text:
    Vernon Ray NEWSOM, Jr., Appellant, v. Karen NEWSOM, Appellee.
    CASE NO. 1D16-4239
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The parties were divorced in 2011. In 2016, the appellee/former wife filed a petition for a domestic violence injunction against the appellant/former husband alleging he had threatened to kill her and had disparaged her to their daughter. The parties were duly noticed of the hearing on the injunction. The former wife and counsel for the former husband were both present at the hearing. The former husband’s counsel did not know the former husband’s whereabouts and sought to delay the hearing temporarily, but the trial court immediately declined the 'request. The trial court asked the former wife if they were divorced and if she still wanted an injunction, which she did. This was the extent of the testimony in support of the injunction. The former husband’s counsel’s request to present argument on whether an injunction could lie on a threat to kill, alone was also denied. The trial court promptly entered a final permanent injunction pursuant' to section 741.30, Florida Statutes (2016). The former husband moved for rehearing on the injunction, asserting his tardiness was excusable.as it was due to circumstances beyond his control. He further argued the injunction was improperly entered without a sufficient evidentiary basis.- The motion for rehearing was denied.

On appeal, the former husband argues he was deprived of due process when the injunction was entered without an opportunity for him to be heard. We agree. “Just as the petitioner has the right to allege and'prove the grounds for injunc-tive protection at a full and fair evidentiary hearing, the respondent is entitled to a fair hearing and protection from the effects of a final judgment of injunction that lacks any evidentiary support.” Johns v. Johns, 101 So.3d 377, 378 (Fla. 1st DCA 2012) (quoting Achurra v. Achurra, 80 So.3d 1080, 1083 (Fla. 1st DCA 2012)); Parise v. Selph, 175 So.3d 389 (Fla. 1st DCA 2015). Due process requires that each party have a “reasonable opportunity to prove or disprove the allegations made in the complaint.” Id. at 390 (citing Furry v. Rickles, 68 So.3d 389, 390 (Fla. 1st DCA 2011)). The trial court’s actions here deprived the appellant of any opportunity to-address the allegations in the petition, As such, it was error for the trial court to order a final permanent injunction without allowing the appellant the opportunity to be present and heard. See Johns, 101 So.3d at 378 (reversing a permanent domestic violence injunction for similar reasons and remanding for. a full evidentiary hearing); Parise, 175 So.3d at 390 (reversing and remanding final order granting an injunction for protection against repeat violence where the respondent was not afforded due process).

.The former husband also argues the injunction was not supported by a sufficient evidentiary basis. We agree. As the petitioner, the former wife bore the burden of proving the allegations in the petition. The trial court received no evidence and simply asked the former wife if she still wanted an injunction. Her statement that she did was not a sufficient basis for granting the injunction. See Mantell v. Rocke, 179 So.3d 511 (Fla. 1st DCA 2015) (reversing where no evidence or testimony was introduced by the appellee to support granting the injunction for protection against domestic violence). See also Achurra, 80 So.3d at 1082 (consujering the sufficiency of the evidence for the first time on appeal and reversing where the final judgment was not supported by competent, substantial evidence).

Given the foregoing, we see no need to address the former husband’s argument as to whether a threat to kill, without an additional act showing an ability to carry out the threat, was a legally sufficient basis upon which to grant the injunction. We reverse the final injunction and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ROBERTS, MAKAR and JAY, JJ.,' CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James DANIELS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2256
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    James Daniels, pro se, Petitioner. .
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Cristina KIRTLEY, Appellant, v. FLORIDA DEPARTMENT OF REVENUE and Eugene Lewis Kirtley, IV Appellees.
    CASE NO. 1D16-1379
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Cristina Kirtley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Carrie R. McNair, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellee Florida Department of Revenue.
   PER CURIAM.

In this ease before us, Appellant appeals the lower court’s final, administrative support order denying retroactive child support.

Eugene and Cristina Kirtley were married and had a son who was less than two years of age when they separated. After their separation, Mr. Kirtley provided child support totaling $2,720.25. In its proposed administrative support order, the Department of Revenue (the Department) proposed current child support and also $3,342.60 in retroactive child support to make up the difference between what Mr. Kirtley had paid and what he should have been paying under the guidelines provided in section 61.30, Florida Statutes (2016). Mr. Kirtley requested an administrative hearing, challenging the Department’s calculation of his income.

At the hearing, the lower court found the following facts: The total monthly support the child needed was $845.84; Mr. Kirtley earns $2,385.46 per month, which constituted 68% of the family’s income; and he has the ability to pay child support. Based on those facts and pursuant to section 61.30, Florida Statutes, the lower court imposed $467 per month in child support on Mr. Kirtley, but failed to award retroactive child support, on the grounds that Mrs. Kirtley “waived any retroactive support payments due by [Mr. Kirtley].”

The standard of review on a lower court’s denial of an award of retroactive child support is abuse of discretion. Smith v. Smith, 872 So.2d 397, 399 (Fla. 1st DCA 2004). The issue before us is whether the lower court abused its discretion by failing to award retroactive child support. Section 61.30(17), Florida Statutes, provides guidelines for awarding child support retroactively, and does not require the parent receiving child support to attend the hearing.

“A trial court abuses its discretion when it fails to award retroactive support ... where there is a need for child support and an ability to pay.” Leventhal v. Leventhal, 885 So.2d 919 (Fla. 3d DCA 2004); Bardin v. Dep’t of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998). Specifically, the trial court abuses its discretion by failing to award retroactive child support on the grounds that the mother waived her right to such support. Beal v. Beal, 666 So.2d 1054, 1054 (Fla. 1st DCA 1996) (citing Armour v. Allen, 377 So.2d 798, 799-800 (Fla. 1st DCA 1979), which held that “parents may not contract away the rights of their child for support,” and reasoning that the mother may not waive the child’s right to retroactive support).

Here, the lower court determined that, although the child was in need of support and the father had the ability to pay, the mother waived any right to retroactive child support by not attending the hearing. Thus, we hold that the lower court abused its discretion by failing to award retroactive child support.

REVERSED and REMANDED.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.


author: WALLACE, Judge.

text:
    Dominic HEISTON, as Personal Representative for the Estate of Dylan Matthew Heiston, Deceased, Appellant, v. SCHWARTZ & ZONAS, LLP, Appellee.
    Case No. 2D16-3417
    District Court of Appeal of Florida, Second District.
    Opinion filed July 7, 2017

      P. Brandon Perkins and Kristen D. Perkins, of Rogers Towers P.A., Fort Myers, for Appellant.
    Joseph D. Stewart of Joseph D. Stewart, P.A., Naples, for Appellee.
   WALLACE, Judge.

This case involves a dispute between two law firms regarding the allocation of an attorney’s contingent fee earned after the settlement of a wrongful death claim. Dominic Heiston, as personal representative of the Estate of Dylan Heiston, deceased, appeals the trial court’s order that awarded the entire fee to Schwartz & Zonas, LLP, the attorneys for the decedent’s statutory survivors. Because the trial court erred in awarding the entire fee to Schwartz <& Zonas and nothing to the law firm that represented the personal representative, we reverse.

I. THE FACTS AND PROCEDURAL BACKGROUND

Dylan Heiston, who was sixteen years old, was killed in an automobile accident on July 31, 2014. Rasjia Heiston and Kristina Heiston, Dylan’s parents, were his statutory survivors under the Florida Wrongful Death Act, sections 768.16-.26, Florida Statutes (2014) (the Act). Dylan had an older brother, Dominic Heiston. Neither Rasjia nor Kristina were able to qualify as the personal representative of Dylan’s estate. Thus, Dominic, who did qualify, was appointed as the personal representative. The law firm of Morgan & Morgan, P.A., represented Dominic in his capacity as personal representative.

Morgan & Morgan filed an action for wrongful death on Dominic’s behalf against the driver of the other automobile involved in the accident. Ultimately, all claims arising from the accident were settled, and the lawsuit was dismissed after Morgan <& Morgan received payments from two different insurance companies. Allstate, the insurer for theother driver involved in the accident, paid its policy limits of $100,000. Century 21, the carrier that provided uninsured motorist’s coverage under a policy that covered Dylan, paid its policy limits of $100,000 plus a $5000 death benefit. Thus, the total recovery was $205,000. Morgan & Morgan agreed to reduce its contingent fee from thirty-three and one-third percent of the recovery to twenty-five percent of $200,000 or $50,000. Morgan & Morgan did not claim a fee on the $5000 death benefit.

Schwartz & Zonas had a contingent fee agreement with Dylan’s parents, Rasjia and Kristina. Schwartz & Zonas attempted—unsuccessfully—to have Rasjia appointed as the personal representative of Dylan’s estate. When it became apparent that Rasjia could not qualify, Schwartz & Zonas attempted to have an unrelated third party appointed. This attempt also failed. Although Schwartz & Zonas did not represent the personal representative, it actively pursued the wrongful death claim. Schwartz & Zonas sent demand letters to the two insurance companies and received settlement checks. These cheeks were never deposited; Schwartz &. Zonas also filed a wrongful death action on behalf of Rasjia and Kristina. In the complaint, Schwartz & Zonas alleged on behalf of their clients— inaccurately—that Rasjia had been appointed as the personal representative of Dylan’s estate. Notably, there was no dispute between Rasjia and Kristina concerning their respective shares of the amount of the recovery payable to the survivors; each claimed one-half of the proceeds. Ultimately, Rasjia and Kristina would each disclaim any interest in the proceeds of the wrongful death recovery with the result that the entire share of the survivors will be distributed to their son, Dominic.

