escape statute to a prisoner who was not physically in jail or prison and who did not fit within one of the aforesaid statutory “extended confinement” provisions. There, Johnson had been arrested and taken to the county jail. Id. at 204. During the booking process he became ill and was escorted by police from the jail to the hospital, where he escaped. Johnson was later charged with escape. Id. He appealed his escape conviction, arguing that he did not escape from the confinement of the county jail. Id. The First District Court of Appeal affirmed, stating: “We do not believe the term ‘confinement’ [as used in section 944.40] is narrowly limited to the actual physical presence in the jail.” Id. The court concluded that because Johnson had been “committed to the jail and was in the lawful custody of the jail,” his confinement extended to the hospital from which he escaped. Id.

However, in Pumphrey, the Florida Supreme Court held that a pretrial detainee could not be convicted for escape under section 944.40 for failing to timely return to jail after being granted a furlough. Pumphrey, 527 So.2d at 1384. Pumphrey was a jail inmate awaiting sentencing on felony charges. Id. at 1383. The trial court granted him a twenty-four-hour furlough to gather firewood for his grandmother. Id. Pumphrey failed to timely return from his furlough and was later convicted of escape. Id. On appeal, Pumphrey argued that upon the granting of his furlough request, he was not a prisoner as defined in section 944.40, but rather a pretrial detainee released on his own recognizance for a limited period of time. Pumphrey v. State, 512 So.2d 1018, 1019 (Fla. 1st DCA 1987). The First District Court of Appeal disagreed and, in reliance on Johnson, found that his confinement was “not limited to his actual presence in the Leon County Jail, but extended for a 24-hour period to include the area of his grandmother’s house, from which he unlawfully escaped.” Id. at 1020.

The Florida Supreme Court reversed. The court observed that although sections 945.091 and 951.24 extended the definition of confinement in certain circumstances, those sections pertained only to prisoners who had been sentenced. Pumphrey, 527 So.2d at 1384. The court then concluded that Pumphrey’s actions did not constitute escape because he was a pretrial detainee who had failed to appear following a pretrial release:

Pumphrey did not escape when he failed to return from helping his grandmother. There was nothing for him to escape from. He did not escape from the physical presence of a policeman, or from the confines of a restricted environment, or from a sentence that had to be served. Pumphrey simply failed to appear following pretrial release, which is punishable under section 843.15, Florida Statutes (1985).[]

Id. The court further found that Johnson was distinguishable on three points. First, Johnson was released from the jail “informally” without a court order. Second, when he left jail, Johnson was escorted by a police officer. Id. Third, Johnson escaped from a restrictive environment—a hospital. Id. Here, it is undisputed that Rodriguez, like Pumphrey, was released from jail pursuant to a court order and was not escorted by a law enforcement officer. The trial court concluded that Pumphrey was distinguishable because Rodriguez was “confined” by: 1) the use of a GPS monitoring device; and 2) the trial court’s instructions that Rodriguez was only permitted to “go to the funeral, the reception, spend time with family at homes, and that’s it.” However, the restrictions placed on Rodriguez do not change the fact that like Pumphrey, Rodriguez was not a prisoner “confined in jail,” but rather a pretrial detainee who “failed to appear following pretrial release.”

The power to penalize certain acts is within the province of the legislature, not the courts. Baker v. State, 636 So.2d 1342, 1344 (Fla. 1994). Although the legislature has expressly provided in section 945.091 that the failure to timely return from a furlough by a Department of Corrections prisoner could support a conviction for- escape under section 944.40, it has not enacted a similar statute for pretrial detainees. Accordingly, on remand, we direct the trial court to vacate Rodriguez’s conviction for escape.

AFFIRMED, in part; REVERSED, in part; and REMANDED..

COHEN, C.J. and TORPY, J., concur.

      . Section 843.15, Florida Statutes (2014), provides, in relevant part:
      (1) Whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for her or his release and, in addition, shall:
      (a) If she or he was released in connection with a charge of felony or while awaiting sentencing or pending review by certiorari after conviction of any offense, be guilty of a felony of the third degree, ....
      (Although the supreme court suggested that Pumphrey could be charged under section 843.15, the statute only expressly references failure to appear "before any court or judicial officer.”) We also observe that courts are authorized to utilize criminal contempt proceedings to vindicate the authority of the court or to punish for an intentional violation of an order of the court. See Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985).


author: PER CURIAM.

text:
    Mario Jerome WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1760
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    Paula C. Coffman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincentr-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the order granting in part and denying in part his Florida Rule of Criminal Procedure 3.850 motion based upon the allegation that his sentence did not conform to the plea agreement. The trial court granted relief by amending the sentence to conform to the plea agreement, but it denied Appellant’s request to allow him to withdraw his plea based on Echeverria v. State, 949 So.2d 331 (Fla. 1st DCA 2007). Citing Pralle v. State, 60 So.3d 556 (Fla. 5th DCA 2011), Appellant contends that the trial court was obligated to allow him to withdraw his plea. We disagree. Pralle neither approved nor disapproved the alternative remedy imposed here of amending the sentence to conform to the agreement.'Consistent with Echev-erría, we now conclude that the trial court was within its discretion to amend the sentence and was not obligated to permit Appellant to withdraw his plea.

However, based on the State’s proper concession of error, we conclude that Appellant had the right to be present when the new sentence was imposed. Accordingly, we reverse in part the order under review and remand this cause with instructions that the court resentence Appellant while he is present.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, TORPY and EISNAUGLE, JJ., concur.


text:
    GOLD AND SILVER REALTY 1, LLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HSI Aasset Securitization Corporation Trust 2006-HE1, Mortgage Pass-Through Certificates, Series 2006-HE1, et al., Appellees.
    Case No. 5D15-4507
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 8, 2017

      Enrique Nieves III, of King, Nieves & Zacks, PLLC, West Palm Beach, for Appellant.
    Shawn Taylor, of Deluca Law Group, PLLC, Fort Lauderdale, for Appellee, Deutsche Bank National Trust Company, as Trustee for HSI Aasset Securitization Corporation Trust 2006-HE1, Mortgage Pass-Through Certificates, Series 2006-HE1.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED. See Irwin v. Grogan-Cole, 590 So.2d 1102, 1104 (Fla. 5th DCA 1991).

PALMER, ORFINGER and LAMBERT, JJ., concur.


author: SLEET, Judge.

text:
    Ruby L. BROOKER, Appellant, v. OCWEN LOAN SERVICING, LLC, Appellee.
    Case No. 2D16-494
    District Court of Appeal of Florida, Second District.
    Opinion filed August 9, 2017.
    Kendrick Almaguer and Cindy Cumber-batch of The Ticktin Law Group, P.A., Deerfield Beach, for Appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for Appellee.
   SLEET, Judge.

Ruby L. Brooker appeals the final judgment of foreclosure entered against her and in favor of Ocwen Loan Servicing, LLC. We reverse because Ocwen failed to prove that it complied with paragraph twenty-two of the mortgage and the note’s contractual requirement to mail a notice of default to Brooker as a condition precedent to foreclosure. The breach letter was not admitted into evidence, and without record proof that Ocwen complied with the condition precedent, we must reverse and remand for dismissal of Ocwen’s foreclosure action. See Blum v. Deutsche Bank Trust Co., 159 So.3d 920, 920-21 (Fla. 4th DCA 2015).

