author: SALARIO, Judge..

text:
    David VERIZZO, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Successor Trustee for JPMorgan Chase Bank, N.A., as Trustee for Novastar Mortgage Funding Trust, Series 2006-3 Novastar Home Equity Loan Asset-Backed Certificates 2006-3, Appellee.
    Case No. 2D15-2508
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017

      David Verizzo, pro se.
    Diana B. Matson and Joshua R. Levine, of Baker, Donelson, ■ Bearman, Caldwell and Berkowitz, PC, Fort Lauderdale, for Appellee.
   SALARIO, Judge..

We are again required to reverse a final judgment of foreclosure because of the plaintiffs failure to prove at trial the existence of standing at the inception of the case. See Stoltz v. Aurora Loan Servs., LLC, 194 So.3d 1097, 1098 (Fla. 2d DCA 2016) (“We are again-required to reverse a final judgment of foreclosure because of the plaintiffs failure to prove .at trial the existence of standing at inception of .the case.”). We remand for entry of an order of involuntary dismissal' under Florida Rule of Civil Procedure 1.420(b).

The proceedings leading to the judgment on review span many years, but the facts relevant to our decision are few. On April 24, 2008, The Bank of New York, as successor trustee for Novastar Mortgage Funding Trust Series 2006-3, filed a complaint against David Verizzo to reestablish a lost note and to foreclose a mortgage securing the debt the note evidenced. The bank attached a . copy of the mortgage but not a copy of the note. The mortgage stated that the borrower and mortgagor was Mr. Verizzo, that the lender was Novastar Mortgage, Inc., and that the mortgagee was Mortgage Electronic Registration Systems, Inc., as Novastar’s nominee.

Mr. Verizzo filed an answer containing an affirmative defense that the bank lacked standing to enforce the note. That answer put the bank on notice that its standing was at issue and imposed upon it the burden to prove at trial that it had standing to enforce the note and mortgage. See Dickson v. Roseville Props., LLC, 198 So.3d 48, 50 (Fla. 2d DCA 2015); see also May v. PHH Mortg. Corp., 150 So.3d 247, 248 (Fla. 2d DCA 2014) (holding that the plaintiff in a foreclosure action has the burden to prove standing at trial). That burden included proving not only its standing at the time the case was tried but also when the case was filed. May, 150 So.3d at 248-49.

In the mine-run foreclosure case that comes to this court, the plaintiffs standing to enforce the note and mortgage hinges on whether the plaintiff is the holder of the note. See § 673.3011(1), Fla. Stat. (2008); see, e.g., Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015). That is the issue in this case as well. Because the bank was not the original lender on the note — Novastar was — it could prove standing as a holder by presenting the note with a blank in-dorsement or special indorsement naming it as the holder, an assignment of the note to it, or other admissible evidence sufficient to prove that it is in fact the note-holder. See Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013).

After lengthy pretrial litigation— including two bankruptcies and a pit stop in this court — the case went to, trial in July 2015. The bank presented the testimony of an employee of a mortgage servicer engaged by the bank and five documents: (1) a copy of a power of attorney dated April 14, 2014, through which “The Bank of New York Mellon f/k/a the Bank of New York as successor in interest to JPMorgan Chase Bank, N.A.,” granted the servicer the right to act on the bank’s behalf with respect to loans in the trust for which the bank purports to act as trustee here; (2) a copy of the note dated May 11, 2006; (3) a copy of the mortgage; (4) a copy of Mr. Verizzo’s payment history; and (5) a copy of a default notice dated January 14, 2008, which was sent to Mr. Verizzo by a different servicer that identified “US Bank” as the “creditor.” The copy of the note showed Novastar as the lender and contained no blank or special indorsement. Rather, it showed that Novastar was the original owner and holder of a note that had not been negotiated. See §§ 673.1101(1) (identifying the party to whom an instrument is initially payable), .2011(2) (defining the steps Novastar was required to take to negotiate the instrument as transfer of possession and in-dorsement).

The bank did not introduce any evidence at trial explaining how it became the note-holder. The representative of the servicer did not testify about what happened to the note after Novastar made the loan or how it came to the bank. The bank’s trial evidence thus left significant evidentiary gaps concerning whether the note was negotiated — and, if so, when and by whom — and whether the bank became the holder — and, if so, when and how. There was also no testimony or documentary evidence showing that Mr. Verizzo’s loan was actually a part of the trust for which the bank purports to serve as trustee.

Assuming for argument’s sake that even with these evidentiary gaps, the bank made a prima facie case of its standing at the time of trial, it was nonetheless insufficient to show its standing at the time it filed the foreclosure complaint. On the record the bank made, we know that Novas-tar was the noteholder when the loan was made in May 2006, but who had authority to enforce the note when the complaint was filed in April 2008 is anybody’s guess. We might speculate based on the bank’s documents that after the loan was made it was put into the trust, that JPMorgan was originally appointed trustee, that the bank became the'successor trustee prior to filing, and that the note was negotiated in accord with those transactions. But speculation is all that is. The bank presented no direct or circumstantial evidence to take these assumptions from the level of speculation to the level of prima facie proof that it held the note or otherwise had standing at the time it filed the foreclosure complaint. See Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (“[P]laintiff may demonstrate standing by submitting the note bearing a special endorsement in favor of the plaintiff or a blank endorsement, evidence of an assignment from the payee to the plaintiff, evidence of equitable transfer, or other evidence ... proving the plaintiffs status as the holder of the note.” (citing McLean v. JP Morgan Chase Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012))).