‘ After the wrongful death claim was settled, Dominic filed a final accounting and petition for discharge. The estate had no assets other than the $205,000 proceeds of the wrongful death claim. The final accounting reflected disbursements as follows: $3878.26 for the payment of funeral expenses, $4621.74 for the probate attorney’s fees and costs to date, and $50,190.51 to Morgan & Morgan for their fees and costs. In the petition for discharge, Dominic proposed to pay himself a personal representative’s fee of $6150 and an additional $2078.26 to the probate attorney for fees and costs. The total of the disbursements already paid and proposed to be paid left a balance of $138,081.28. Dominic proposed to distribute this balance in equal shares to Rasjia and Kristina. The only person or entity that filed an objection to the final accounting or to the proposed distribution of the estate assets was Schwartz & Zonas.

Schwartz & Zonas objected to the disbursement of $50,190.51 in fees and costs to Morgan & Morgan. In support of their objection, Schwartz & Zonas alleged:

All assets as stated in the ’Amended Inventory were collected by the Law Offices of Schwartz & Zonas LLP during their lawful representation of both Rasjia Heiston and Kristina Heiston. As Morgan & Morgan PA performed no duties in the collection of Estate Assets, it is not entitled to an attorney fee.

Schwartz <& Zonas also filed a petition for an order authorizing payment of attorney’s fees. In this petition, Schwartz & Zonas requested payment of one-third of $205,000 or $68,333.34. Schwartz & Zonas based their attorney’s fee claim on the contingent fee agreement between the firm and Dylan’s parents.

II. THE TRIAL COURT’S RULING

The trial court conducted an evidentiary hearing on the objection and the separate fee petition. At the conclusion of the hearing, Schwartz & Zonas argued that they were “entitled to the lion’s share of the attorney fees” because (1) Schwartz & Zo-nas represented the: parents, who were the real parties in interest; (2) Morgan & Morgan had a disqualifying conflict of interest because they did not represent the parents; (3) Allstate and Century 21 had tendered the checks .for payment to Schwartz & Zonas before Morgan & Morgan’s involvement; (4) Morgan & Morgan was not authorized to settle the case because it did not represent the parents; and (5) Schwartz & Zonas did the majority of the legal work in obtaining the proceeds of the wrongful death claim arising from Dylan’s death. In conclusion, Schwartz & Zo-nas modified its objection to the disbursement to Morgan & Morgan by suggesting that Schwartz & Zonas should receive eighty percent of the total fee, leaving twenty percent of the fee for Morgan & Morgan.

After the hearing, the trial court entered an order sustaining Schwartz & Zonas’s objection to the final accounting and petition for discharge. Despite Schwartz & Zonas’s suggestion- that it receive eighty percent of the fee and Morgan & Morgan collect the remaining twenty pércent, the trial court authorized payment of a $50,000 fee and directed that the entire amount be paid to Schwartz & Zonas. This appeal by Dominic followed;'

III. THE APPLICABLE LAW

The legal principles applicable to the prosecution and settlement of wrongful death claims in Florida are well settled:

By statute, the personal representative is the only party with standing to bring a wrongful death action to recover damages for the benefit of the decedent’s survivors and the estate. § 768.20, Fla. Stat. (2005); see also Wiggins v. Estate of Wright, 850 So.2d 444, 446 (Fla. 2003). The survivors may not bring separate legal actions and are required to participate in the single legal action filed by the estate. Wiggins, 850 So.2d at 446. However, the survivors are still entitled to be represented by counsel of their choice. Id. at 449.

Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So.3d 1187, 1191 (Fla. 2011). “Under Florida’s Wrongful Death Act, .... [t]he personal representative has the exclusive authority to conduct litigation and settle all claims. The survivors are not parties to the wrongful death litigation,. even when the claims are brought for their benefit.” Kadlecik v. Haim, 79 So.3d 892, 893 (Fla. 5th DCA 2012) (citations omitted); see also § 768.20, Fla. Stat. (2014) (“The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.”). The statutory power to settle a wrongful death action is vested in the personal representative. Thompson v. Hodson, 825 So.2d 941, 949, 953 (Fla. 1st DCA 2002). The personal representative has the power to hire counsel to carry out his or her duties with regard to wrongful death claims. In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000).

The principles applicable to the allocation of attorney’s fees to be paid from the proceeds of a wrongful death claim when one or more of the survivors are represented by separate counsel are also well established in Florida law. With regard to the payment of “Litigation Expenses,” section 768.26 of the Act provides for the payment of the attorney hired by the personal representative of the decedent’s estate as follows:

Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.

See also Catapane, 759 So.2d at 11 (quoting the statute). In the Catapane case, the Fourth District worked out the principles controlling the allocation of the contingent fee paid from the recovery on a wrongful death claim where one or more of the survivors are represented by separate counsel. Id. at 11-12. The Florida Supreme Court has expressly agreed with the Cata-pane court’s analysis. Wiggins v. Estate of Wright, 850 So.2d 444, 447 (Fla. 2003). In the Wiggins case, the court concluded its discussion of the case before it by summarizing these principles as follows:

When survivors have competing claims, and are represented by separate attorneys, awarding attorneys’ fees from a wrongful death suit in a manner commensurate with the attorneys’ work properly provides for proportional payment of attorneys’ fees by all survivors, out of their respective awards. For example, if there are two competing survivors represented by separate attorneys throughout the litigation who successfully prosecute a claim to judgment, the fees should ordinarily be awarded out of the respective recoveries. This will always be subject to the caveat that where it can be demonstrated that one attorney played a greater role in securing the total award, a larger fee may be proper. In no instance, however, should a survivor be penalized for hiring separate counsel by having to pay a fee for recovery of the same amount twice.
We agree with and approve of the Catapane method of allocating fees, whereby a trial court determines the attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.

Id. at 450. Later, in the Wagner case, the court held that section 768.26 of the Act applies to instances where a wrongful death claim is settled presuit and not just to cases where an action has been filed or litigated. 64 So.3d at 1192. In Wagner, the court once again approved the Fourth District’s analysis in Catapane. Id. at 1192-93.

IV. DISCUSSION

The trial court’s order in this case does not mention any of the provisions of the Act. The order does not cite to Wagner, Wiggins, Catapane, or any other pertinent case law. For these reasons, it has been difficult for us to discern the legal basis underlying the trial court’s ruling that denied the payment of any portion of the contingent fee in this case to Morgan & Morgan. The trial court seems to have decided to prefer Schwartz & Zonas for payment of the entire fee because they became active in the matter before Morgan & Morgan. In basing its ruling on which law firm was the first to act, the trial court overlooked that Morgan & Morgan’s client, the personal representative of the estate, was the sole party who was authorized under the Act to pursue the claim, not Rasjia or Kristina. The trial court erred in preferring Schwartz & Zo-nas for payment of the entire contingent fee simply because they were the first to contact the insurance companies and to file a lawsuit.

We reverse the order under review and remand this case to the trial court for further proceedings consistent with this opinion. On remand, the trial court shall reconsider the allocation of the $50,000 attorney’s fee between the two law firms based on the provisions of the Act and the principles stated in Wagner, Wiggins, Ca-tapane, and other pertinent case law. Thus, the trial court must award the full $50,000 contingent fee to Morgan & Morgan and then reduce the fee award in a manner commensurate with the value, if any, of the services that Schwartz & Zonas provided to the statutory survivors, Rasjia and Kristina. See Garces v. Montano, 947 So.2d 499, 504 (Fla. 3d DCA 2006) (reversing the trial court’s order allocating fees from the settlement of an action for wrongful death and remanding for further proceedings pursuant to Wiggins).

Reversed and remanded for further proceedings consistent with this opinion.

SLEET and LUCAS, JJ., Concur.

      . In this opinion, we will refer to the members of the Heiston family by their first names to avoid confusion.


author: LAMBERT, J.

text:
    Marie Lynn HARRISON and Deborah Harrison, Appellants, v. William GREGORY, as Personal Representative of the Estate of Joshua Raim Kalphat Lopez, and Basich, Inc., Appellees.
    Case Nos. 5D16-1037, 5D16-2552
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017

      Angela C. Flowers, of Kubicki Draper, Ocala, for Appellant.
    David C. Beers and James Gordon, of Beers and- Gordon, P.A., Oviedo, for Appel-lee, William Gregory, as Personal Representative of the Estate of Joshua Raim Kalphat Lopez.
    No Appearance for Appellee, Basich, Inc.
   LAMBERT, J.

In this wrongful death case, Marie Lynn Harrison and Deborah Harrison (“Appellants”) appeal a final judgment entered against them and in favor of William Gregory, as personal representative of the estate of Joshua Raim Kalphat Lopez (“Appellee”). Lopez (“Decedent”) died as a result of injuries that he sustained when his motorcycle collided with a motor vehicle driven by Co-Appellant, Marie Harrison, at an intersection located in Orlando, Florida. Appellants also appeal the separate “Final Cost Judgment” entered against them and -in favor of Appellee.

The issue of liability or fault for the accident was vigorously disputed at trial, with both sides presenting significantly divergent testimony, from lay witnesses and expert witnesses, as to how and why the accident occurred, including whether Decedent was under the influence of cocaine or marijuana to the extent that his normal faculties were impaired at the time of the accident. The jury determined that both Marie Harrison and Decedent were negligent and a legal cause of the loss or damage to Appellee, assessing 75% fault to Harrison and 25% fault to Decedent for this accident, The jury awarded significant damages to Decedent’s parents for their respective mental pain and suffering, plus damages to Appellee for funeral expenses and medical expenses. Appellants raise three substantive grounds for reversal, which we will address in seriatim. Concluding that the cumulative effect of the errors at trial materially prejudiced Appellants, we reverse the Anal judgments and remand for a new trial.