Reversed and remanded.

LUCAS, J., and JOSEPH G. FOSTER, ASSOCIATE JUDGE, Concur.


author: MORRIS, Judge.

text:
    WESTERBEKE CORPORATION, Petitioner, v. Michael ATHERTON; Carrie Atherton; Madie Atherton and Quinn Atherton; Robert Berkstresser; MarineMax, Inc.; MarineMax of Central Florida, LLC; MarineMax Charter Services, LLC; MarineMax International, LLC; MarineMax Motor Yachts, LLC; MarineMax Motor Yachts, Inc.; MarineMax of Sarasota, LLC; MarineMax Services, Inc.; MarineMax of Southwest Florida, LLC; MarineMax Yachts, LLC; MarineMax East, Inc.; MarineMax of Jacksonville, Inc.; MarineMax Realty, LLC; Gulfwind USA, LLC, d/b/a MarineMax Gulfwind; Bassett Boat Company, d/b/a MarineMax Bassett Searay; R.B. Grove, Inc.; George and Nancy Meyer; Brian Meyer; Angela Meyer; Logan Meyer; Brooks Meyer and Abry Meyer, Respondents.
    Case No. 2D16-5179
    District Court of Appeal of Florida, Second District.
    Opinion filed August 9, 2017

      Lawrence E. Burkhalter of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for Petitioner.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for Re-, spondents Michael Atherton; Carrie Ath-erton; Madie Atherton and Quinn Ather-ton; and Brian Meyer.
    Stuart C. Markman and Kristin- A¡ Norse of Kynes, Markman & Felman, P.A., Tampa, for Respondents George Meyer and Nancy Meyer.
    No appearance for remaining Respondents.
   MORRIS, Judge.

Westerbeke Corporation seeks certiorari review of a nonfinal order denying Wester-beke’s motion to compel the unwinding, or disassembling, of a piece of a gas generator' that was involved in a boat explosion and that is a key piece of evidence in three personal injury and products liability lawsuits filed by the respondents. Because the trial court applied the incorrect law to Westerbeke’s motion'to compel, we grant the petition and quash the order.

I. Background

The boat explosion occurred in May 2009, while several respondents were on-board and operating the boat in Tampa Bay. Three separate lawsuits were filed based on injuries suffered during the explosion, and the lawsuits were consolidated for purposes of discovery only. Wester-beke is the manufacturer of the gas generator, and newly installed component parts ón the gas generator, that was operating on the boat at the .time of the explosion. The respondents’ theory with regard to Westerbeke’s liability is that there was an internal short that caused a sparking event in the windings of the piece of the generator called the “stator,” that the sparking event caused the explosion, and that the sparking event was due to manufacturing and design defects. The respondents and Westerbeke agree that there was a short, but they disagree as to when the short occurred and whether the short caused a sparking event in the stator.

Westerbeke sought to “unwind” or disassemble the stator to look for evidence of a spark or ignition source that caused the explosion. The respondents objected to unwinding the stator on the basis that it would not reveal any probative evidence and that it would destroy evidence -and thus prejudice the respondents. The issue of the unwinding was considered at two separate hearings. At the first hearing on August 26, 2016, Westerbeke argued that the unwinding was necessary to see if the stator contains evidence of “sparking, burning, melting, [or] charring,” which would indicate if the spark, or ignition source, came from the stator. Westerbeke stated that it did not seek to unwind the stator until it became aware that the respondents would be claiming that the ignition source was in the stator portion of the generator. It also argued that unwinding the stator would not harm the respondents’ ability to prove their case because the respondents have thousands of photographs. Westerbeke also questioned “how [the jury’s] touching and feeling this generator is going to prove anything” for the respondents. Last, Westerbeke argued that the relevant factors weighed in favor of the unwinding because the unwinding is relevant, reasonable, and necessary; there is no other way to do this; there are adequate safeguards in place; and the respondents’ ability to present evidence is not hindered.' ‘

The respondents argued that the unwinding would not be probative because a spark in the stator would not necessarily leave any evidence. Thus, if no evidence of a spark was found, it would not affect the respondents’ case. The respondents also argued that the unwinding would destroy evidence that they need to present to the jury:

[W]e want to present to the jury ... the generator back end in its current condition where you can, show and demonstrate the short, where we can show them the flame patterns, where I can use .this, product candidly to take the depositions of their expert and respond to them, to rebut them, and to educate the jury about what happened in this.

The court asked whether videotaping could be conducted during the experts’ depositions before the trial court allowed the unwinding, but respondents argued that they would lose their trial dates. Counsel for the Meyers ■ mentioned getting an agreement in all three cases from Wester-beke and the issue of “collateral estoppel.” He also argued that they would not be able to keep the first trial date. Westerbeke argued that the unwinding would not delay the trial. Westerbeke agreed that if no evidence of a spark is found as a result of the unwinding, the respondents are in no worse of a position, but under Wester-beke’s theory, a spark would have left evidence in the stator.

The trial court was concerned about the issue of “collateral estoppel” and whether the unwinding would potentially harm the cases that had not yet been set for trial. The trial court indicated it wanted to treat all three cases similarly and that an agreement would be' necessary before the trial court would allow unwinding.

A second hearing was held on Wester-beke’s motion to compel on October 26, 2016, and the trial court remained concerned that the respondents would be affected differently if the trial court allowed the unwinding. This was because the first trial—in the Athertons’ case—was scheduled for April 2017 and the trial court was under^ the impression that the unwinding would not be completed by then and admissible at that first trial. Westerbeke’s counsel did not understand how the unwinding “would have any adverse bearing on the subsequent cases if it’s going to be applicable to all the cases.” Counsel for the Meyers again mentioned the doctrine of collateral estoppel, saying that they would agree to the unwinding if Westerbeke was willing to accept the liability verdict in the Athertons’ case and apply it to the remaining two cases. The trial court agreed and was concerned that if Westerbeke won in the Athertons’ litigation, there would still be two more liability cases and the respondents would claim that the stator has been destroyed. Westerbeke then argued that the case should be bifurcated for liability. The trial court referred to collateral estop-pel and asked Westerbeke if it would be willing to be bound by the liability determination in the first trial. If so, the trial court would consider granting the unwinding. The trial court denied the request for unwinding unless Westerbeke agreed to “be bound by whatever is the finding in regards to liability on the first trial as to all plaintiffs.” Westerbeke stated that if it would be bound by the liability finding, the remaining respondents would also need to be bound by it. The Meyers’ counsel objected to that.

Counsel for the Meyers also argued that the unwinding would be prejudicial. West-erbeke argued that several other pieces of evidence had been disassembled and destroyed and that the'requested unwinding should not be treated any differently. Counsel for the Athertons argued that the unwinding is not necessary for Wester-beke’s defense and that they had not shown that it would be probative. He also contended that Westerbeke waited until the “9th hour” to request the unwinding. The hearing ended with all parties understanding that the trial court had denied the motion to unwind. The trial court entered an unelaborated order on November 7, 2016, simply denying Westerbeke’s motion to compel unwinding.

II. Analysis

In its petition for certiorari review, Westerbeke argues that the trial court departed from the essential requirements of law in denying its motion because the proposed unwinding is necessary to its defense as it is the only way the parties will be able to determine if there was a short in the stator at the time of the explosion. It contends that if it is prevented from conducting the unwinding, its defense that the stator did not cause the explosion “is essentially eviscerated.”