The bank says that we can find the missing links in two assignments that transferred the mortgage — but not the note — from MERS to the bank dated May 12, 2008, and July 6, 2010, which Mr. Ver-izzo had admitted into evidence during his defense case. There are two problems here. First of all, the assignments do not purport to transfer the note, and our court has held that an assignment of mortgage that does not also transfer the note, at least standing alone, does not prove that a foreclosure plaintiff has the rights to enforce the note. Caballero v. U.S. Bank Nat’l Ass’n, 189 So.3d 1044, 1046 (Fla. 2d DCA 2016) (“[T]he assignment was insufficient to show standing because it only purported to assign the mortgage, not the note.”); see also Eaddy v. Bank of Am., N.A., 197 So.3d 1278, 1280 (Fla. 2d DCA 2016) (holding that plaintiff failed to prove standing where “the assignment of mortgage attached to [the] amended complaint reflects only the transfer of the mortgage and not the note”). Furthermore, even if an assignment of mortgage could, taken with other facts, constitute some quantum of circumstantial evidence that any rights related to the .note were also.- transferred, the assignments here are dated after .the filing of the bank’s complaint. Because the assignments came after the bank initiated these proceedings, they .do not say anything about whether the bank had standing when it initiated them. See Dickson, 198 So.3d at 51 (“[P]ostfiling assignments of mortgage ... could establish only that [the plaintiff] acquired standing.in some manner after it filed the complaint.”); see also Russell, 163 So.3d at 643 (holding that postfiling power of attorney did not establish standing at the time of filing).

The bank also asserts that excerpts of a pooling and servicing agreement dated May 2006 among Novastar, U.S. Bank, and JPMorgan prove its standing at the inception of the case. Even if we agreed with the bank about the import of. these. excerpts — we do not, but further explanation is unnecessary here — it would be a moot point because they were not admitted into evidence at the trial. See Stoltz, 194 So.3d at 1098-99 (declining to affirm foreclosure judgment on the basis of an assignment in the court file where assignment had not been admitted into evidence). They were not admitted into evidence because the bank objected to their being admitted, and the trial court sustained that objection. Having .invited the trial court to exclude the excerpts of the pooling and servicing agreement from evidence, the bank is in no position to treat them as though they had been admitted into evidence for purposes of appeal, Cf. Tate v. Tate, 91 So.3d 199, 204 (Fla. 2d DCA 2012) (“[T]he' invited error rule prevents [a party] from complaining on appeal about a ruling [it] invited the trial court to make.”).

Mr.. Verizzo made a motion for involuntary dismissal based on the bank’s failure to prove standing, which the trial court treated as part of his closing argument. Because the.bank failed to make a prima facie case that it had standing at the inception of the case, that motion should have been granted. See Russell, 163 So.3d at 643; May, 150 So.3d at 249. Accordingly, we reverse the final judgment of foreclosure and remand the case to the trial court .with instructions to enter an order of involuntary dismissal. This resolution renders Mr. Verizzo’s other appellate arguments moot, and we therefore decline to address them.

Reversed; remanded with instructions.

KELLY and BLACK, JJ., Concur.

      . On the day of trial, the trial court substituted "The Bank of New York Mellon” for "The Bank of New York” as the plaintiff. For purposes of determining whether the foreclosing plaintiff had standing at inception, any difference between these two entities is not material because a substituted plaintiff acquires only such standing as the original plaintiff had at the inception of the case. See Corrigan v. Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016) (en banc) (quoting Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015)). For ease of reference, we refer to the appellee here (plaintiff below) as "the bank.”

      . The lost note was discovered and filed with the court prior to trial. See Verizzo v. Bank of N.Y., 28 So.3d 976, 977 (Fla. 2d DCA 2010). Although the complaint was not amended to remove the lost note count or to more accurately assert the purported basis for the bank’s standing on the foreclosure count once the note was found, it is clear from the record that the count for reestablishment of a lost note by its owner was not an issue by the time of trial.

      . The bank has not specifically contended that it was a nonholder in possession with the rights of a holder under section 673.3011(2) for the purposes of standing. We do, however, note that some of its arguments regarding its evidence of proof of standing alternatively might be construed as such. See, e.g., St. Clair v. U.S. Bank Nat'l Ass'n, 173 So.3d 1045, 1046-47 (Fla. 2d DCA 2015). Regardless, as discussed in this opinion, the evidence was not sufficient to prove when the bank acquired possession of the note or the requisite rights of enforcement.

      . The trial court originally granted the bank a summary judgment of foreclosure. We reversed that judgment both because the bank failed to comply with the procedural requirements of rule 1.510(c) — it did not serve its summary judgment evidence twenty days before the summary judgment hearing — and because the summary judgment record left genuine issues of material fact as to the bank’s standing to enforce the note and mortgage. See Verizzo, 28 So.3d at 977-78.