Ruben Ortiz. Testimony.

-While she was still at the accident scene, Marie Harrison told her twin sister that “I just killed a kid.” Appellants filed a pretrial motion in limine to exclude this statement at trial, arguing that it was not relevant and that even if it were marginally relevant, the statement was nevertheless inadmissible pursuant to section 90.403, Florida Statutes (2012), because its probative value was substantially outweighed by the danger of unfair prejudice. Following a hearing, the trial court agreed, concluding that “the tendency of that statement is to suggest an improper basis to the jury for resolving the matter” and that the statement “doesn’t necessarily imply fault.” , .

On the morning of trial, Appellee’s counsel advised the court and Appellants’ counsel that he intended to call Ruben Ortiz to testify. Ortiz had seen Decedent operate his motorcycle just prior to the accident and was at the scene when he heard Marie Harrison state on her cell phone, that “I think I killed somebody,” Appellants objected to the admissibility of this statement, arguing that because the statement was essentially identical to Harrison’s statement to her sister that the court had previously excluded pursuant to section 90.403, it would be patently inconsistent to now allow Ortiz to testify to, essentially, the same statement. The trial court did not change its earlier ruling on the inadmissibility of Harrison’s statement to her sister; nevertheless, it permitted Ortiz to testify as to this second statement. We review this evidentiary,ruling under the abuse of discretion standard. LaMarr v. Lang, 796 So.2d 1208, 1209 (Fla. 5th DCA 2001).

- Section 90.403 provides that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” “ ‘Unfair prejudice’ has been described as ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” McDuffie v. State, 970 So.2d 312, 327 (Fla. 2007) (quoting Brown v. State, 719 So.2d 882, 885 (Fla. 1998)). The trial court correctly ruled that, under the facts o'f this case, Harrison’s statement to her sister was inadmissible under section 90.403. Therefore, we conclude that the court abused its discretion in not similarly excluding -Ortiz’s testimony regarding Harrison’s essentially identical statement.

References to Insurance

Prior to trial, the parties stipulated to the entry of an order in limine to prevent the mentioning of the “existence of insurance” before the jury. During the course of the trial, Appellee’s counsel questioned his accident reconstruction expert witness about the inspection of Marie Harrison’s motor vehicle and specifically asked the witness where the vehicle had been taken following the collision. Appellee’s expert responded that it had been transported to a storage yard by “the insurance company.” Appellants moved for a mistrial. Outside the presence of the jury, the court admonished the witness to make no further comment about insurance, but it denied Appellants’ motion. Neither this witness nor counsel mentioned insurance again.

“The long-standing purpose of excluding improper references [to] a defendant’s insurance coverage in civil proceedings is to preclude jurors from affixing liability where none otherwise exists or to arrive at excessive amounts [of damages] through sympathy for the injured party with the thought that the burden would not have to be borne by the defendant.” Melara v. Cicione, 712 So.2d 429, 431 (Fla. 3d DCA 1998) (citing Carls Mkts., Inc. v. Meyer, 69 So.2d 789, 793 (Fla. 1953)). Here, the order in limine was violated. Normally, because this one comment regarding insurance was not pervasive, we likely would have concluded that there was no abuse of discretion by the trial court in denying Appellants’ motion for mistrial. See Ricks v. Loyola, 822 So.2d 502, 506 (Fla. 2002) (holding that an appellate court reviews a trial court’s rulings on motions for mistrial under the abuse of discretion standard of review). However, as we explain, this comment about insurance in conjunction with the earlier error in admitting Ortiz’s testimony and the prejudicial comment of Appellee’s counsel during closing argument, discussed below, requires reversal.

Improper Closing Argument

Appellants presented evidence and argument at trial that Decedent’s impairment by the use of cocaine and marijuana was a causal factor for the accident. On this issue, section 768.36, Florida Statutes (2012), provides, in pertinent part:

(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired ...; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 60 percent at fault for his or her own harm.[]

On the verdict form, this determination of drug impairment was presented for resolution as interrogatory questions 5 and 5(a), which the jury was to consider after it answered the prior four questions on the verdict form. Specifically, the first two questions on the verdict form asked the jury to determine whether there was negligence on the part of Marie Harrison that was a legal cause of loss, injury, or damage to Appellee and, if so, whether there was also negligence on Decedent’s part that was a legal cause of loss, injury, or damage. As previously indicated, the jury answered “yes” to both questions. Question 4 of the verdict form then directed the jury to state the percentage of fault that it charged to Harrison and that it charged to Decedent.

The verdict form next instructed the jury that if it had assigned a percentage of fault to Decedent that is 50% or less, that it was to skip questions 5 and 5(a), but that if it had assigned a percentage of fault to Decedent greater than 50%, then it was to answer questions 5 and 5(a) before answering the remaining questions on the verdict form.

Questions 5 and 5(a) on the verdict form stated:

5. If you attributed any percentage of fault to [Decedent] in question 4 above was some or all of that fault caused by [Decedent] being under the influence of cocaine and/or marijuana to the extent that his normal faculties were impaired?
Yes: _ No: _
(a) As a result of that influence of cocaine and/or marijuana, was [Decedent] more than fifty percent (50%) at fault for his own harm?
Yes: _ No: _

In his closing argument, Appellee’s counsel recommended how the jury should approach filling out the verdict form during deliberation. Counsel suggested that instead of answering the questions on the verdict form in the order instructed on the form, the jury should skip the first four questions on the verdict form and go directly to question 5. Counsel argued that the answer to questions 5 and 5(a) should “very simpl[y]” be “no.” Counsel then inexplicably advised the jury as follows: “By the way, 50 percent or more at fault, there’s no recovery.” Appellants’ counsel immediately objected and moved for a mistrial. The trial court sustained the objection, correctly ruling that it was improper for counsel “to let [the jury] know the mathematical effect of a finding of a percentage of fault.” The court issued a curative instruction directing the jury to follow the instructions on the verdict form regarding the manner in which it was to proceed in filling out the verdict form and also admonishing the jury that the attorneys do not give the instructions on the law. The court deferred ruling on the motion for mistrial but later denied the motion after the jury returned its verdict.

The purpose of closing argument is to assist the jury with its application of the law that the judge has given to the facts of the case. Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028 (Fla. 2000) (quoting Hill v. State, 515 So.2d 176, 178 (Fla. 1987)). “Moreover, closing argument must not be used to ‘inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.’ ” Id. (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985)). While Appellee’s counsel was enti-tied to argue to the jury that the evidence presented did not establish that Decedent was impaired by cocaine or marijuana at the time of the accident and could properly argue for a significant damage award for the parents for their understandable trauma resulting from the death of their son, it was highly improper for counsel to advise the jury as to the potential adverse effect to the parents of the jury’s potential factual findings regarding comparative fault. Frankly, we can conceive of no reason why counsel would advise the jury that Decedent’s parents would not receive any money if it found Decedent to .be greater than 50% at fault, other than to deliberately and improperly evoke. sympathy and. compassion for Decedent’s parents.

Cumulative Error

Lastly, Appellants argue that while any one of the aforementioned errors, by itself, is sufficient to justify a reversal, at a minimum, the errors collectively require a new trial. A cumulative error claim asks an appellate court to “evaluate-claims of error cumulatively to determine if the errors collectively warrant a new trial.” Rogers v. State, 957 So.2d 538, 553 (Fla. 2007) (citing Suggs v. State, 923 So.2d 419, 441-42 (Fla. 2005)). In analyzing the entire record, we conclude that Appellee has not shown that the cumulative effect of these errors is harmless. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (holding that the harmless error analysis in civil cases requires that “the 'beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict”).

Accordingly, we reverse the final judgment awarding damages in favor of Appel-lee and remand for a new trial. Furthermore, because we- have reversed this final judgment, we must also reverse the separate final cost judgment. See Thornburg v. Pursell, 476 So.2d 323, 324 (Fla. 2d DCA 1985).

REVERSED and REMANDED for new trial.

ORFINGER, J., and HERNDON, L., Associate Judge, concur.

      . The two' appeals were consolidated sua sponte by the court.

      . Decedent was twenty-two years old.

      . The record does not indicate the significance of the vehicle’s location after being moved from the accident scene.

      . Appellants point out that there were multiple references to insurance during trial. On two occasions, the principal and an employee of the co-defendant, Basich, Inc., separately mentioned insurance during testimony. As the questions posed by Appellee's counsel to these witnesses were not intended to elicit insurance information, these comments, over which Appellee had no control, do not justify reversal. Finally, two separate jurors provided two written questions for witnesses regarding insurance, but the trial court did not allow the questions to be asked and did not advise the other members of the jury about those questions.

      .Though not raised by either party, this statute providing an intoxication defense applies in a wrongful death action. See Griffis v. Wheeler, 18 So.3d 2, 4-5 (Fla. 1st DCA 2009).

      . Question 3 of the verdict form pertained to an issue of vicarious liability that is not pertinent to this appeal.

      . The remaining questions related to various elements of damages.


author: PALMER, J.

text:
    REUNION WEST DEVELOPMENT PARTNERS, LLLP, Appellant, v. Afranio Sanford GUIMARAES, Jr. and Sandra Falcao Aureliano S. Guimaraes, Appellees.
    Case No. 5D16-3665
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017

      Jose G. Sepulveda and Veronica L. De Zayas, of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for Appellant.
    Scott R. Rost, of South Milhausen, P.A., Orlando, for Appellees.
   PALMER, J.