“A party seeking review of a pretrial discovery order must show that the trial court’s order departed from the essential requirements of law and caused ‘material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.’” Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987)). Generally, certiorari is not available “to review orders denying discovery because in most cases the harm can be corrected on appeal.” Id. (citing State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993)). But certiorari relief may be appropriate “when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.” Id. (footnote omitted). “The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.” Id. at 1234-35.

Westerbeke’s defense is that a spark did not occur in the stator and that the short that was detected in the stator occurred after the explosion when the boat was submerged underwater or left outside for years. Westerbeke contends that if a spark occurred in the stator during the operation of the boat, as the respondents claim it did, the components of the stator will have evidence of burning or charring. The only way to see whether such evidence is present is to unwind the stator. Therefore, the order denying the unwinding effectively eviscerates Westerbeke’s defense to the respondents’ claim, and any error is not remediable on appeal. Accordingly, certio-rari relief is appropriate if the trial court departed from the essential requirements of the law.

A trial court departs from the essential requirements of the law if it applies the wrong law or legal standard. See State v. Veilleux, 859 So.2d 1224, 1227-28 (Fla. 2d DCA 2003) (recognizing that the trial court’s misapplication of the correct law does not warrant certiorari relief but that the focus should be on whether the trial court applied the correct law (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000))); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So.2d 202, 203 (Fla. 3d DCA 2003) (“Our scope of review of the circuit court’s decision is limited to determining whether the circuit court applied the correct law or legal standard, that is, whether it departed from the essential requirements of the law.”).

Here, the trial court denied Wester-beke’s motion to compel based on its understanding and application of collateral estoppel and how the unwinding of the stator would affect the three separate cases. The trial court seemed to believe that if it granted the unwinding, the second and third cases set for trial would be affected differently than the first case set for trial. It appears that the trial court denied the unwinding because the first case was already set for trial. But the cases had been consolidated for discovery purposes, the unwinding was requested in all three cases, and Westerbeke contended that the unwinding could occur before the first trial was scheduled to occur in April 2017. The trial court applied the doctrine of collateral estoppel, but the doctrine of collateral estoppel is not applicable here because none of the cases has resulted in a final decision or judgment. See City of Oldsmar v. State, 790 So.2d 1042, 1046 n.4 (Fla. 2001) (noting that collateral estoppel applies when an identical issue has already been litigated by the parties and determined in a contest that results in a final decision by a court).

In arguing the proper standard to apply to its motion to compel, Westerbeke relies on, as it did below, the federal case of Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 614 (D. Md. 2006). There, the district court set forth four factors to consider in whether to permit destructive testing of an item of evidence:

1) Whether the proposed testing is reasonable, necessary, and relevant to proving the movant’s case; 2) Whether the non-movant’s ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; 3) Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) Whether there are adequate safeguards to minimize prejudice to the non-mov-ant, particularly the non-movant’s ability to present evidence at trial.

Id. The respondents do not argue that Mirchandani is inapplicable; rather, they suggest that the trial court properly considered the Mirchandani standard and that Westerbeke failed to meet that standard. But it is clear from the record that the trial court did not apply the Mirchandani factors or otherwise consider the merits of Westerbeke’s motion. ...

The Mirchandani case may provide guidance in determining whether Westerbeke should be permitted to unwind the stator; however, the.Mirchandani case is not controlling law in the state of Florida. See Pignato v. Great W. Bank, 664 So.2d 1011, 1015 (Fla. 4th DCA 1995) (“The rulings of lower federal courts are not binding on state courts, although they may be persuasive on a point of law. Only decisions of the United States Supreme Court are binding on the state courts of Florida.” (citations omitted)). Thus, we cannot say that the trial court failed to apply “clearly established law” when it failed to apply the Mirchandani factors. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003) (holding that ‘“clearly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law” as well as “an interpretation or application of a statute, a procedural rule, or a constitutional provision”); cf. Richardson v. State, 831 So.2d 799, 802 (Fla. 2d DCA 2002) (denying petition for writ of certiorari because “trial court did not err by considering pertinent federal cases to analyze the issues that were presented”). Neither Westerbeke nor the respondents cite to controlling law regarding the inspection of evidence that would result in the destruction of that evidence.

The Florida law regarding discovery in.general provides that a party in a civil case is entitled to discover evidence that is relevant to the subject matter of the case and that is admissible or reasonably calculated to lead to admissible evidence. Fla. R. Civ. P. 1.280(b)(1); Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). In addition, “[a]ny party may request any other party ... to inspect and copy, test, or sample any tangible things that constitute, or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed.” Fla. R. Civ. P. 1.350(a)(2). “The discovery rules ... confer broad discretion on the trial court to limit or prohibit discovery in order to ‘protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ ” Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla. 1987) (citing Fla. R. Civ. P. 1.280(c)). We conclude that the trial court departed from the essential requirements of the law in failing to apply the proper discovery standard and in applying instead the doctrine of collateral estoppel to West-erbeke’s request for unwinding. See Nucci v. Nucci, 987 So.2d 135, 139 (Fla. 2d DCA 2008) (“A failure to apply the correct standard for deciding a particular issue is a departure from the essential requirements of law.” (citing Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm’rs, 794 So.2d 1270, 1275 (Fla. 2001))).

Accordingly, we grant Westerbeke’s petition for writ of certiorari. The effect of our decision is that Westerbeke’s motion to compel unwinding remains pending, and the trial court should consider the proper standard in further ruling on it. See’ id.

Petition granted; order quashed.

CASANUEVAand SILBERMAN, JJ., Concur.

      . The following respondents were on board; Michael and Carrie Atherton and their two children, Brian and Angela Meyer and théir three children, and George and Nancy Meyer.'

      . Michael and Carrie Atherton, individually' and on behalf of their two children, filed suit against twenty-three defendants, including Westerbeke and the owner of the boat, George Meyer. Brian and Angela Meyer, individually and on behalf of their three children, also filed suit against tweniy-three defendants, including Westerbeke and the owner of the boat, George Meyer. George and Nancy Meyer filed suit against twenty-two defendants, including Westerbeke.'

      .At the first hearing on Westerbeke's motion to compel unwinding, Westerbeke’s counsel explained the issue; . .
      [Respondents] rely on [the ohmmeter] short reading for their theory, but that is their entire basis for their theory that títere was a short and then a spark, but an ohmmeter reading doesn’t tell you anything about whether there was a spark. It doesn’t tell you when it happened. It doesn’t tell you where the short, is, We just know there is presently in 2016, a short and there was a short in 2014,' that’s when it was first measured five years after the explosion, the boat sank, was submerged for 24 hours, towed in .saltwater, stored outside for four years, obviously there’s a lot of corrosion going on.