      . Several years prior to trial, the bank filed a document purporting to be the original note. That document contained an undated special indorsement from Novastar to “J.P. Morgan Chase Bank, as Trustee.” The bank made no effort to have the original or a copy of the note bearing the indorsement admitted into evidence, however, and the trial court thus had before it at trial only a copy of the note without any indorsement. We need not address what this undated, indorsed note may have proved about whether the bank had standing to enforce the note at the time of trial by way of either a second indorsement or as a successor trustee. See § 673.1101(3)(b)(1) (indicating that holder-ship of a note specially endorsed to a trustee may become payable to a successor trustee). Whatever it may have proved, it would not, without other direct or circumstantial evidence showing that the bank came into possession of the note before the complaint was filed, have proved the bank’s standing at inception. That is because an undated indorsement that is not presented to the court until after the original complaint is filed does not show whether the plaintiff who filed the case held the note at the time it was filed. See Corrigan, 189 So.3d at 189 (holding that a note with an undated, blank indorsement did not establish that plaintiff had possession of the note at the inception of the case); see also Sorrell v. U.S. Bank Nat'l Ass'n, 198 So.3d 845, 847 (Fla. 2d DCA 2016) ("Standing cannot be established by simply filing a note with an undated indorsement or allonge months after the original complaint was filed.”).


source: Caselaw Access Project

author: Gross, J.

license: Public Domain

text:
    G.R.N., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-3687 and 4D16-3688
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, .West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Appellant was found delinquent on. the charge of improper exhibition of a dangerous weapon, which was the basis of a violation of probation. We reverse the finding of delinquency because the state failed to prove that- appellant wielded a “weapon” within the meaning of section 790.001(13), Florida Statutes (2016).

The key state witness broke up an argument between appellant and his brother. She saw appellant holding a knife with the point down but could not describe it because “the handle was in [appellant’s] hand.” The witness saw only the point of the blade and did not know its length. Appellant went back into his house and got a second knife, which the witness was also unable to describe. Police officers who responded to the scene did not recover any knives. Appellant timely moved for a judgment of dismissal, focusing on the deficiency in the description of what appellant held in his hand when he confronted his brother.

The difficulty in this case arises from the wording of the statute. Improper exhibition of a dangerous weapon or firearm occurs when “any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense.” § 790.10, Fla. Stat. (2016) (emphasis added). If the alleged weapon is not one specified in the statute then it must qualify as an “other weapon.” Section 790.001(13) defines “weapon” as “any dirk, knife, metallic knuckles, slung-shot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (Emphasis added).

When a knife is the weapon involved in a section 790.10 charge, it is necessary for the state to establish that the knife is not a “common pocketknife,” which is specifically excluded from the definition of the crime by section 790.001(13).

This was the approach taken by the first district in J.R. v. State, 967 So.2d 365 (Fla. 1st DCA 2007). The defendant was accused of holding a knife to his girlfriend’s throat and was charged with aggravated assault with a deadly weapon and improperly exhibiting a dangerous weapon. Id. at 366. At trial, the victim and another eyewitness receded from their earlier statements, testifying “they could not recall the knife’s appearance, characteristics, or dimensions.” Id. Although the aggravated assault charge was dropped, the defendant was convicted of improper exhibition of a dangerous weapon. Id.

The first district acknowledged that appellate courts are generally deferential to the finder of fact on the characterization of an item as a “dangerous weapon”. Id. However, since there was no evidence describing the “appearance, characteristics, or dimensions” of the defendant’s knife, the evidence failed “to remove the knife from any of the statutory exceptions listed in the definition of ‘weapon’ in section 790.001(13).” Id. at 367. Reversing the adjudication of delinquency, the court concluded “the State presented no evidence by which the trial judge could possibly have found the knife constituted a ‘dangerous weapon’ which appellant exhibited ‘in a rude, careless, angry, or threatening manner.’ ” Id.

Two other courts have taken a different approach as to whether a knife qualifies as a “weapon” under section 790.001(13), focusing on the fact that a pocketknife was not folded in the closed position. In Porter v. State, the defendant was found with an open pocketknife with a blade measuring 1 3/4 inches. 798 So.2d 855, 855 (Fla. 5th DCA 2001). The fifth district concluded that a pocketknife in the open position in the defendant’s pocket did not fall within the “common pocketknife” exception in section 790.001(13). Id. at 856. Relying on Porter, the third district has also held that “[a] pocketknife which is found in the open position ... does not fall within the common pocketknife exception.” J.R.P. v. State, 979 So.2d 1178, 1179 (Fla. 3d DCA 2008).

The better approach to the “common pocketknife” exception is that taken by the first district in J.R. v. State. The plain language of the statute draws no distinction between closed or open pocketknives. A “common pocketknife” is just as much a pocketknife when it is open as when it is closed; its characteristic of “commonality” is the same either way. Neither Porter nor J.R.P. provide a sound rationale for tinkering with the language of the statute to limit the exception to folded pocketknives.

Here, the state’s civilian witness saw the point of a knife, but was unable to further describe the knife’s appearance, characteristics, or dimensions. The state failed to produce sufficient evidence that the pocketknife exception did not apply. We therefore reverse the adjudication of delinquency and the finding of a violation of probation and remand for the entry of a judgment of dismissal.

Reversed and remanded.

Conner and Kuntz, JJ., concur.