Reunion West Development Partners (Reunion) appeals the order entered by the trial court denying its Motion to Compel Arbitration. We reverse.

The Guimaraes (the buyers) filed a breach of contract action against Reunion. The complaint alleged a claim of breach of a Home Purchase Agreement and a claim for declaratory relief regarding the arbitration provision contained in said agreement; The arbitration provision provides, in relevant part:

ARBITRATION. BY ENTERING INTO THIS AGREEMENT, BUYER AND SELLER AGREE THAT ANY CONTROVERSY, CLAIM OR DISPUTE, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR BUYER’S PURCHASE OF THE PROPERTY OR ANY RIGHTS AND OBLIGATIONS BETWEEN ■ THE PARTIES WILL BE RESOLVED.BY BINDING ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES CODE). THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE CONSTRUCTION INDUSTRY ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AND THE TERMS OF THIS AGREEMENT.

Importantly, the Construction Industry Arbitration Rules of the American Arbitration Association'authorizes the'arbitrator to rule on the arbitrability of a dispute:

R-9. Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.

The buyers filed a Motion to Determine Arbitrability, and Reunion responded by filing a Motion to Compel Arbitration and to Stay the Proceedings. The trial court conducted a hearing on the parties’ motions. Counsel for the buyers argued that the arbitration clause was not enforceable because there was no meeting of the minds and because its terms were unconscionable, citing to Basulto v. Hialeah Automotive, 141 So.3d 1145 (Fla. 2014). Counsel for Reunion asserted that the issue of arbi-trability was expressly reserved for the arbitrator to decide, citing to Glasswall, LLC v. Monadnock Construction, Inc., 187 So.3d 248 (Fla. 3rd DCA 2016). The trial court entered an order denying Reunion’s Motion to Compel Arbitration, citing to Basulto.

Reunion argues that the trial court reversibly erred in relying on Basulto and in rejecting its claim that the issue of arbitra-bility was for the arbitrator to decide. We agree.

Appellate courts “review de novo a trial court’s ruling on a motion to compel arbitration, but ... defer to the trial court’s factual findings provided that they are supported by competent, substantial evidence.” Timber Pines Plaza, LLC v. Zabrzyski, 211 So.3d 1147, 1150 (Fla. 5th DCA 2017).

While arbitrability is generally an issue for trial courts to decide, courts must delegate the authority to the arbitrator if the parties’ contract so provides. Morton v. Polivchak, 931 So.2d 935, 938-39 (Fla. 2d DCA 2006); accord Glasswall, 187 So.3d at 251; Grant v. Rotolante, 147 So.3d 128, 130-31 (Fla. 5th DCA 2014); Rintin Corp., S.A. v. Domar, Ltd., 766 So.2d 407, 409 (Fla. 3d DCA 2000). “[W]hen ... parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator.” Contec Corp. v. Remote Solution, Co., Ltd., 398 F.3d 205, 208 (2nd Cir. 2005); accord Glasswall. Where, like here, the language of the contract clearly states that AAA rules govern, then said rules are expressly incorporated into the contract. Younessi v. Recovery Racing, LLC, 88 So.3d 364, 365 (Fla. 4th DCA 2012) (citing Terminix Int’l Co. v. Palmer Ranch Ltd., 432 F.3d 1327, 1333 (11th Cir. 2005)).

Based on this case law, the trial court erred in denying Reunion’s Motion to Compel Arbitration because the parties’ contract expressly incorporates the Construction Industry Arbitration Rules, and those rules provide that the arbitrator is authorized to rule on the arbitrability of the instant contract.

The trial court’s reliance on Basulto was misplaced for several reasons. In that case, the buyers were challenging the existence of an enforceable contract, whereas here the buyers are only challenging the enforceability of the arbitration clause of their Home Purchase Agreement. Also, the arbitration clause at issue in Basulto did not incorporate the Construction Industry Arbitration Rules. Lastly, the terms of the contract in Basulto were substantively changed after signing, and contained inherently inconsistent provisions.

Accordingly, the trial court’s order denying Reunion’s Motion to Compel Arbitration is reversed and this matter remanded for further proceedings. Bank of America, N.A. v. Beverly, 183 So.3d 1099 (Fla. 4th DCA 2015).

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      . Appellate jurisdiction is proper pursuant to rule 9.130 of the Florida Rules of Appellate Procedure.

      . In light of the court's ruling on this issue, Reunion’s other points on appeal are moot.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Richard William JOY, III, Appellee/Cross-Appellant.
    Case Nos. 5D16-1283 and 5D16-1502
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten and Wesley Heidt, Assistant Attorneys General, Daytona Beach, for Appellant/Cross-Ap-pell.ee.
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appel-lee/Cross-Appellant.
   PER CURIAM.

We withdrew our prior opinion by order and now substitute the following. In this consolidated appeal and cross-appeal, the State appeals the trial court’s order dismissing one count of an information that charged Richard William Joy, III with possession of a firearm by a convicted felon and trafficking in cocaine while armed with a firearm, stemming from the same incident but severed for trial. The trial court ruled that collateral estoppel barred the State from prosecuting the felon-in-possession count because, while the jury found Joy guilty of armed trafficking, it found that he did not “actually possess a firearm.” Joy cross-appeals his conviction and sentence and requests a new trial, arguing that the trial court erred in failing to give his requested special jury instruction. Wé affirm the court’s denial of the special instruction without further discussion. However, we reverse the court’s order dismissing the felon-in-possession count.

Detective Bradley Tollas of the Long-wood Police Department ■ was pursuing a Cadillac that was the subject of a, police investigation and saw it crash with an unmarked police car. After the crash, the Cadillac’s driver ran from the scene. Joy, the passenger, was unable to run and remained outside the car. Inside the Cadillac, Detective Tollas found a loaded handgun on the passenger-side floor, where Joy’s feet would have been, and cocaine in the center console. Joy was taken into custody and subsequently charged with trafficking in cocaine while armed with a firearm and possession of. a firearm by a convicted felon.

The trial court severed the charges and Joy proceeded to trial on the trafficking charge. The jury found Joy guilty of trafficking in cocaine and determined that he “individually carried” a weapon but did not “actually possess” a firearm during the commission of the offense, pursuant to section 775.087(1) and (2), Florida Statutes (2014). Based on the jury’s finding that he did not actually possess a firearm during the commission of the trafficking offense, Joy moved to dismiss the felon-in-possession count of the information, claiming that the doctrine of collateral estoppel barred further prosecution. The trial court agreed and dismissed ' the felon-in-possession count. This was error.

Appellate courts review orders granting motions to dismiss de- novo. State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004). On a motion to dismiss based on collateral estoppel, the trial court must determine whether “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose.” Davis v. State, 645 So.2d 66, 67 (Fla. 4th DCA 1994). The doctrine of collateral estoppel “mean's simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). For collateral estoppel to apply, the issue “sought to be foreclosed must necessarily have been determined in the defendant’s favor; it is not sufficient that the fact might have been determined in the first trial.” State v. Short, 513 So.2d 679, 681 (Fla. 2d DCA 1987) (emphasis added); see also Gragg v. State, 429 So.2d 1204, 1206 (Fla. 1983) (holding that pertinent question when dealing with claim of collateral estop-pel is whether factual issue was actually decided by prior jury in reaching its verdict); State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA 1992) (holding collateral estoppel.may bar subsequent prosecution of fact “necessarily established” in prior trial, which is defined as one resolved in favor of defendant in prior trial and essential to that prior conviction). The defendant has “the burden to prove by convincing, competent evidence” that this standard is met. Davis, 645 So.2d at 67. Here, Joy has failed to satisfy that burden. While the jury found that Joy did not “actually possess” a firearm during the course of the trafficking offense, we cannot say that the jury’s findings “necessarily established” the issue of possession for the felon-in-possession offense because the jury found that Joy “carried” the firearm. .

Section 775.087(1) allows for reclassification of an offense if the defendant carries any weapon or firearm during the commission of the felony. .As the jury was instructed, “carry” is defined under this statute as either actual physical possession of a firearm or having the firearm readily available. Williams v. State, 531 So.2d 1033, 1033 (Fla. 3d DCA 1988); Menendez v. State, 521 So.2d 210, 212 (Fla. 1st DCA 1988); see James v. State, 16 So.3d 322, 326 n.2 (Fla. 4th DCA 2009) (noting that definition of “carry” is narrower than “possess” because possession can be actual or constructive). Section 775.087(2)(a)l. further “enhances the sentence of a defendant who ‘actually possessed’ a firearm during the commissión of the crime.” Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002).. In order for the-firearm enhancement to apply, the State must prove actual possession, which, as the jury was instructed, is defined as either 1) the firearm was carried on the defendant’s person or 2) the firearm was within immediate reach of the defendant with ready access to it and the defendant had the intent to use it during the commission of the crime. § 775.087(4), Fla. Stat. (2014); Fla. Std. Jury Instr. (Crim.) 3.3(d). Thus, in finding that Joy “carried” but did not “actually possess” a firearm, the jury in the trafficking trial must have concluded that while the firearm was readily available -or within Joy’s immediate reach, Joy neither had the firearm on his person nor had ready access to it with the intent to use it during the trafficking offense. As such, the jury did not necessarily determine that Joy did not “possess” a firearm to dismiss the severed felon-in-possession charge.