      And so the. key is, when did this insulation failure—when did the short develop, and there's two possible scenarios. It either happened while the generator was powered, while it was on, on the day of the explosion, It either happened then or it happened when the generator was not powered. That’s it. Those are the only two options. There's no between, that’s it. If it was on, if the generator was powered, you’ve got current running through it and there’s a short and a spark, there is going to be physical evidence. You've got 170, 180 volts going through this generator, nothing to stop it. And so there’s going to be significant physical damage. There’s going to be charring, burning, melting of the copper wires of the slot liner. There’s going to be melting on the iron laminations. It’s significant. [Respondents] say that there was a microscopic arcing event. You’ll—you’ve heard about that and that there’s not going to be—or there may be potential evidence that’s going to be destroyed when we unwind, but so far, we’ve seen no evidence when we’ve inspected the outside. We contend that even if it was a microscopic arcing event, which isn’t possible based on science, there’s still going to be evidence.
      Later, counsel for Westerbeke stated that Westerbeke’s theory was that the hot water heater was the ignition source because it was ’’non[-]marine grade,” was "not ignition protected,” had just been installed by the boat owner, and was used for the first time on the day of the explosion.

      . We note that the April 2017 trial date in the first case was continued and that none of the three cases are currently set for trial.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    James M. HENDRIX, Doc #T17743, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1266
    District Court of Appeal of Florida, Second District.
    Opinion filed August 9, 2017.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   ROTHSTEIN-YOUAKIM, Judge.

James M. Hendrix appeals the judgment and sentence entered after a jury found him guilty. of two counts of burglary of a dwelling and two counts of grand theft. We reject Hendrix’s argument that the trial court, after appointing an expert to evaluate his competency to proceed to trial, failed to hold an adequate competency hearing and failed to sufficiently determine that he was competent to proceed; the record establishes that the court properly made an independent determination of Hendrix’s competency. See Arnold v. State, 214 So.3d 739, 740 (Fla. 2d DCA 2017).

. The trial court, however, only orally pronounced this determination and did not enter a written order of competency as required by Florida Rule of Criminal Procedure 3.212(b). The unsigned “memo of sentence/order of the court,” which was filed with the clerk of the circuit court following the competency hearing and states “Comp Hrg-Held-Evals Rec: Deft Comp to proceed,” does not satisfy the requirement of a written competency order. See Shakes v. State, 185 So.3d 679, 682 n.2 (Fla. 2d DCA 2016) (citing Carroll v. State, 157 So.3d 385, 386 (Fla. 2d DCA 2015)); see also Phillips v. State, 198 So.3d 789, 790 n.2 (Fla. 2d DCA 2016) (collecting cases in which this court has repeatedly discouraged use of “memo of sentence/order of the court”).

Accordingly, we affirm Hendrix’s judgment and sentence but remand for the entry of a nunc pro tunc written order adjudicating him competent to proceed. See Arnold, 214 So.3d at 740 (citing Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016)).

Affirmed; remanded with directions.

VILLANTI and CRENSHAW, JJ., Concur.


author: LOGUE, J.

text:
    Mario PATARO, Appellant, v. Ellen PATARO, Appellee.
    No. 3D16-2158
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017.

      Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander, and Brian C. Tackenberg; Lisa A. Baird, for appellant.
    Broad and Cassel LLP, and Mark F. Raymond, Kimberly J. Freedman, and Christopher C. Cavallo, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
   LOGUE, J.

Mario Pataro, the former husband in the proceedings below, appeals a trial court order that (1) granted the motion of Ellen Pataro, his former wife, for discovery sanctions and (2) granted the former wife’s motion to set aside a final judgment and a related marital settlement agreement. For the reason explained below, we decline to review the part of the order granting the discovery sanctions and we reverse the part of the order setting aside the final judgment and the related marital settlement agreement.

In 2010, the parties ended their twenty-year marriage by a marriage settlement agreement which was adopted into a final judgment of dissolution. Two years later,, the former wife moved to set aside the final judgment and the associated settlement agreement under Florida Rule of Civil Procedure 1.540, alleging they were procured by fraud. That motion was never set for hearing as the parties pursued discovery! In February 2015, the former wife moved to compel and for sanctions based upon the former husband’s bad faith failure to provide discovery.

The trial court conducted an evidentiary hearing on the motion to compel and for sanctions. The hearing took place over three days during a nine month period. On the first day, November 12, 2015, the former husband was represented by counsel. On the second day of the hearing, July 12, 2016, however, the former husband did not have counsel. On July 11, 2016, the former husband’s counsel withdrew in response to a letter from opposing counsel giving him notice of the former wife’s claim for sanctions under section 57.105, Florida Statutes (2015). At the beginning of the second day of the hearing, the former husband moved for a continuance to allow him to obtain new counsel, which the trial court denied. On the third day of the hearing, August 19, 2016, the former husband was still not represented because, he stated, the counsel he had hired withdrew just prior to the hearing based on a conflict,

In the course of the evidentiary hearingj the former husband admitted he had failed to obey orders to produce material documents in his possession and lied three times in sworn materials filed in court. In explaining his conduct, the former husband indicated he believed he was not required to produce information that would “incriminate” him. Only after being confronted by .his landlord’s sworn testimony did the former husband admit that he previously lied about living rent-free. Even then, he claimed he did so only because he was paying his landlord under the'table in order to help his landlord avoid declaring the rent as income: “I am-résponsible, I did it, I never thought it would come out because it was a deal between friends. Unfortunately, many people don’t respect; friendship, that’s it.” More unfortunately, perhaps, it appears some people do not understand the serious nature of providing false testimony under oath until they face the consequences.

The trial court found the former husband had disobeyed discovery orders, failed to produce relevant documents within his possession, and committed fraud upon the court by filing false statements under oath. The trial court also found the former husband had obtain perjured testimony from a girlfriend to support his false responses.

In part of the order under appeal, the trial court entered various sanctions against the former husband including establishing the former wife’s entitlement to attorney’s fees in an amount to be set later; prohibiting the husband from presenting evidence regarding the calculation of damages and equitable distribution; directing the former, husband to file verified financial statements attaching his 2014 and 2015 tax returns; and ordering that a forensic computer expert will be appointed to review the former husband’s computers and electronic devices for emails identified to be produced in a prior order.

Based primarily, on the trial judge’s refusal to continue the hearing on the motion for discovery, sanctions, the former, husband seeks review of the sanctions imposed by this part of the non-final order contending they constitute “injunctions” subject to review under Florida Rule of Appellate Procedure 9.130(a)(3)(B). We reject this argument. The entry of these types of discovery sanctions in this particular record do not qualify as injunctions subject to interlocutory review under the Rule. For this reason, we lack jurisdiction to review these discovery sanctions in' an appeal under Rule 9.130. Blades v. Dep’t of Revenue ex rel. Stewart, 943 So.2d 300, 302 (Fla. 3d DCA 2006) (holding a discovery order threatening sanctions was “a nonfinal, non-appealable order”). Nor do we have jurisdiction to review these sanctions under a petition for certiorari: the former husband has not established irreparable harm that cannot be corrected on postjudgment appeal. Damsky v. Univ. of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014) (“Unless the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction.”).

In another part of the order under appeal, however, the trial court granted the former wife’s Rule 1.540 motion to set aside the final judgment of dissolution and the marital settlement agreement. We have jurisdiction to review this part of the nonfinal order. See Fla. R. App. P. 9.130(a)(3)(C)(iii)(c) (providing for interlocutory review of nonfinal order determining that “a marital agreement is invalid in its entirety”); Fla. R. App. P. 9.130(a)(5) (providing for interlocutory review of orders “entered on an authorized and timely motion for relief from judgment”).

We hold that the trial court erred by ruling on the motion to set aside the final judgment, and marital settlement agreement when the motion was never set for hearing. The former husband was entitled to notice of the motion being addressed at the evidentiary hearing—particularly at a time when his prior counsel withdrew and he was seeking, but was without, counsel.