      . Section 790.001(13) was attacked as unconstitutionally vague for its failure to define the term "common pocketknife.” L.B. v. State, 700 So.2d 370 (Fla. 1997). The supreme court agreed that in some cases it may be difficult to determine if a particular pocketknife is "common,” but nevertheless, found the statute constitutional, noting "in the vast majority of cases, it will be evident whether one’s particular knife is a ‘common pocketknife.' ” Id. at 373. Relying on the Attorney General’s opinion that a pocketknife with a blade of 4 inches or less was a “common pocketknife,” the supreme court held a pocketknife with a 3 3/4 inch blade fell within the statutory exception to the definition of a weapon. Id. The conviction for possession of a weapon on school property was reversed. Id.


text:
    Cynthia RUSSOMANO f/k/a Cynthia C. Spall, an individual, Appellant, v. Joseph MARESCA, an individual, and JEM Palm Beach, LLC, a Florida limited liability company, d/b/a Palm Beach Waterfront Fitness Club, Appellees.
    No. 4D16-1255
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      William H. Pincus and Melanie L. Campbell of Pincus & Currier LLP, West Palm Beach, for appellant.
    Jared A. Levy of Dimond Kaplan & Rothstein, P.A., West Palm Beach, for ap-pellees.
   Gross, J.

We reverse an order dismissing this case for an improper choice of venue and remand for the entry of an order transferring the case to the proper county.

The parties here entered into an operating agreement for JEM Palm Beach, LLC to operate a gym in Palm Beach County. Three years later, Cynthia Russomano filed a- lawsuit against appellees Joseph Maresca and JEM Palm Beach arising out of the operating agreement. The operating agreement was attached to the complaint as an exhibit.

The trial court dismissed the case upon the appellees’ motion for change of venue, pursuant to the “Jurisdiction and Venue” provision of the agreement.

The agreement acknowledged ■ that its performance and execution would occur in Palm Beach County. Nonetheless, the venue provision stated;

Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in Lee County or the United States District Court, Southern District of Florida, Each party consents to jurisdiction of such court in any civil action or legal proceeding and waives any objection to the laying of venue of any civil action or legal proceeding in such court.

The agreement’s choice of Lee County is unambiguous. If a forum selection clause “ ‘state[s] or clearly indicated] that any litigation must or shall be initiated'in a specified forum,’ then it is mandatory.” Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007) (quoting Shoppes L.P. v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002)). Russomano did not make a showing that enforcement of the forum selection clause would be unjust or unreasonable. See Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So.3d 592, 594-95 (Fla. 3d DCA 2013). Thus, the trial court did not err in enforcing the choice of venue provision of the operating agreement. Any claim for reformation, of the choice of venue provision due to mutual mistake must be pursued in Lee County.

The trial court erred in dismissing the case instead of transferring it to Lee County. We reject appellees’ contention that Golf Scoring Systems Unlimited, Inc. v. Remedio, 877 So.2d 827 (Fla. 4th DCA 2004), created a . rule of dismissal, rather than transfer.

Florida Rule of Civil Procedure 1.060(b) provides that “[w]hen any action is filed laying venue in the wrong county, the court may transfer the action ... to the proper court in any county where it might have been brought in accordance with the venue statutes,” Even though the wording of the rule “is a grant of authority, the word may in the foregoing rule functions like should.” Chase v. Jowdy Indus., Inc., 913 So.2d 1173, 1175 (Fla. 4th DCA 2005) (emphasis in original).

Golf Scoring did not evaluate the merits of dismissal versus transfer as the remedy for filing suit in the wrong venue. That ease involved a forum selection clause providing that Broward County was “the proper venue.” 877 So.2d at 828. The plaintiff brought suit in Martin County. Id. The defendant moved to dismiss based on the forum selection clause. Id. The trial court denied the motion, finding the clause permissive. Id. On appeal, this court ruled the forum selection clause “clearly indicated] that it [wa]s mandatory in nature.” Id. at 829. As such, Broward County was “the exclusive and mandatory forum in the case at bar.” Id. Without any discussion, this court reversed and remanded for dismissal, not transfer. Id There is nothing in Golf Scoring to suggest that the notion of a transfer to Broward County was ever presented to the trial court or to this court'. Because the transfer/dismissal issue was not a litigated issue in the case, Golf Scoring does not stand for the proposition that dismissal is the proper remedy in all cases filed in the wrong venue.

The widely accepted practice in Florida courts, including the Florida Supreme Court, is that where venue is improper, the case should be transferred, not dismissed. See Bush v. State, 945 So.2d 1207, 1214 (Fla. 2006) (recognizing that rule 1.060(b) “gives a court authority to transfer a case when improper venue is sought; and transfer, rather than dismissal, is the preferred remedy in such a case.”); Fla. Gamco, Inc. v. Fontaine, 68 So.3d 923, 928 (Fla. 4th DCA 2011) (explaining “the court should, if possible, transfer the case to the correct venue ... rather than dismiss it.”); East Coast Karate Studios, Inc. v. Lifestyle Martial Arts, LLC, 65 So.3d 1127 (Fla. 4th DCA 2011) (reversing and remanding for transfer to the proper venue); Chase, 913 So.2d at 1176 (holding that transfer was proper remedy for improper venue, even though the issue of transfer was not raised until the motion hearing in circuit court); Carr v. Stetson, 741 So.2d 567, 569 (Fla. 4th DCA 1999) (reversing the order of dismissal for improper venue and remanding for the trial court to transfer the case to a proper venue because dismissal is disfavored); McClain v. Crawford, 815 So.2d 777, 778 (Fla. 2d DCA 2002) (holding that “even if venue was improper, the case should have been transferred, not dismissed.”); Gross v. Franklin, 387 So.2d 1046, 1049 (Fla. 3d DCA 1980) (explaining that a rule 1.140 motion to. dismiss for improper venue “is, in. effect, a motion to transfer.”).