Section 790.23(1), Florida Statutes (2014), makes it a second-degree felony for a convicted felon to own a firearm or to have one in his care, custody, possession, or control,' Under this statute, possession means “to have personal chárge of or exercise the right of ownership, management, or control over an object,” and can be actual or constructive. Fla. Std. Jury Instr. (Crim.) 10,15; see generally Daniels v. State, 718 So.2d 1274, 1275 (Fla. 2d DCA 1998) (explaining that state must prove either constructive or actual possession to establish violation of section 790.23). Specifically, under section- 790.23, “actual possession” requires only that the firearm is “so close as to be within ready reach, and is under the control of the person,” and does not require that it be carried on the person or with an intent to use it during' the commission of any other crime. Fla. Std. Jury Instr. (Crim.) 10.15.

Because “possession” is defined differently in the jury instructions for violations of sections 775.087 and 790.23, the jury did not necessarily determine the issue of possession under section 790.23 in Joy’s favor. The State is not- barred frotó prosecuting the felon-in-possession charge. We reverse the trial court’s dismissal of the felon-in-possession charge, and remand for a trial on this count.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, EVANDER and WALLIS, JJ., concur.

      . Because we remand for a trial on the felon-in-possession charge, we note that the trial court mentioned during the hearing on Joy’s motion to dismiss that it would give the Florida Standard Jury Instruction (Criminal) 3.3(d) for the felon-in-possession charge. This would have been improper. The appropriate standard jury instruction for felon-in-possession charges is Instruction 10.15.


text:
    Nathaniel BROWN, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D16-4480
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017
    Nathaniel Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Nathaniel Brown appealed the final order denying his petition for writ of mandamus, entered on September 9, 2016, by the circuit court in Brown v. Florida Department of Corrections, Case No. 2016 CA 000708 (2d Cir., Leon Cnty.). In Brown v. Jones, — So.3d -, 42 Fla. L. Weekly D1300, 2017 WL 2438337 (Fla. 1st DCA June 6, 2017), we affirmed the circuit court’s order. In light of Mr. Brown’s litigious history in this Court, the previous sanctions imposed by Brown v. State, 35 So.3d 72 (Fla. 1st DCA 2010), and the warning regarding his subsequent litigation in Brown v. State, 186 So.3d 625 (Fla. 1st DCA 2016), we retained jurisdiction to pursue any additional sanctions against him pursuant to rule 9.410, Florida Rules of Appellate Procedure and section 944.279, Florida Statutes. See Steele v. State, 998 So.2d 1146 (Fla. 2008); Walker v. Fla. Parole Comm’n, 70 So.3d 665 (Fla. 1st DCA 2011).

Upon this Court’s order to show causé why additional sanctions should not be imposed, Mr. Brown responded that his civil litigation and appeals should not be considered together with his criminal appeals and postconviction filings in the analysis of whether his filings were so frivolous and numerous that they amounted to abuse of the court process. This response does nothing to refute the “‘strong inference that unless he is stopped, [he] will continue filing nonmeritorious requests for relief in this Court.’ ” Johnson v. Rundle, 59 So.3d 1080, 1082 (Fla. 2011) (quoting Pettway v. McNeil, 987 So.2d 20, 22 (Fla. 2008)); see also Williams v. Crews, 136 So.3d 1119 (Fla. 2014).

Accordingly, in addition to the sanctions already imposed upon Mr, Brown’s ability to challenge his convictions and sentences pro se, we hereby direct the Clerk to reject for filing any further appeals, petitions, motions, documents, or other papers unless such filings are signed by a member in good standing with The Florida Bar. See Martin v. State, 833 So.2d 756 (Fla. 2002); Jackson v. Fla. Dep’t of Corr., 790 So.2d 398 (Fla. 2001). Mr. Brown is again warned that violation of this order could result in referral to the Department of Corrections for sanctions under section 944.279, Florida Statutes.

It is so ordered.

WOLF, RAY, and BILBREY, JJ., CONCUR.


author: LOGUE, J.

text:
    T.H., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D17-727
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Law Offices of Roger Ally, P.A., and Roger Ally, for appellant.
    Karla Perkins, for appellee Department of Children and Families; Laura J. Lee (Sanford), for appellee Guardian ad Litem Program.

      Before LOGUE, SCALES, and LINDSEY, JJ.
   ON CONFESSION OF ERROR

LOGUE, J.

T.H., the Father, appeals a final judgment terminating his parental rights. The trial court entered an implied consent against T.H. when he failed to appear at a January 27, 2017 adjudicatory hearing. The Department and guardian ad litem concede that this court should reverse and remand for a hearing on the Department’s petition to terminate the Father’s parental rights. We agree.

In November 2016, the Department filed a petition alleging several grounds to terminate the parental rights of both the Father and Mother. At the outset of the January 2017 trial on the Department’s petition as to both parents, the Department moved for a continuance. The Mother joined in the request for continuance, and the trial court granted the motions. After the continuance - was granted, the Department asked the trial court to enter a default against the Father because the Father had notice of the hearing but failed to appear. The trial court entered an implied consent against the Father. The Father later filed a motion to vacate the implied consent which was heard by the trial court in March 2017.

At the March hearing on the Father’s motion to vacate, the Father testified that he had been hospitalized on the day of the January hearing. Nevertheless, the trial court concluded that the Father failed to present a meritorious defense and it denied the Father’s motion. This appeal followed.

Section 39.801(3)(d), Florida Statutes (2016), authorizes constructive or implied consent in termination cases, but “courts should ordinarily refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control.” T.L.D. v. Dep’t of Children & Family Servs., 883 So.2d 910, 914-15 (Fla. 2d DCA 2004). Indeed, “Florida public policy favors an adjudication on the-merits over the entry of a default, and thus a properly filed motion to vacate a consent by default should be liberally granted.” Id. at 915. Such public policy “is particularly implicated in cases involving a parent’s fundamental right to the care, custody, and control of a child.” Id.

In ruling on a .motion to vacate a default termination of parental rights, a trial court must determine whether the movant acted with due diligence, demonstrated excusable neglect,- and demonstrated the existence of a meritorious defense. Id. at 914; see also E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004).

Here, the trial court concluded that the •motion to vacate must be denied because the Father failed to present a meritorious defense. But based on the unique circumstances of this case, where the Department asked for a continuance of the adjudicatory hearing, the Father was hospitalized at the time of the hearing, and the Father presented argument as to each' ground for termination, we conclude that the trial court erred in denying the motion to vacate.

Reversed and remanded.


author: PER CURIAM;

text:
    Raney RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1768
    District Court of Appeal of Florida, First District.
    Opinion filed July 12, 2017
    Raney Richardson, pro se, Petitioner.
    Pamela Jó Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM;

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

ROBERTS, OSTERHAUS, and M.E. THOMAS, JJ., CONCUR. '


text:
    Kenyon A. RAWLINGS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3233
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Jack R. Maro, of Law Office of Jack R. Maro, P.A., Ocala, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to raise the issue of consecutive mandatory minimum sentences in a timely and sufficient postconviction proceeding as the issue was not preserved for review.

ORFINGER, TORPY and BERGER, ' JJ., concur.


text:
    Devoran ELLIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Devoran Ellis, Wewahitchka, pro sé.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Devoran Ellis appeals the summary denial of his amended motion for postconviction relief under Florida Rule of Criminal Procedure -3.850. We reverse only as to Ground Two. The order under review-is affirmed in all other respects.

After a jury trial, Ellis was convicted of resisting an officer with violence, battery on a law enforcement officer, and depriving an officer of a means of protection or communication. In his postconviction motion, Ellis alleged that traffic cameras covered the scenes of his crimes, and trial counsel failed to obtain videotapes from those cameras, notwithstanding Ellis’s request to do so. Ellis further alleged that the videotapes would have established that he did not commit the charged crimes, but rather that he was physically attacked without cause by the police officer in question. Ellis’s allegations are sufficient to state a claim for ineffective assistance of counsel. See Freeman v. State, 616 So.2d 181 (Fla. 2d DCA 1993) (holding that counsel’s alleged failure to present videotape evidence, which allegedly would have established defendant’s innocence, constituted facially sufficient postconviction claim).

On remand, the trial court shall either hold an evidentiary hearing or attach records that conclusively refute Ellis’s claim.

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

PALMER, EVANDER and BERGER, JJ., concur.


text:
    Dalvin Lorenzo DENSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D12-5794
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017
    Andy Thomas, Public Defender, Kathleen Stover, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Dalvin Denson was convicted of two counts of attempted first-degree felony murder, one count of attempted armed robbery, and one count of carrying a concealed firearm. At the time of sentencing, the trial court followed then-controlling precedent from this court and imposed consecutive mandatory-minimum terms for the attempted murder and robbery convictions. On appeal, we affirmed the consecutive mandatory-minimum terms, relying in part on our decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) and the Fourth District’s decision in Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013). The Florida Supreme Court subsequently quashed our decision and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) and Williams v. State, 186 So.3d 989 (Fla. 2016). On remand, we now reverse Den-son’s consecutive sentences and remand so the trial court can exercise its discretion in determining whether the mandatory-minimum terms should be consecutive or concurrent. See Williams, 186 So.3d at 994; Walton, 208 So.3d at 64.

REVERSED and REMANDED for re-sentencing.

OSTERHAUS, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Leronnie Lee WALTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D10-6776
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Pursuant to the mandate issued by our supreme court, we reverse and remand for a new trial in accordance with Walton v. State, 208 So.3d 60 (Fla. 2016).

REVERSED and REMANDED.