Contrary to the former wife’s argument, the former husband was not on notice at the hearing on the motion for discovery sanctions that he had to present evidence to address the motion to set aside. The mere fact that the motion to set aside had been pending for years is not notice that the motion would be heard at a hearing on the motion for sanctions. The motions are not so similar that notice regarding one motion constituted notice for the other. While there might be some overlap, the motion for sanctions primarily concerned the former husband’s conduct after entry of the final judgment of dissolution while the motion to set aside the final judgment primarily concerned conduct before entry of the final judgment. The motion to set aside the marital agreement, although subject to some presumptions, also turns on “the adequacy of the challenging spouse’s knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information,” Hall v. Hall, 171 So.3d 817, 822 (Fla. 4th DCA 2015). We could find no evidence or argument in the record and no point in the trial court’s otherwise lengthy and detailed order where this issue was addressed.

The former wife also contends that the setting aside of the final judgment and marital settlement agreement should itself be upheld as a sanction for the former husband’s conduct. We reject the former wife’s argument in this regard because it is not clear that the trial judge so intended. We are reluctant to attribute this rationale to the trial judge’s ruling where, as here, the former wife was unable to provide a single case supporting the argument that a final judgment and marital settlement agreement can be set aside purely as a sanction.

Accordingly, given the particular circumstances of this case and the arguments presented to us, we reverse the part of the order under review which grants the former wife’s motion to set aside the final judgment and marital settlement agreement. This reversal is without prejudice to the motion being reheard when, and if, properly noticed. Finally, we acknowledge that discovery violations, where appropriate, may well form the basis for adverse inferences. Moreover, in extreme cases, discovery violations may justify restrictions on a party’s ability to submit evidence on points where the party’s improper conduct frustrated the opposing party’s ability to present her case. See Briarwood Capital, LLC v. Lennar Corp., 160 So.3d 544, 546 (Fla. 3d DCA 2015).

Reversed in part and remanded.

      . The trial court also ordered the former husband to surrender his passport,' but the former husband does not challenge that part of the order in this appeal.

      . The provision of the sanction order prohibiting the husband from presenting evidence regarding the calculation of damages and equitable distribution is mooted by the later holding in this opinion quashing the order that set aside both the final judgment and the marital agreement.


author: FERNANDEZ, J. EMAS, J.;

text:
    Rolando P. RUIZ, etc., Appellant, v. TENET HIALEAH HEALTHSYSTEM, INC., et al., Appellees.
    No. 3D15-2474
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Philip D. Parrish; The Gutierrez Firm, and Jorge P. Gutierrez, Jr., for appellant.
    Chimpoulis, Hunter & Lynn, P.A., and Jonathon P. Lynn (Plantation); Hicks, Porter, Ebenfeld & Stein, P.A., Dinah Stein and Erik P. Bartenhagen, for appel-lees.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Rolando P. Ruiz, etc., appeals from a final judgment entered in favor of appel-lees Tenet Hialeah Healthsystem, Inc. and Arturo Lorenzo, M.D., and the denial of his motion for reconsideration of the trial court’s directed verdict in this medical malpractice action, or in the alternative, for a new trial. We affirm the trial court’s entry of directed verdict in favor of Dr. Lorenzo because there is no competent, substantial evidence that Dr. Lorenzo caused the tragic death of Ruiz’s wife.

Ruiz, the personal representative of the Estate of Maria Elena Espinosa, sued to recover damages for the death of his wife Espinosa who died of exsanguination during a surgical procedure to remove a cancerous tumor from her skull. Dr. Lorenzo is the anesthesiologist who conducted Es-pinosa’s pre-anesthesia evaluation.

Dr. Lorenzo declared in his sworn answer to an interrogatory that “[a]ll [he] did was [Espinosa’s] anesthesia preparation evaluation.” Dr. Lorenzo testified at trial that he saw Espinosa for three to five minutes after which Dr. Velazquez completed the evaluation. Dr. Lorenzo check marked a series of boxes on the pre-anes-thesia evaluation. He signed the evaluation under the line marked “Physician” and wrote the date and time. He told Dr. Velazquez that “[t]here is nothing, no major medical problems whatsoever. You may want to take a look at the EKG.” Dr. Lorenzo saw the EKG, which was blurry but readable. The EKG reflected an abnormality. He told Dr. Velasquez that the EKG was blurry. Dr. Lorenzo neither advised Dr. Yates or Dr. Albanes that the EKG was blurry nor advised that it reflected an abnormality. Dr. Lorenzo testified that the abnormal EKG did not mean anything in light of the number of abnormal EKGs he saw on an average week. The history and physical well-being of the patient must be considered and Espinosa was one of the healthiest patients he had ever seen.

Dr. Lorenzo further testified that he never saw the protein level in Espinosa’s urine. He reviewed only the first page of lab results. The remaining two pages of lab results included the results of Espinosa’s urinalysis, which reflected an abnormal amount of protein in her urine. Dr. Lorenzo testified that, had he seen the protein level, he would have told Dr. Yates that he needed to “find out” why Espinosa was “spilling protein.” Dr. Lorenzo testified that the protein level would not have affected his anesthetic.

Dr. Velazquez testified that he did a full evaluation on Espinosa from beginning to end after Dr. Lorenzo’s evaluation. Dr. Velazquez completed and signed the anesthesia evaluation. He evaluated the EKG and all three pages of Espinosa’s lab results. He also made the determination that Espinosa could safely undergo general anesthesia.

Numerous other witnesses testified at trial. Dr. Y^tes and Dr. Albanes testified. Ruiz introduced the expert testimony of anesthesiologist Dr. William Mazzei, neurosurgeon Dr. Michael Joseph Chaparro, and Dr. Carlos Moreau, anesthesiologist and Medical Director at the hospital where Espinosa died. None of the expert witnesses testified that Dr. Lorenzo’s evaluation of Espinosa fell below the standard of care such that any breach more likely than not caused Espinosa’s death.

The trial court granted Dr. Lorenzo’s motion for directed verdict, finding that there was no proof of causation. We agree with this conclusion.

A de novo ' standard of review governs the review on appeal of a trial court’s decision to grant a directed verdict. Hancock v. Schorr, 941 So.2d 409, 412 (Fla. 4th DCA 2006). The plaintiff in a medical malpractice ease must establish (1) the standard of care the defendant owes; (2) the defendant’s breach of the standard of care; (3) and that said breach proximately caused the damages claimed. Chaskes v. Gutierrez, 116 So.3d 479, 485 (Fla. 3d DCA 2013). See also Hancock, 941 So.2d at 412. “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Chaskes, 116 So.3d at 487; Hancock, 941 So.2d at 412.

While all evidence must be viewed in a light most favorable to the nonmoving party, the court can only rely on reasonable conclusions drawn from competent, substantial evidence upon which a jury could rationally rely in finding for the non-movant. Hancock, 941 So.2d at 409. A-review of the record in the light most favorable to Ruiz supports the trial court’s conclusion on the issue of causation. There is no competent, substantial' evidence at trial from which a jury could reasonably conclude that Dr. Lorenzo’s' behavior fell below’the standard of care, or that' any breach of the standard of care more likely than not caused Espinosa’s death. It is undisputed that Dr. Lorenzo conducted a brief anesthesia evaluation on Espinosa and that he signed the anesthesia evaluation. The evidence is unequivocal that Dr. Velasquez completed the, full anesthesia evaluation from, beginning to end.