We affirm, in part, reverse in part, and remand to the circuit court for the entry of an order transferring the case to Lee County.

Conner and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Linsey RONK f/k/a Linsey Willis, Former Wife, Appellant, v. Christopher WILLIS, Former Husband, Appellee.
    CASE NO. 1D16-5172
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017.

      Clark H. Henderson of Campbell & Henderson, PLLC, Shalimar, for Appellant.
    Caryn A. Van Matre of Caryn A. Van Matre, P.A., Pensacola, for Appellee.
   PER CURIAM.

In 2007, a North Carolina court granted Christopher and Linsey Ronk a divorce. The court also required Christopher to pay Linsey about one thousand dollars per month in child support. Years later, after the Ronks had moved out of North Carolina, the couple’s only child went to live with Christopher in Florida. No court ordered the change in residence, but no court had ever formally said anything about where the child was to live; up to that point, the Ronks had more or less agreed about parenting issues.

At some point, their ability to get along deteriorated, and the Ronks went to court in Florida with disputes about timesharing, child support, and other things. The Florida court domesticated the original North Carolina judgment, and it entered the final judgment at issue here. Linsey Ronk appeals, arguing that the trial court erred in several respects.

We affirm in large part. We find no abuse of discretion in.the trial court’s decisions on custody, timesharing, or ultimate decision-making — or in its efforts to ensure parties comply with its orders. We reverse in part, however, because the trial court should not have ordered child support retroactive to a date before the petition for modification was filed. See Anderson v. Anderson, 609 So.2d 87, 88 (Fla. 1st DCA 1992) (“It is error to award child support which is retroactive to a date prior to a request for modification of an order which previously addressed child support.”); Wertheim v. Wertheim, 667 So.2d 331, 332 (Fla. 1st DCA 1995). Similarly, the court should not have awarded a reimbursement of child support payments made before the petition for modification was filed. Cf. id. On remand, the trial court should limit any such relief to a period of time beginning on the date the petition was filed.

AFFIRMED in part, REVERSED in part, and REMANDED.

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Marvin SCOTT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2257
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017
    Marvin Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as successive. See Fla. R. App. P. 9.141(d)(6)(C).

ROBERTS, C.J., LEWIS and ' BILBREY, JJ., CONCUR.


text:
    John GODFREY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5714
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The order authorizing involuntary medical treatment is affirmed as the requirements of section 916.107(3)(a), Florida Statutes (2016), were proved by competent, substantial evidence. We note that order is not moot despite the fact that the 90-day period of treatment mandated by the order has expired. See Godwin v. State, 593 So.2d 211 (Fla. 1992), and Hills v. State, 699 So.2d 735 (Fla. 1st DCA 1997).

AFFIRMED.

ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.


author: VILLANTI, Chief Judge.

text:
    Gina PAETH, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as trustee FOR the C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, Series 2006-RP2, Appellee.
    Case No. 2D16-2953
    District Court of Appeal of Florida, Second District.
    Opinion filed June 23, 2017

      Gina Paeth, pro se.,
    Michael Eisenband and Nicole Topper of Blank Rome LLP, Fort Lauderdale, for Appellee.
   VILLANTI, Chief Judge.

Gina Paeth seeks review of the final judgment of foreclosure entered in favor of U.S. Bank National Association. We reject without comment Paeth’s arguments addressed to the Bank’s standing and the sufficiency of its evidence to support the order of foreclosure. However, we agree with Paeth that the evidence introduced by the Bank to establish the amount of Paeth’s indebtedness does not support the amounts included in the final judgment. Therefore, we reverse the final judgment as to the amount of the indebtedness and remand for further proceedings.

At the bench trial on its foreclosure complaint; the Bank offered into evidence the note and mortgage, various allonges, a modification of the note, a Pooling and Service Agreement, and a payment history that began in 2001 — when the Bank first took possession of the note — and ended, for the most part, on Séptember 1, 2011. Paeth did not object to the introduction of any of this documentary evidence at trial. Now, however, she argues that the trial court erred by admitting the payment history into evidence because it was hearsay, and she argues that the payment history, once admitted, was insufficient to support' the amount of the indebtedness included in the final judgment.

As to Paeth’s argument concerning the admissibility of the payment history, this issue is not properly before this court because Paeth did not object to the admission of the document below. While Paeth is entitled to raise the sufficiency of the evidence on appeal without an objection raised below, see Fla. R. Civ. P. 1.530(e), this rule does not permit her to challenge the admissibility of evidence in the absence of an objection — only the sufficiency of the admitted evidence. Therefore, any objection to the admissibility of the payment history was waived and cannot support a reversal on appeal.

However, Paeth also argues that the payment history was legally insufficient to support the trial court’s determination of the amount of indebtedness because it is incomplete — an argument concerning the sufficiency of the admitted evidence that is properly before this court in this appeal. We reject Paeth’s arguments concerning the amount of unpaid principal and interest because those amounts are supported by the evidence, including the note, the note modification, and the payment history. However, the remaining amounts included in the judgment — for property taxes, hazard insurance, and a “prior escrow balance” — are not supported by any of these documents. Instead, the final judgment includes $7714.54 for these items, while the payment history shows a balance of only $7216.67 for these items. Further, other items included in the final judgment for filing fees, “title information,” property inspections, and the like are not supported by either the payment history, an affidavit, or any other evidence in the record. Therefore, the amounts awarded in the final judgment for all amounts other than unpaid principal and interest are not supported by the evidence introduced at trial, and we must reverse the final judgment to the extent that it includes these amounts.