B.L. THOMAS, C.J., WETHERELL and JAY, JJ., CONCUR.


text:
    PENSACOLA BEACH, INC., and David A. Brannen, Appellants, v. AMERICAN FIDELITY LIFE INSURANCE COMPANY, Pensacola Beach, L.L.C., and Santa Rosa Island Authority, Appellees.
    CASE NO. 1D17-0714
    District Court of Appeal of Florida, First District.
    Opinion filed July 20, 2017
    Robert O. Beasley, Phillip A. Pugh, and DeWitt D. Clark of Litvak Beasley Wilson & Ball, LLP, Pensacola, for Appellants.
    Linda A. Hoffman and Robert S. Rushing of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellees.
   PER CURIAM.

The Court has determined that the Partial Final Judgment in Favor of American Fidelity Life Insurance Company, Santa Rosa Island Authority, and Michael J. Stebbins is not one that disposes of the entire case as to any party or disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. Fla. R. App. P. 9.110(k). Therefore, the order does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k).

The Court declines to grant appellant’s request to review the Order Denying Motion to Stay Proceedings and the Order Imposing Sanctions and Striking Pleadings of Pensacola Beach, Inc., and David A. Brannen by petition for writ of certiorari because the Court’s jurisdiction to do so was not invoked in a timely manner. In order to invoke the Court’s certiorari jurisdiction, a petition must be filed within thirty days of rendition of the order to be reviewed. Fla. R. App. P. 9.100(c)(1). The two orders of which appellant seeks certio-rari review were rendered on January 8, 2017. The notice of appeal was filed on February 8, 2017, the thirty-first day following rendition.

The appeal is dismissed for lack of jurisdiction.

ROBERTS, OSTERHAUS, and MX. THOMAS, JJ., CONCUR.


text:
    Slavica Nmn FISCHER, Appellant, v. Wayne Joseph FISCHER, Appellee.
    CASE NO. 1D16-5451
    District Court of Appeal of Florida, First District.
    Opinion filed July 20, 2017.
    ' Bruce B. Childers, Pensacola, for Appellant.
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellee.
   PER CURIAM.

Appellant, the former wife, challenges' the trial court’s order modifying the amount of alimony awarded to her. She claims competent, substantial evidence does not support the trial court’s finding that the former husband experienced the prerequisites to alimony modification: (1) a substantial change in circumstances; (2) that the change was not contemplated at the time of the final judgment of dissolution; and (3) that the change was sufficient, material, involuntary, and permanent in nature. Jarrard v. Jarrard, 157 So.3d 332, 336-37 (Fla. 2d DCA 2015).

We agree; the evidence that was presented at the hearing does not support a finding that the former husband’s change in circumstances was either unanticipated or involuntary, We, therefore, REVERSE the order modifying the alimony award.

WOLF, ROWE, and KELSEY, JJ., CONCUR.' ■


text:
    Tacoby Charles ROSS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4050
    District Court of Appeal of Florida, First District.
    Opinion filed July 20, 2017.
    Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz and Thomas H, Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to. correct a sentencing error. The trial court stated that it .denied Appellant’s motion, because it was required to be filed under Florida Rule of Criminal Procedure 3.801. The issue before us is whether Appellant can seek credit for time served via Florida Rule of Criminal Procedure 3.800(b)(2) during the pendency of a direct appeal.

“If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error.” Fla. R. Crim. P. 3.800(b)(2). A motion to correct a final sentence may be filed under Florida Rule of Criminal Procedure 3.801. Fla. R. Crim. P. 3.801(a). Appellant filed his motion during the pendency of his appeal, not after his sentence became final. In the Court Commentary to rule 3,801, the language of the 2013 adoption states that “all jail credit issues must be handled pursuant to this rule”; however, the 2016 Amendment to rule 3.801 clarifies that “rule 3.801 applies to final sentences.” Id, The State concedes error on this issue. We reverse and remand for the trial court’s consideration of Appellant’s motion on the merits.

REVERSED AND REMANDED.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ., CONCUR.


author: WOLF, J.

text:
    Tommy Allen KROLL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2347
    District Court of Appeal of Florida, First District.
    Opinion filed July 20, 2017
    Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss and Virginia Harris, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions for burglary of an occupied dwelling and grand theft. We agree with appellant that the trial court erred in admitting Williams Rule evidence that he committed a burglary of a different residence because that evidence became a feature of the trial. See Cannon v. State, 51 So.3d 1261, 1262 (Fla. 1st DCA 2011). We also accept the State’s concession that the Williams Rule evidence should not have been admitted because the facts of the collateral crime and the underlying crime were not sufficiently similar, and the points of similarity did not have a special character, nor were they so unusual as to point to appellant. See Drake v. State, 400 So.2d 1217, 1219 (Fla. 1981). The error in admitting the Williams Rule evidence was not harmless. Thus, we REVERSE.

ROWE and KELSEY, JJ., CONCUR.


author: PER CTJRIAM.

text:
    William EVANS, Appellant, v. Cheryl MANIGOTT, Appellee.
    Case No. 5D17-858
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017

      William Evans, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CTJRIAM.

AFFIRMED, without prejudice for Appellant to file a renewed motion to vacate in the trial court, with properly authenticated evidence supporting his assertion that Appellee is deceased.

ORFINGER, TORPY and WALLIS, JJ.,' concur.


author: Gerber, J.

text:
    Jarett YOUMANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3334
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]
    Harold Long, Jr., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The defendant appeals from the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 amended motion for postconviction relief. He argues that he was entitled to an evi-dentiary hearing on his claim of ineffective assistance of counsel based on counsel’s alleged failure to investigate, interview, and call an alibi witness. He specifically argues that the trial court’s order incorrectly misstates the timeline as alleged in the motion and, therefore, the record does not conclusively refute his claim of ineffective assistance of counsel. We agree with this argument and reverse and remand for the trial court to provide record attachments which refute the defendant’s claim or to conduct an evidentiary hearing on the claim.

Following a jury trial, the defendant was convicted of attempted felony murder and robbery with a firearm. The robbery occurred at a pawn shop in Hollywood at approximately 12:30 p.m. The victim, a store employee, identified the defendant as one of the robbers.

In the defendant’s rule 3.850 motion, he claimed that his trial counsel was ineffective for failing to investigate, interview, and call an identified alibi witness who allegedly would have testified that she was with the defendant “from approximately 10:00 a.m. into and during the early afternoon hours” on the day of the robbery. The motion specified that at approximately 12:00 p.m, the alibi witness was with the defendant at a restaurant in Miramar, “miles away from the scene of the crime in Hollywood.” The motion further alleged that the alibi witness had been available and prepared to testify at trial. The motion also alleged the alibi witness’s testimony presented a reasonable probability that the outcome of the defendant’s trial would have been different but for counsel’s ineffectiveness, because the only direct identification of the defendant came from the victim through a photo lineup identification over eight months after the crime, and an in-court identification at trial nearly two- and-a-half years after the crime.

The trial court entered an order summarily denying the defendant’s motion. In the order, the court reasoned:

For a defendant to state a facially sufficient claim of ineffectiveness assistance of counsel for failure to call a witness at trial, the defendant must allege: (1) the identity of the prospective witness, (2) the substance of the witness’s testimony, (3) the availability of the witness to testify at trial, and (4) an explanation concerning how the omission of the witness’s testimony prejudiced the outcome of the trial. See Nelson v. State, 875 So.2d 57[9], 582-83 (Fla. 2004).
This Court finds the instant ground for relief is denied because there is not a reasonable probability that the omission of ... [the] alibi witness pi-ejudiced the outcome of the trial. The alibi witness’s potential testimony would place the Defendant with her from, 10:00 a.m. to 12 p.m.; however, the robbery was committed at approximately 12:30-12:45 p.m. ... Even assuming arguendo that the Defendant was with the witness from 10:00 a.m. to 12:00 p.m., the Defendant would have still had an opportunity to leave the witness’s presence and commit the robbery.

(emphasis added).

This appeal followed. The defendant argues that the trial court’s order incorrectly misstates the timeline as alleged in the motion and, therefore, the record does not conclusively refute his claim of ineffective assistance of counsel. Our standard of review is well-established:

To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.

Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citation omitted).

We agree with the defendant’s argument that the trial court’s order incorrectly misstates the timeline. The trial court appears to have overlooked the defendant’s allegation that the alibi witness would have testified she was with him “into and during the early afternoon hours,” which may have included 12:30 p.m., when the robbery occurred.. Thus, the record does not conclusively refute the defendant’s claim of ineffective assistance of counsel for the failure to investigate, interview, and call the alleged alibi witness. The fact that the victim identified the defendant as one of the robbers also does not conclusively refute the defendant’s claim of ineffectiveness. See Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004) (“[T]he mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses.”).

Based on the foregoing, we reverse and remand for the trial court to provide record attachments or conduct an evidentiary-hearing on the defendant’s claim of ineffective assistance of counsel for failing to call the alleged alibi witness. We affirm without further discussion the trial court’s summary denial of the defendant’s remaining claims of ineffective assistance of counsel.

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

Warner and Forst, JJ., concur.


text:
    Omar YSAZA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-0612
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]

      Howard Finkelstein,, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney. General, West Palm Beach, for respondent.
   On Petitioner’s Motion, for Clarification

Gerber, J.

We grant the defendant-petitioner’s motion for clarification, withdraw this Court’s opinion issued May 10, 2017, and substitute this opinion.

The defendant petitions for a writ of habeas corpus. He is charged with numerous first.degree felonies punishable by life. He argues that the first appearance judge erred in holding him without bond without determining whether the probable cause affidavit established that proof of guilt was evident or the presumption was great. We agree that the first appearance judge erred in this regard. However, we conclude the error was harmless because the probable cause affidavit establishes that proof of the defendant’s guilt is evident and the presumption is great. Therefore, we deny the petition without prejudice for petitioner to request an Arthur hearing before the assigned judge.