In addition, the record is devoid of competent, substantial evidence upon which to conclude that the blurry EKG or the abnormal protein level results caused Espi-nosa’s death. The record reflects that no cardiac issues precluded Espinosa from undergoing safe anesthesia. Espinosa’s autopsy revealed no' evidence of coronary artery disease. The record is abundantly clear that the primary cause of Espinosa’s death was exsanguination.

The trial court thus correctly granted Dr. Lorenzo’s motion for directed verdict. We therefore affirm.

Affirmed.

SUAREZ, J., concurs.

EMAS, J.;

dissenting.

Introduction

The question presented is whether the trial court erred in directing a verdict upon its determination that there was insufficient evidence for a jury to find that Dr. Lorenzo’s negligence was a legal cause of Mrs. Espinosa’s death. Viewing the evidence and all reasonable inferences in a light most favorable to Rolando Ruiz, personal representative of Mrs. Espinosa’s estate, I conclude there was sufficient evidence upon which the jury could have found that the negligence of Dr. Lorenzo was a legal cause of the death of Mrs. Espinosa. In my view, therefore, the trial court erred in granting a directed verdict in favor of Dr. Lorenzo at the close of Ruiz’s case, and I respectfully dissent. .

Established by Florida decisions so numerous as to preclude a need for their citation, are the rules that a trial court should not direct a verdict for defendant unless it is clear that there is no evidence whatever adduced that could in law support [] a verdict for plaintiff; and that an appellate court, on review of a judgment based on a directed verdict for defendant should consider the-testimony adduced in the cause in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in the plaintiff s favor every reasonable intendment deducible from the evidence.

Hurst v. Krinzman, 237 So.2d 333, 334 (Fla. 3d DCA 1970). See also Coba v. Tricam Indus., Inc., 164 So.3d 637, 646 (Fla. 2016) (acknowledging: “A motion for directed verdict or JNOV should be granted only if no view of the evidence■ could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party”) (citations omitted); Riedel v. Sheraton Bal Harbour Assoc., 806 So.2d 530 (Fla. 3d DCA 2001). This standard applies equally to this court’s review. Posner v. Walker, 930 So.2d 669 (Fla. 3d DCA 2006).

More importantly, and pertinent to the issue in this appeal,'“a directed verdict ‘is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation.’ ” Friedrich v. Fetterman & Assoc., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Cox v. St. Joseph’s Hosp., 71 So.3d 795, 801 (Fla. 2011)).

The evidence at trial, viewed in a light most favorable to Ruiz, the’'nonmoving party, established:

Discovery of the Tumor

Sometime prior to May 2009, Mrs. Espi-nosa, a forty-five year old woman, developed a soft lump on the back of her head and she reported it to her primary care physician, Dr, Jorge Venereo. After obtaining a computerized tomography (CT) scan, Dr. Venereo referred Mrs. Espinosa to neurosurgeons Dr. Yates and Dr. Al-banes. Dr. Yates reviewed the CT imaging and advised Mrs. Espinosa that she had a two and one-half inch non-aggressive tumor in her skull, and recommended that it be removed as soon as possible.

Dr. Yates referred Mrs. Espinosa to a radiologist for a magnetic resonance imaging (MRI) study of her brain. After obtaining the MRI, Dr. Yates met with Mrs. Espinosa and advised her that she needed to undergo surgery to remove the tumor.

Day of Surgery

On the scheduled surgery date, after having been cleared for surgery by her primary care physician, Mrs. Espinosa arrived at Hialeah Hospital between 6:00 a.m. and 6:00 a.m.,for her pre-anesthesia evaluation. .The main responsibility for clearing a patient for surgery lies with the primary .care physician and the anesthesiologist, and the purpose of the pre-anes-thesia evaluation is to document the patient’s condition for. surgery, assess the patient’s overall health, and uncover any hidden conditions that may affect or render the patient a poor candidate for surgery. Dr. Yates (Mrs. Espinosa’s surgeon) testified that if the anesthesiologist does not clear the patient for surgery, he (Dr. Yates) would not go forward with the surgery.

Dr. Lorenzo’s Pre-Anesthesia Evaluation

The pre-anesthesia evaluation consists of an examination and interview of the patient, review of the patient’s medical records, including the patient’s medical tests and evaluations such as EKGs, blood and urine tests. Although Mrs. Espinosa’s surgery was assigned to anesthesiologist Dr. Velazquez, that doctor was running late at the time Mrs. Espinosa arrived at Hialeah Hospital. Therefore, Dr. Velazquez’s' colleague—Dr. Lorenzo—began Mrs. Espino-sa’s pre-anesthesia evaluation. After Dr. Lorenzo had already begun the evaluation (including an examination of Mrs. Espino-sa and review of her records), Dr. Velazquez arrived, and he took over Mrs. Espinosa’s evaluation. Mrs. Espinosa was ultimately cleared for surgery.

At trial, Dr. Lorenzo conceded that Mrs. Espinosa was his patient, and that he was the acting anesthesiologist for Mrs. Espi-nosa during the time he evaluated her for surgery. He also testified that regardless of any prior medical clearance provided by Dr. Venereo (her primary care physician), Dr. Lorenzo was ultimately responsible for medically clearing Mrs. Espinosa for surgery:

Dr. Venereo can give me a certain amount of information, but I am the ultimate—I make the ultimate decision if the patient can have anesthesia or not. I really—I get the information Dr. Ven-ereo gives me and then I evaluate the patient to see if she can go through the anesthesia. I am the one that makes that decision.

Dr. Lorenzo testified that “when I do a patient, it doesn’t matter who sees the patient. I review everything from A to Z.” Nevertheless, Dr. Lorenzo conceded that he did not “review everything from A to Z” for Mrs. Espinosa. After evaluating her for approximately three to five minutes, Dr. Lorenzo told Dr. Velazquez “[tjhere is nothing, no major medical problems whatsoever. You may want to take a look at the EKG.” Dr. Lorenzo then signed the preoperative evaluation form as the anesthpsi-ologist performing the evaluation, and de-daring that it was safe from Mrs. Espino-sa to undergo anesthesia and surgery.

The Abnormal EKG: A “Red Flag”

During his evaluation of Mrs. Espinosa, the evidence at trial, viewed in the light most favorable to Ruiz, established that Dr. Lorenzo asked Mrs. Espinosa a series of questions from the pre-anesthesia evaluation form, regarding her cardiac, respiratory, neurologic, hepatic and renal systems, made a number of notations, and checked the box labeled “negative” for each of these system checks.

Dr. Lorenzo had Mrs. Espinosa’s medical chart when he performed the pre-anes-thesia evaluation. Her medical chart included three pages of pre-operative lab tests and results, as well as a pre-operative EKG. Dr. Lorenzo reviewed the EKG, which included both the raw test results and a written report. Dr. Lorenzo testified that although the EKG was “blurry” and “wasn’t optimal,” he could interpret it. However, Dr. Lorenzo noted that the report was inconsistent with both his own examination and the history Mrs. Espinosa provided. Mrs. Espinosa reported she had never suffered a heart attack, but the EKG report stated “probable right ventricular hypertrophy” and “high lateral MI” (myocardial infarction, or heart attack), as well as other abnormalities indicative of a possible prior heart attack. The EKG itself also indicated that it was an “Abnormal EKG.”