The remaining question is the proper scope of the proceedings on remand. This court has previously made a distinction between cases in which evidence of indebtedness was improperly admitted or was insufficient from those in which no evidence of the amount of indebtedness was admitted. See Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 282-83 (Fla. 2d DCA 2014). In the former cases, in which some evidence was offered, the courts have remanded for further proceedings at which the plaintiff could, in essence, try again. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778 (Fla. 2d DCA 2013); Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825 (Fla. 3d DCA 2014). In the latter cases, however, in which the plaintiff failed to offer any evidence of the amount of the indebtedness, the courts have held that the proper remedy is to remand for an involuntary dismissal rather than to give the party making the error “an opportunity to retry their case.” Wolkoff, 153 So.3d at 283 (quoting Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 956 (Fla. 2d DCA 2013)).

Here, as in Sas and Kelsey, the Bank offered some evidence, albeit insufficient, to prove the amount of indebtedness; therefore, as in Sas and Kelsey, the Bank is entitled to further proceedings on remand to determine the amount of the indebtedness. Notably, this is the only relief Paeth requested in her appeal. Therefore, on remand, the trial court should conduct whatever further proceedings are needed to give the Bank an opportunity to prove the amount of Paeth’s indebtedness.

Affirmed in part, reversed in part, and remanded for further proceedings.

LaROSE and SLEET, JJ., Concur.


text:
    Eliud Martir MONTALVO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-39
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017
    Eliud Mártir Montalvo, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Eliud Mártir Montalvo appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erroneously denied Montalvo’s timely filed amended motion, we reverse and remand.

Montalvo filed a timely rule 3.850 motion asserting numerous claims. The trial court struck the motion, giving him leave to amend within sixty days, because he failed to allege how he was prejudiced. Montalvo timely moved for an extension of time to file his amended motion. The trial court granted the motion and gave Montalvo until September 12, 2016, to file his amended motion. Pursuant to the mailbox rule in Florida Rule of Appellate Procedure 9.420, as evidenced by the prison mail stamp, Montalvo filed his amended post-conviction motion on July 29, 2016. However, for reasons not apparent from the record, the motion was not docketed by the clerk of court until December 8, 2016. That same day, apparently unaware that an amended motion had been filed, the trial court entered an order denying the original motion, concluding that Montalvo had “failed to amend his motion for postconviction relief.”

Based on the prison mail stamp, the amended motion was timely. Therefore, we reverse and remand for the trial court to consider the timely filed amended rule 3.850 motion.

REVERSED and REMANDED.

COHEN, C.J., ORFINGER and EDWARDS, JJ., concur.


text:
    Peter PRAHASKY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1579
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      David W. Collins, of Collins Law Firm, Monticello, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 25, 2016 order denying Petitioner’s motion for post-conviction relief, filed in Case No. 11-CF-182, in the Circuit Court in and for Her-nando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Marshall S. VAUGHAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-316
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017
    Marshall S. Vaughan, Raiford, pro se.'
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Marshall Vaughan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We reverse.

Vaughan pleaded nolo contendere to felony battery and was placed on five years of drug offender probation. About six months later, Vaughan violated his probation and was sentenced to ten years in prison. Vaughan then timely filed a motion for postconviction relief, asserting, among other things, a claim of newly discovered evidence. The postconviction court summarily denied relief, concluding that the evidence — an affidavit from a recanting witness — was not newly discovered because it was in Vaughan’s possession after his original plea, but before he pleaded to the violation of probation.

Vaughan’s newly discovered evidence claim should have been measured from when he entered his original plea, not the subsequent violation of probation proceeding. Thus, we reverse and remand to the postconviction court for further consideration.

REVERSED and REMANDED for further proceedings.

ORFINGER, LAMBERT and EDWARDS, JJ., concur.


text:
    Steven Edward DEGENNARO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3588
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant,.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Based on Ramroop v. State, 214 So.3d 657 (Fla. 2017), and the State’s proper concession of error, we reverse Steven Degennaro's conviction and sentence for attempted first-degree murder of a law enforcement officer and remand for a new trial on that charge. We also reverse the restitution order. Lastly, we remand to the trial court for resentencing on the resisting a law enforcement officer with violence count under a corrected seoresheet.

REVERSED and REMANDED,

ORFINGER, WALLIS, and LAMBERT, JJ., concur.


author: COHEN, C.J.

text:
    Thadaeus Noel GARRISON, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    Case No. 5D16-3293
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      Jonathan Edward Rose, of Jonathan Rose, P.A., Orlando, for Appellant.
    Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health Prosecution Services Unit, Tallahassee, for Appellee.
   COHEN, C.J.

Thadaeus Garrison appeals from an order imposing a two-year suspension of his nursing license, a fíne, and a reprimand following an informal hearing pursuant to section 120.57(2), Florida Statutes (2015). We affirm.

Garrison is a registered nurse. In 2016, he pleaded nolo contendere to aggravated battery with a deadly weapon and misdemeanor battery; the underlying allegations related to his involvement in a road rage incident involving a minor. Garrison was sentenced to probation for those offenses.