Procedural History

At first appearance, the judge found probable cause for the offenses. The State asked that the defendant be held without bond, arguing that the probable cause affidavit established proof of guilt was evident or the presumption was great.

The defendant responded that the State had not expressed an intent to file a motion for pretrial detention and that he • could not be detained without bond based on only a probable cánse finding. The defendant asked that, if the first appearance judge was finding only probable cause, then the State should be required to file a motion for pretrial detention to be heard by the judge to whom the case would be assigned.

The State replied that it had not filed a motion for pretrial detention, and it was asking that the defendant be held without bond* because the defendant was charged with offenses punishable by life and the probable cause, affidavit established proof of guilt was evident or the presumption was great.

The first appearance judge believed that, pursuant to Brackett v. State, 773 So.2d 564 (Fla. 4th DCA 2000), it could order the defendant held without bond at first appearance pending an Arthur hearing with the judge to whom the case would be assigned. The defendant objected that the first appearance judge would at least have to make a finding that proof of guilt was evident or the presumption was great. However, the first appearance judge stated that he read Brackett to indicate that the “proof evident, presumption great” finding does not have to occur at first appearance, and that “a full evidentiary Arthur hearing with witnesses, subpoenas, sworn statements is most appropriate” with the judge to whom the case would be assigned. The first appearance judge concluded by suggesting that defense counsel seek relief from this Court.

This petition followed. The defendant argues that the first appearance judge erred in holding him without bond without determining whether the probable cause affidavit established that proof of guilt was evident or the presumption was great. In its response to this Court’s order to show cause, the State acknowledges that the “first appearance [judge] may have misinterpreted Brackett’s requirement that the first appearance [judge] make the determination whether the State satisfied ‘the proof of guilt evident and the presumption great’ standard.” However, the State argues that the first appearance judge could have made such a finding based on the probable cause affidavit.

Analysis

Article I, Section 14 of the Florida Constitution provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const. These provisions also are codified within Florida Rule. of Criminal Procedure 3.131(a). As our supreme court held in State v. Paul, 783 So.2d 1042 (Fla. 2001):

[T]he Florida Constitution [provides] two broad categories in which a person charged with a crime could be denied the right to be released on bond: (1) where the person is accused of a capital crirrie or an offense punishable by life imprisonment where the proof of guilt is evident and the presumption great; or (2) where no condition of release can reasonably protect the community, assure the presence of the accused or assure the integrity of the judicial process.

Id. at 1045.

The instant case involves only the first of these two categories under Article I, Section 14. This first category was the focus of our supreme court’s review in State v. Arthur, 390 So.2d 717 (Fla. 1980).

In Arthur, our supreme court, interpreting Article I, Section 14, held that, even where the proof of guilt is evident or the presumption is great, “the accused may still come forward with a showing addressed to the court’s discretion to grant or deny bail.” Id. :at 719. The court then held, on the burden of proof, that “before release , on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great.” Id. at 720 (emphasis added). The court explained:

Simply to present the indictment or information is not sufficient. The state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty. This is the predominant view among jurisdictions with similar constitutional provisions. The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits. If, after considering the defendant’s responsive showing, the court finds that the proof is evident or the presumption great, the court then has the discretion to grant or deny bail. On this issue, the burden is on the accused to demonstrate that release on bail is appropriate. ...

Id. (emphasis added; internal citation omitted).

Because the state can carry its burden that proof of guilt is evident or the presumption is great by presenting the evidence relied upon by the state attorney in charging the crime, i.e,, the probable cause affidavit, an Arthur hearing is not required at first appearance. In other words, if a defendant is charged with a capital offense or an offense punishable by life imprisonment, and the first appearance judge finds that the probable cause affidavit (or other materials presented by the State) establishes proof of guilt is evident or the presumption is great, then the defendant can be held without bond at first appearance. The defendant then may request the judge to whom the case is assigned for an Arthur hearing to set bond.

This procedure is consistent with our decision in Brackett v. State, 773 So.2d 564 (Fla. 4th DCA 2000). In Brackett, the petitioner was charged with a capital offense. Id. at 565. “Bond was denied at the first appearance, pending a full bond hearing before the judge to whom the case was assigned.” Id. The petition for writ of habeas corpus arose because, at the full bond hearing, after the state relied on the probable cause affidavit to demonstrate that the proof of guilt was evident or the presumption was great, the trial court denied the petitioner the opportunity to present the testimony of witnesses, ruling that “[t]heir testimony [was] irrelevant.” Id. We granted the petition because “Arthur contemplates a full hearing where ‘the accused may still come forward with a showing addressed to the court’s discretion to grant or deny bail,’ ... and the trial court improperly declined to consider any testimony.” Brackett, 773 So.2d at 565 (quoting Arthur, 390 So.2d at 719); see also Rosa v. State, 21 So.3d 115 (Fla. 5th DCA 2009).

This procedure also is consistent with the Second District’s recent decision in Preston v. Gee, 133 So.3d 1218 (Fla. 2d DCA 2014). In Preston, the first appearance judge ordered the defendant held without bond based solely on the judge’s review of the “criminal report affidavit” prepared by a police officer. Id. at 1220. The defendant argued that the first appearance judge erred in finding that proof of guilt was evident or the presumption was great without conducting an evidentia-ry hearing and taking testimony. Id. at 1225. The Second District disagreed that the judge was required to take testimony. Id. Our sister court reasoned: “Arthur makes clear that the parties may make their respective showings by submitting affidavits or transcripts of sworn testimony.” Id. at 1225-26. Nevertheless, our sister court granted the defendant’s petition on the ground that the criminal report affidavit’s contents failed to establish that proof of guilt was evident or the presumption was great. Id. at 1226-27.

What makes the instant case unique is that the first appearance judge ruled it did not have to make any finding whether the probable cause affidavit established that proof of guilt was evident or the presumption was great. The first appearance judge erred in this regard. To allow the State to hold the defendant without bond pending an Arthur hearing with the judge to whom the case would be assigned, the first appearance judge was required to find that the probable cause affidavit (or other materials before the court) established that proof of guilt was evident or the presumption was great.

Nevertheless, we conclude the error was harmless. Whether the probable cause affidavit establishes that the proof of the defendant’s guilt is evident or the presumption is great is a pure question of law and, therefore, subject to the de novo standard of review. See State v. S.M., 131 So.3d 780, 784 (Fla. 2013) (where a petition for a writ of habeas corpus presents a pure question of law, the petition is subject to the de novo standard of review). We have reviewed the probable cause affidavit, which establishes that proof of the defendant’s guilt is evident and the presumption is great. Without going into great detail, we will merely state here that the police allegedly obtained physical evidence corroborating the victim’s account, and the defendant allegedly made post-Miranda incriminating statements to the police.

Thus, no useful purpose would be served in remanding for another hearing before the first appearance judge. As in Brackett, the defendant can request the judge to whom the case is assigned to conduct a full Arthur hearing where the defendant can challenge the state’s proof and seek to “demonstrate that release on bail is appropriate.” Arthur, 390 So.2d at 720.

Petition denied without prejudice for further proceedings consistent with this opinion.

Ciklin, C.J., and Levine, J., concur.

      . State v. Arthur, 390 So.2d 717 (Fla. 1980).


author: Conner, J.

text:
    STATE of Florida, Appellant, v. Stephanie CASAS, Appellee.
    No. 4D16-2672
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   Conner, J.

The State appeals the trial court’s final order dismissing the violation of probation (“VOP”) warrant against Stephanie Casas. Consistent with our decision in Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016), we reverse and remand for further proceedings.

In June 2011, Casas entered a no contest plea to a child neglect charge and was placed on probation for five years. Subsequently, in December 2011, the State filed a violation of probation affidavit alleging, among other things, that Casas absconded by changing her residence without the consent of her probation officer. The affidavit alleged that her current whereabouts were unknown. A warrant was issued in January 2012 based upon the violation of probation affidavit.

In August 2016, after being apprehended, Casas made an oral motion to dismiss the warrant against her based on this court’s decision in Mobley v. State, 197 So.3d 572, 574 (Fla. 4th DCA 2016) (quoting Shenfeld v. State, 14 So.3d 1021, 1023 (Fla. 4th DCA 2009)) (holding that “[o]nce a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based on a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.”) In support of the motion, defense counsel argued that Casas was arrested after her scheduled probation termination date had passed. The State countered that because Casas absconded, the probation was tolled as long as the affidavit and warrant were timely filed. However, the trial court ruled that it was bound by Mobley to grant the dismissal. Therefore, the trial court dismissed the violation of probation affidavit and warrant, noting that it no longer had jurisdiction because the natural termination date predated the date Casas was served with the warrant, and the warrant was not related to a new crime.

“A trial court’s decision to grant a motion to dismiss will not be reversed absent an abuse of discretion.” State v. Balezos, 765 So.2d 819, 822 (Fla. 4th DCA 2000).

As the State points out on appeal, two months after the trial court’s ruling below, we issued our decision in Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016), in which we held that “when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.” Id. at 921. In Williams, the VOP affidavit alleged that during the defendant’s probation term, he absconded from supervision and his whereabouts were unknown. Id. at 920. Under those facts, we specifically found that Mob-ley was inapplicable. Rather, we found such allegations sufficient to state a prima facie case that the defendant was “no longer under the controlling arm of the state.” Id. at 921 (quoting Francois v. State, 695 So.2d 695, 697 (Fla. 1997)).