Dr. Lorenzo acknowledged that an abnormal EKG report is an immediate red flag because cardiac issues are important when administering anesthesia. Dr. Lorenzo could have ordered another EKG, which could have been completed in fifteen to twenty minutes, would have been higher quality than the one he was provided, and would not have inconvenienced the surgeons. Nevertheless, Dr. Lorenzo did not order another EKG. And although he testified that EKG report “caught [his] eye” because it was “not normal at all,” he stated that the abnormal EKG finding on the report “doesn’t matter,” that he felt comfortable with the EKG, and he wanted to save Mrs. Espinosa the additional expense of another EKG.

This position was contradicted not only by Plaintiffs expert, but by Dr. Moreau, the Medical Director of Hialeah Hospital, who testified that a patient should not be taken to surgery with an abnormal EKG, and that the surgery in this case should not have proceeded until the abnormal EKG and Mrs. Espinosa’s cardiovascular history were reconciled.

Abnormal Urine Test: Another “Red Flag”

In addition, although Mrs. Espinosa’s medical records included three pages of pre-operative lab tests and lab results, Dr. Lorenzo reviewed only the first page, and only “quickly took a look at the hemoglobin and hematocrit to see if she was anemic.” Dr. Lorenzo noted a “red flag” regarding the hemoglobin and hematocrit levels in Mrs. Espinosa’s blood, which he stated he did investigate. However, he did not look at the results of Mrs. Espinosa’s urine test, which showed the presence of high levels of protein, another red flag requiring further investigation.

Mrs. Espinosa’s pre-operative urine protein level was 100 milligrams per deciliter. The presence of any protein in the urine is abnormal, and Mrs. Espinosa’s urine protein level was (or should have been) a significant red flag for the anesthesiologist performing the pre-operative clearance. As Ruiz’s medical expert testified, the tumor’s appearance on the MRI, coupled with its slow growth, and the presence of protein in the urine, should have placed multiple myeloma at the top of the list of differential diagnoses, because seventy-five percent of patients suffering from multiple myeloma secrete protein into the urine. Dr. Lorenzo knew that Mrs. Espinosa was scheduled for surgery to remove a tumor from her skull. He also knew that a solitary non-aggressive tumor in the skull, together with protein in the urine, could be a sign of multiple myeloma, which ordinarily would not require surgery. Dr. Lorenzo acknowledged that, included in the lab results, was a urine test which showed the presence of protein in Mrs. Espinosa’s urine. However, as Dr. Lorenzo conceded, he “missed” this lab result in his review of the pre-operative test results. Significantly, Dr. Lorenzo testified that, had he seen the test result of protein in the urine, he would have advised the surgeon about it. Most importantly, Dr. Lorenzo conceded that if either the abnormal EKG or the abnormal lab results had been brought to the surgeon’s attention, more likely than not the surgery would not have taken place that day.

Mrs. Espinosa Dies of Heart Failure

Mrs. Espinosa was taken in for surgery at 8:40 a.m,, with Drs. Yates, Albanes and Velazquez. Mrs. Espinosa’s heart began failing at about 8:45 a.m., before the actual surgery even began. At 11:44 a.m., Mrs. Espinosa was pronounced' dead on the operating table. On Mrs. Espinosa’s death certificate, Dr. Yates, the neurosurgeon,filled out the death certificate and listed Mrs. Espinosa’s cause of death as “heart failure”. Dr. Albanes (the other neurosurgeon) testified his impression was that Mrs, Espinosa may have died of a heart attack.

The Directed Verdict

At the close of Plaintiffs evidence, Dr. Lorenzo moved for a directed verdict, asserting that Dr. Lorenzo'did not perform or complete the pre-operative evaluation (but that it was instead performed and completed by Dr. Velazquez) and thus, as a matter of law, Dr, Lorenzo could not be’ held liable.

The trial court granted the motion for directed verdict, but for an entirely different reason, as evidenced by this discussion:"

THE COURT: Well, let me ask you something. And let’s assume for a moment that Dr. Lorenzo did a preop evaluation. Lét’s just assume that’s true, and let’s assume he did it negligently, that he just didn’t read the second page, ignored everything. What is the evi-" dence of causation of your client’s demise, which'is, by the way, nothing short of a tragedy?

Plaintiffs counsel responded that it was, in part, Dr, Lorenzo’s negligence which placed Mrs. Espinosa “in a position where she is exsanguinating” in surgery, to which the trial court responded: “S.o is the' cab driver who drove her to the hospital.”

The trial court again inquired of Plaintiffs counsel to point to the evidence “that shows he caused her death, other than if he had done all that, she would have been in surgery 20 minutes later....”

Counsel responded:

If [Dr.. Lorenzo] reads the labs, Your Honor, she does not get cleared for surgery. Dr. Moreau [the Medical Director for Hialeah Hospital and an anesthesiologist] even testified today that based upon abnormal labs, he would have can-celled the surgery.

In fact, Dr. Lorenzo also admitted during his own testimony that if he had read all of the lab results and brought- those results, or the abnormal EKG, to the attention of the surgeon, the surgery would not have taken place:

PLAINTIFF’S COUNSEL: If you would have brought to someone’s attention, either the EKG or the Labs, that surgery, more likely than not, doesn’t take place because they need to reconcile the EKG and/or they need to reconcile the labs before the surgery, right?
DR. LORENZO: Yes, Sir.

The trial court then granted a directed verdict, finding that even if Dr. Lorenzo was negligent in performing the pre-opera-tive-evaluation, there was no evidence that this negligence caused Mrs. Espinosa’s death:

I know all of the evidence, and there is nothing he did, I am going to-assume for a second that he did a below standard of care eval. No. 1, he was not assigned to that room. No. 2, your, own expert said, whoever comes in and does the surgery is themselves supposed to do it from jump street. So most respectfully, there is no proof of causation. There is speculation only, and-1 am' cutting Dr. Lorenzo loose because the only thing worse than this woman’s dying is having some body who shouldn’t ‘be held liable,- held liable, This doctor is going home today.

' The Plaintiff moved for reconsideration of the directed verdict and for a new trial. The motion was denied and this appeal followed.

Analysis

In this case, the trial court determined, upon a motion for directed verdict by Dr. Lorenzo, that there was “no proof of causation,” and therefore, directed a verdict in favor of Dr. Lorenzo. For us to affirm, we must conclude that there is “no conflicting evidence as to the causation or the likelihood of causation.” Friedrich, 137 So.3d at 365; Aragon v. Issa, 103 So.3d 887 (Fla. 4th DCA 2012). Dr. Yates, the neurosurgeon who performed the surgery, testified he would not have performed the surgery at that time if the anesthesiologist or the primary care physician had not cleared her. Therefore, the question is whether Dr. Lorenzo’s alleged negligence “probably affected the outcome,” Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984).