Garrison self-reported his plea to the Department of Health (“Department”), Board of Nursing (“Board”). The Department filed a two-count administrative complaint pursuant to sections 464.018(1)(d)(5) and 456.072(1)(c), Florida Statutes (2015). The complaint listed the statutory violations for the underlying convictions and alleged that the charges arose “from a road rage incident involving a minor.”

The case was set for an informal hearing at which Garrison appeared pro se. Garrison had filed an election of rights form and did not dispute the material facts set forth in the complaint. See § 120.57(2), Fla. Stat. (2015). At the outset of the hearing, the Department presented an investigative report to the Board and entered it into evidence without objection. The report included a copy of Garrison’s arrest affidavit for the 2015 incidents. During the hearing, the Board considered the arrest affidavit as well as Garrison’s version of the events. A member of the Board expressed concern that Garrison’s version was inconsistent with the arrest report. The Board thereafter imposed the two-year suspension, which reflected an increase over the recommended penalty. The Board’s final order adopted the findings of fact set forth in the administrative complaint.

Garrison argues that the Board fundamentally erred in considering the arrest affidavit. Generally, an administrative board may not consider matters not contained in the complaint. See, e.g., Gonzalez v. Dep’t of Health, 120 So.3d 234, 237 (Fla. 1st DCA 2013). In this case, the complaint set forth the statutory violations on which Garrison’s penalty was based and indicated that the charges stemmed from a road rage incident. The arrest affidavit, which expanded on those charges, was entered into evidence without objection. Therefore, we find no error in the Board’s consideration of the arrest affidavit given that it came into evidence without objection and dealt with a matter contained in the complaint.

Garrison also argues that the Board erred in failing to reconvene for a formal hearing once it became apparent that there were disputed issues of material fact regarding the nature of the incident leading to the charges set forth in the administrative complaint. However, Garrison did not request a formal hearing, either initially or when he thought an issue of material fact arose at the informal hearing; thus, this issue was not preserved for appeal. See Stueber v. Gallagher, 812 So.2d 454, 457 (Fla. 5th DCA 2002) (“[W]hen a party at an informal hearing does not request that the informal hearing be terminated in lieu of a formal hearing, the party waives the right to receive a formal hearing.”); cf. Gonzalez, 120 So.3d at 237 (finding that appellant’s failure to request formal hearing once it became apparent that disputed issues of material fact existed precluded appellate argument that the board was required to terminate and reconvene for such hearing).

For these reasons, we affirm.

AFFIRMED.

WALLIS and LAMBERT, JJ., concur.

      . §§ 784.045(1)(a)2., 784.03, Fla. Stat. (2015).

      . The initial recommendation was for the payment of costs and a "V2.” V2 discipline consists of a license suspension until the individual provides the Department with an Intervention Project for Nurses ("IPN”) evaluation demonstrating the individual’s fitness to resume practicing as a nurse. We note that in hearings involving disputed issues of fact under section 120.57(1), Florida Statutes, the Board cannot deviate from the recommended penalty “without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.” However, section' 120.57(2) pertaining to hearings not involving disputed issues of material fact contains no such provision,, implying that this does not apply to hearings involving no disputed issues of material fact. See § 120.57(2), Fla. Stat.; see also Vicaria v. Dep’t of Health, 715 So.2d 285, 287 (Fla. 3d DCA 1998).


author: PER CURIAM. BERGER, J.,

text:
    STATE of Florida, Appellant, v. James B. BOUGHS, Appellee.
    Case No. 5D15-4000
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 23, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    Curt D. Obront, of Obront Corey, PLLC, Miami, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER and EDWARDS, JJ., concur.

BERGER, J., dissents, with opinion.

BERGER, J.,

dissenting.

I would reverse the trial court’s order granting a new trial based on Boughs’ motion for postconviction relief alleging newly discovered evidence. See Fla. R. Crim. P. 3.850. The purported newly discovered evidence, which consists of a tweet allegedly written by the victim two years after the offense occurred, constitutes inadmissible hearsay not subject to any of the enumerated exceptions. See §§ 90.801-.803, Fla. Stat. (2015). Additionally, even if it were admissible, because the tweet is not a recantation and does not materially alter the child’s testimony, it is not likely to change the outcome of the trial. See Johnston v. State, 27 So.3d 11, 18 (Fla. 2010) (“[T]he newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” (quoting Jones v. State, 709 So.2d 512, 521 (Fla. 1998))). Accordingly, I dissent.

      . The tweet stated, "do this all the time by accident and it’s fucking scary when I can’t move like every horror movie comes to mind.” Attached to the tweet was a post about lucid dreaming.

      . Because the tweet would be an out-of-court statement offered for the truth of the matter asserted, it would qualify as inadmissible hearsay unless it is offered for a non-hearsay purpose or it falls within the purview of an exception to the hearsay rule. See §§ 90.801-.802, Fla. Stat. (2015). Notably, the postcon-viction court’s order does not provide any reasoning to justify how the tweet would be admissible at trial other than a statement that the tweet would be capable of authentication. To this end, Boughs argues that the tweet would be admissible under the state-of-mind exception to the prohibition against hearsay evidence because the tweet shows the child’s state of mind. See § 90.803(3)(a), Fla. Stat, (2015). However, a Twitter post made years after the alleged incident and that does not reference, or in any way relate back to the incident, does not describe the child’s state of mind at the time of the incident. See Suarez v. State, 879 So.2d 1251, 1253 (Fla. 3d DCA 2004) (holding that declarant's comment made prior to the relevant timeframe in which state of mind was at issue was not admissible under the state of mind exception to the hearsay rule).