We agree with the State that the instant case is similar to Williams, where here, as in Williams, the violation of probation warrant alleged that Casas absconded from supervision and that her current whereabouts were unknown. Accordingly, though the trial court did not have the benefit of our decision in Williams at the time, the holding in Williams controls. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Gross and Kuntz, JJ., concur.


author: Forst, J.

text:
    E-COMMERCE COFFEE CLUB, a Florida general partnership, Appellant, v. MIGA HOLDINGS, INC., a Delaware corporation, Global Trading & Marketing, LLC, Jason Eisner, individually, Luca Minna, individually, and Espresso Italiano Holding, LLC, a Florida limited liability company, Appellees.
    No. 4D15-3899
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]

      Ira Marcus and Sloan A. Carr of Ira Marcus, P.A., Fort Lauderdale, for appellant.
    Scott Pestcoe of Pestcoe & Iglesias, a Partnership of P.A.’s, Weston, for appel-lees Miga Holdings, Inc., Espresso Italiano Holding, LLC, and Luca Minna.
   Forst, J.

The complex and convoluted history of the purchase of a business by Appellant E-Commeree Coffee Club from the Appel-lees involved at least three separate lawsuits and an appeal from judgment in one of those three. The parties attempted to settle these suits through a single agreement (“the Settlement Agreement”). In this action initiated by Appellant to enforce the Settlement Agreement, we hold that the trial court made several significant errors in its handling of evidence below. Therefore, we reverse and remand for a new hearing in all respects.

Background

The proceedings between Appellant and the Appellees involve the sale of a coffee-distribution business from the latter to the former. As part of the sale process, Appel-lees hired an accountant named Phil Shechter to create a report valuing the business being sold. Shechter produced a report for Appellees which valued the business at approximately $1.2 million. This report (“Report 1”) also stated that the opinions expressed were based on the information available to Shechter at the time and that he reserved the right to update the report should additional information become available.

After Report 1 was created, Appellees filed with the trial court an affidavit created by Jason Eisner, one of the Appellees. This affidavit stated that the business being sold had marketing expenses in 2011 of approximately $662,000.

Following the creation of Report 1 and the filing of the Eisner Affidavit, the parties entered into the Settlement Agreement in an attempt to resolve all four pending actions. Section 6 of the Settlement Agreement states in relevant part:

The Parties acknowledge that Phil Shechter, Global’s valuation expert, is in the process of preparing a Revised Supplemental Valuation Report. (“Supplemental Report or Final Valuation”)....
The Parties and specifically, [Buyers] stipulate and agree, that each of them shall be bound by Phil Shechter’s Final Valuation, which said Valuation shall be conclusive and binding upon all the Parties. However, both parties reserve the right to verify Phil Schechter’s conclusions and contest his findings.

After the Settlement Agreement was drafted, Shechter submitted an “Updated Expert Report” (“Report 2”). In Report 2, Shechter recognized that he had been hired by both Appellant and Appellees, rather than by Appellees alone as he was for Report 1. Report 2 concluded that the business being sold was valued at either $527,000 or $821,000 depending on whether certain sales should be considered. Report 2 did not take into account any overhead costs or marketing expenses.

The same day as Report 2 was issued, Appellees moved the court to compel settlement under the agreement. In the meantime, Appellant took issue with Report 2’s failure to include overhead and marketing expenses and contacted Shechter. Realizing that the parties disagreed on the nature of the service he was to provide, Shechter agreed to issue a new report which included the items desired by Appellant.

Shechter’s final report, “Report 3,” valued the sold business at $190,000. This report considered the $662,000 in marketing expenses described in the Eisner Affidavit. Appellant moved the court to recognize Report 3 as the “Revised Supplemental Valuation Report” (“RSVR”) described in Section 6 of the Settlement Agreement and to enforce that agreement.

At the hearing on the enforcement of the Settlement Agreement, Appellant sought to introduce evidence of Report 1 and other pre-agreement documentation to show the intent of the parties regarding the term “RSVR.” The trial court largely agreed with Appellees that pre-agreement evidence, including Report 1, was inadmissible.

Toward the end of the hearing, evidence was introduced which indicated that the Eisner Affidavit, which Appellant argues induced it into entering the Settlement Agreement in the first place, was fraudulent in both its contents and in the fact that it was not properly executed. The trial court struck not only the affidavit but also all evidence and testimony regarding Report 3 because that report was based, in part, upon the affidavit. Appellant attempted to introduce other evidence at the hearing which would support Report 3’s consideration of $662,000 in marketing expenses, but the trial court abruptly cut off the parties, asked for proposed final orders, and stated “I’m done.”

The trial court subsequently entered an order enforcing the Settlement Agreement and finding Report 2 to be the RSVR contemplated by the agreement. This appeal followed.

Analysis

The appeal raises a wide range of issues to this Court, but we need not and do not address them all. Each stem from a single underlying error which our reversal should resolve—the trial court’s failure to admit relevant evidence and its cutting off Appellant’s attempts to present further evidence.

Trial court determinations of the relevancy of evidence are reviewed for an abuse of discretion. Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008). Whether a contract is ambiguous is reviewed de novo. Bd. of Trs. of the Internal Improvement Tr. Fund v. Lost Tree Vill. Corp., 805 So.2d 22, 26 (Fla. 4th DCA 2001).

Here, Appellant attempted to introduce evidence'that the term “RSVR,” as used in the Settlement Agreement, was ambiguous. We agree that the- term was ambiguous as defined in Section 6 of the Settlement Agreement. The second paragraph of Section 6 states that the RSVR “shall be conclusive and binding , upon all the Parties.” The very next sentence, however, states that , “both, parties reserve the right to verify Phil Shechter’s conclusions and contest his findings.”

“A patent ambiguity is intrinsically apparent on the face of the document due to ‘the use of defective, obscure, or insensible language.”’ Nationstar Mortg. Co. v. Levine, 216 So.3d 711 (Fla. 4th DCA 2017) (quoting Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995)). An internal contradiction can constitute a patent ambiguity. Id. Here, there is a clear internal contradiction in stating that the RSVR “shall be conclusive and binding upon all the Parties” but then providing that “both parties reserve the right to verify Phil Shechter’s conclusions and contest his findings.” Thus, the intent of the parties with respect to the finality of the in-the-works Shechter report’s findings and conclusions is unclear from the face of the document.

On remand, the court should consider the relevant evidence going to the meaning of the term “Revised Supplemental Valuation Report” in determining which, if either, of Reports 2 and 3 was the “RSVR” contemplated by the parties via the Settlement Agreement. The court should also allow Appellant to present evidence beyond the Eisner Affidavit which might support the conclusions in Report 3. See Elmore v. Enterprise Developers, Inc., 418 So.2d 1078, 1079 (Fla. 4th DCA 1982) (“Where, the language of a contract is ambiguous or uncertain ip meaning, the court may receive evidence extrinsic to the contract for the purpose of determining the intent of the parties at the time they executed the contract.”).

Additionally, “[t]he constitutional guarantee of due process, dictates a full and fair opportunity to he heard in judicial proceedings. The failure to give a party the chance to present witnesses.or testify violates this fundamental, right.” Cole v. Cole, 159 So.3d 124, 125 (Fla. 3d DCA 2013); see also Julia v. Julia, 146 So.3d 516, 520-21 (Fla. 4th DCA 2014) (describing a due. process violation when a party was not allowed to present her full case or give closing arguments). Here, Appellant was in the middle of its case when it was revealed that the Eisner Affidavit, filed by Appellees, was fraudulent. The court therefore struck the affidavit and all testimony based upon it, including testimony regarding Report 3 which relied on the affidavit. This itself does not appear.improper. But when Appellant attempted to introduce further evidence of the truth of the matter, asserted in the affidavit- so that Report 3 and the related testimony could be rehabilitated, the court abruptly asked the parties for proposed final orders. Appellant expressed confusion, with counsel saying that he was “not understanding” the court and that he “didn’t know Your Honor was going to cut us off.” Counsel then requested to read part of a deposition into the record, and the court said “I’m done.” No further evidence was taken. The trial court’s actions constitute a clear violation of Appellant’s right to procedural due process. See Cole, 159 So.3d at 125; Julia, 146 So.3d at 520-21. Appellant never rested its case and clearly intended to introduce more evidence, which the trial court summarily excluded as a whole. This was error and requires reversal. ,

Conclusion

Because the trial court erred in failing to admit evidence which would have, at the very least, gone to resolving the ambiguity raised by Appellant, as well as erred by essentially walking off the bench mid-hearing, we reverse the order on the motion to enforce the Settlement Agreement and remand for a new hearing. At the new hearing, the court will consider the relevant evidence going to the meaning of the term “Revised Supplemental Valuation Report” in determining which, if either, of Reports 2 and 3 was the “RSVR” contemplated by the parties via the Settlement Agreement. The court should also allow Appellant to present evidence beyond the Eisner Affidavit which might support the conclusions in Report 3. We offer no opinion on whether such evidence will be sufficient, and no opinion on which, if either, report should be recognized as the report contemplated by the Settlement Agreement.

Reversed and remanded for a new hearing.

Damoorgian and Gerber, JJ., concur.


author: Per Curiam.

text:
    Giti Behnejad NADERI, Appellant, v. Mohommad G. NADERI, Appellee.
    No. 4D16-2297
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    Paul Alexander Bravo of P.A. Bravo, Coral Gables, for appellant.
    Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellee.
   Per Curiam.

Affirmed. See Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1204 (Fla. 4th DCA 2010); Flemenbaum v. Flemenbaum, 636 So.2d 679, 680 (Fla. 4th DCA 1994).

Gross, Levine and Kuntz, JJ., concur.