In this regard, the evidence presented at trial, taken in a light most favorable to Plaintiff, established five critical facts:

1. Dr. Lorenzo signed the pre-anesthesia evaluation form, indicating he was responsible for performing the pre-anes-thesia evaluation and indicating that, based upon his evaluation, Mrs. Espino-sa was cleared for surgery;
2. Dr. Lorenzo was negligent in his review of the pre-operative test results, including his failure to clarify or reconcile the abnormal EKG, his failure to review or note the test results showing the presence of protein in the urine, and the failure to notify the surgeon of these issues;
3. If Dr. Lorenzo had brought to the surgeon’s attention either the abnormal EKG or the abnormal lab results, it is more likely than not that the surgery would not have taken place.
4. A reasonably prudent anesthesiologist under the same circumstances would have notified the surgeon of these results and would not have cleared Mrs. Espinosa for surgery; and
5. Dr. Yates would not have performed the surgery that day had Mrs. Espinosa not been cleared for surgery, and thus Mrs. Espinosa would not have died on the operating table.

The fact that Dr. Lorenzo was one of the two anesthesiologists who reviewed the EKG and lab results, who examined Mrs, Espinosa that morning, and who signed off on the paperwork clearing her for surgery that day, can only mean one thing: Dr. Lorenzo’s negligence “probably affected the outcome.”

The fact that a second anesthesiologist (Dr. Velazquez) subsequently participated (allegedly negligently) in the pre-operative examination, or the fact that Dr. Yates and Dr. Albanes (the surgeons) were also negligent while performing the surgery, cannot support the trial court’s action in directing a verdict in favor of Dr. Lorenzo. As the Florida Supreme Court held in Saunders v. Dickens, 151 So.3d 434, 442 (Fla. 2014):

Because the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action. A subsequent treating physician simply may not be present at the time a defendant physician makes an allegedly negligent decision or engages in a potentially negligent act. Further, it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner. We hold that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.

Conclusion

Accordingly, I would hold that the trial court erred in directing a verdict in favor of Dr. Lorenzo,, and would reverse and remand for a new trial on liability and damages as to Dr. Lorenzo. I therefore respectfully dissent.

      . The defendants at trial included one internist, anesthesiologists Dr. Lorenzo and Dr. Guillermo Velasquez, and neurosurgeons Dr. Basil Yates and Dr. Pedro Albanes. The internist and Dr. Velazquez settled before trial. Dr. Yates, Dr. Albanes, and Dr. Lorenzo proceeded to trial. The jury returned a verdict against Dr. Yates' and Dr. Albanes after which they settled. The jury assigned no liability to Dr. Velazquez.

      . At trial, Dr. Lorenzo took the position that he did not actually perform the pre-operative evaluation, that he merely “began” it, and that the evaluation was actually performed by Dr. Velazquez. However, when asked in a pretrial interrogatory to describe his participation, Dr. Lorenzo admitted that "all I did was her anesthesia preparation evaluation.” Further, Plaintiff’s expert testified that an anesthesiologist’s signature on the pre-operative form is very significant because it signals that "they’re responsible for the pre-op evaluation of the patient.” The Plaintiff's expert also opined that, while it was unusual to see the signatures of two anesthesiologists on the evaluation form, in his opinion, each doctor performed his own evaluation of Mrs. Espino-sa. At the very least, this testimony created a disputed question of fact for the jury to resolve, and did not serve (and could not have served) as a basis for the trial court’s decision to direct a verdict in favor of Dr. Lorenzo.

      . However, this testimony conflicted with his deposition, during which he testified that he "couldn't see what was on [the EKG].”

      . Plaintiffs expert testified, and even Dr. Lorenzo acknowledged, that protein in the urine is an abnormal finding, that he should have reported it to the surgeon, and had he done so, it was more likely than not that the surgery would not have occurred.

      . In making its determination, the trial court assumed that there was sufficient evidence for a jury to find that Dr. Lorenzo’s evaluation of Mrs. Espinosa fell below the standard of care. The only issue raised in this appeal is whether Plaintiff established causation as to Dr. Lorenzo.

      . See Davidson v. Gaillard, 584 So.2d 71, 73 (Fla. 1st DCA 1991) (noting that "when an original tortfeasor’s negligent act causes a plaintiff to seek medical treatment which is negligently provided ... negligent medical treatment is foreseeable as a matter of law.’’) (disapproved of on other grounds by Barth v. Khubani, 748 So.2d 260 (Fla. 1999)).

      . This case can thus be distinguished from Santa Lucia v. LeVine, 198 So.3d 803 (Fla. 2d DCA 2016), where the Second District affirmed the trial court’s granting of a directed verdict in favor of the doctor where there was no testimony that surgery would not have proceeded if a pre-operative consultation had been conducted. In the instant case, there was sufficient evidence of Dr. Lorenzo’s negligence, as well as testimony, that his negligence was a legal cause of Mrs. Espinosa's death;

      .The jury found that Dr. Yates and Dr. Al-banes were each negligent and that the negligence of each was a legal cause of Mrs. Espi-nosa’s death,


author: LAGOA, J.

text:
    Salvador MENDOZA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1094
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Rehearing Denied August 31, 2017
    Salvador Mendoza, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for respondent.
    Before LAGOA, SCALES, and LUCK, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Salvador Mendoza (“Mendoza”) petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. The State moves to dismiss the petition as untimely. We agree and dismiss the petition as procedurally barred under Florida Rule of Appellate Procedure 9.141(d)(5).

In 2004, Mendoza was convicted and sentenced for the following crimes: (1) attempted first degree murder of a law enforcement officer; (2) aggravated battery of a law enforcement officer; (3) aggravated assault of an intern in a police car; (4) shooting a deadly missile; (5) resisting arrest with violence; (6) burglary of a dwelling; (7) possession of a firearm in the commission of a felony; (8) conspiracy to commit armed robbery; and (9) fleeing a police vehicle that has activated its siren. This Court on direct review in Mendoza v. State, 941 So.2d 523 (Fla. 3d DCA 2006), affirmed in part and reversed in part Mendoza’s sentence. On November 28, 2006, the mandate issued and Mendoza’s judgment and sentence became final.

Pursuant to Florida Rule of Appellate Procedure 9.141(d)(5):

A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.

(emphasis added). Because Mendoza’s petition was filed on May 7, 2017—more than four years after his judgment and sentence became final on direct review, we dismiss Mendoza’s petition as procedurally barred under rule 9.141(d)(5). See Melara v. State, 997 So.2d 1135, 1136 (Fla. 3d DCA 2008); see also Burroughs v. State, 65 So.3d 1175 (Fla. 1st DCA 2011); Chance v. State, 65 So.3d 1176 (Fla. 1st DCA 2011). We caution Mendoza that the filing of any further procedurally barred petitions claiming appellate counsel was ineffective may result in the imposition of sanctions including but not limited to an order from this Court prohibiting Mendoza from filing any further pro se pleadings in this Court.

DISMISSED.

      . This Court reversed Mendoza’s conviction for possession of a firearm in the commission of a felony, and this conviction was vacated by the trial court on January 19, 2007,

      . Mendoza’s petition was filed more than ten years after his judgment and sentence became final.


text:
    Christopher Charles MCINTOSH, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1727
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Christopher Charles McIntosh, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the July 22, 2015, order denying motion for postconviction relief in Ala-chua County Circuit Court case number 01-2011-CF-004408-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Maurice A. STILLS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1558
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Maurice A. Stills, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as successive.

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Donald Craig GORE, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    CASE NO. 1D17-0577
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Donald Craig Gore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

All relief sought by petitioner in the petition for all writs jurisdiction filed on February 14, 2017, is denied.

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Marvin KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5730
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Marvin Knight, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.