      . Boughs was convicted of lewd and lascivious molestation and battery for intentionally touching the breasts and leg of his step-granddaughter while the two slept in the same bed. At trial, Boughs denied committing the offense and claimed that the victim, who admitted having nightmares and episodes of sleepwalking, dreamt the incident. In support of his defense, Boughs called Dr. James Allen Chuine, Ph.D., to testify about his research in the area of sleep paralysis, which he described as a phenomenon often accompanied by sensory hallucinations that people perceive as real. Dr. Chuine did not comment on the specific facts of this case or otherwise opine on whether the child victim suffered from sleep paralysis on the night of the incident.


text:
    Jermetras WATSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1914
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 26, 2017
    Robert Wesley, Public Defender, and Jacob Schumer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca J. Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jermetras Watson (Petitioner) petitions this Court for issuance of a writ of habeas corpus, challenging the lower court’s denial of pre-trial bond. Because Petitioner was not given a proper pre-trial detention hearing, we grant the petition and direct the lower court to hold a proper hearing pursuant to Florida Rule of Criminal Procedure 3.132(c).

Petitioner was initially held for four days before being brought before the court for an initial appearance, well beyond the time required under Rule 3.132(a). When the initial appearance was held, the State moved for pretrial detention and the court granted the State’s motion. No further hearing has been held.

Under Rule 3.132, a motion for pre-trial detention may be filed at first appearance. If that motion is facially sufficient, and there is probable cause supporting the charges, the court can detain the defendant until a final hearing on pretrial detention is held. A hearing must be held within 5 days, and the State bears the burden of proving the need for pretrial detention. The State properly concedes that no final hearing was scheduled or held on pretrial detention.

Accordingly, we grant the petition and direct the lower court to hold a proper hearing, as required by Rule 3.132(c). See Smith v. State, 933 So.2d 689 (Fla. 5th DCA 2006).

PETITION GRANTED; CASE REMANDED.

PALMER, BERGER and EISNAUGLE, JJ„ concur.


text:
    Gabriel LOWMAN, Petitioner, v. RACETRAC PETROLEUM, INC. d/b/a Racetrac and Broadspire, Respondents.
    CASE NO. 1D17-1385
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017

      Cory J. Pollack of Cory Jonathan Pollack, P.A., Fort Myers, for Petitioner.
    Kevin R. Clarke of Law Office of Kevin R. Clarke, Jupiter, for Respondents Race-trac Petroleum, Inc., d/b/a Racetrac and Broadspire; and Stephanie R. Hayes, of Office of the Judges of Compensation Claims, Tallahassee, for Respondent Jack A. Weiss.
   PER CURIAM.

Petitioner, the injured worker in this workers’ compensation case, challenges the denial of his motion to disqualify the Judge of Compensation Claims (JCC) and seeks a writ of prohibition directing the JCC to disqualify himself. Because we find that the JCC erred in denying the motion to disqualify, we grant the petition.

In his motion and accompanying affidavit to disqualify the JCC, Petitioner asserts that he believes the JCC “is prejudiced against [his] attorney” and that, “as a result of this prejudice,” he fears the JCC will be prejudiced against him and that he “will not receive a fair trial/Final Hearing.” Petitioner bases this belief on the JCC’s denial of a motion to continue filed by Petitioner’s attorney in another workers’ compensation case where the JCC found that the representations made by Petitioner’s attorney in that motion to continue were not credible. Notably, in the other workers’ compensation case, ' the JCC granted a motion to disqualify that was filed at the same time as the motion here and that alleged the same factual basis for disqualification. In the instant case, however, the JCC denied the motion to disqualify as “legally insufficient.” '

The Rules of Procedure for Workers’ Compensation Adjudications provide that “[a]ny motion- for disqualification of a judge shall be made and determined pursuant to [Florida Rules Judicial Administration] 2.330.” Fla. Admin. Code R. 60Q-6.126(1). Under rule 2.330(d), grounds supporting a motion to disqualify a judge include “that the party fears that he or she will not receive a fair trial- or hearing because of specifically described prejudice or bias of the judge.” In addition, rule 2.330(f) states that the judge against whom the motion to -disqualify is directed-must “determine only the legal sufficiency of the motion and shall not pass on the truth of the facts .alleged.” In determining whether a motion to disqualify is legally sufficient, the appellate court reviews the motion’s allegations under a de novo standard. See R.M.C. v. D.C., 77 So.3d 234 (Fla. 1st DCA 2012); Sume v. State, 773 So.2d 600 (Fla. 1st DCA 2000).

In the order denying Petitioner’s motion, the JCC cited case law holding that a lawyer’s request for general disqualification will not be granted. See Ginsberg v. Holt, 86 So.2d 650, 651 (Fla. 1956) (rejecting appellant/attorney’s request for what was, “in effect ... an injunction forever to restrain the appellee from entertaining any case in which the appellant may appear”); Cascone v. Foster, 774 So.2d 773 (Fla. 1st DCA 2000) (denying writ of prohibition to petitioner/attorney who challenged judge’s decision to vacate standing recusal order, because general disqualification, in accordance with Ginsberg, will not be granted, but-also noting party retained the right to move for disqualification in specific proceeding). Nevertheless, as Petitioner correctly points out, his attorney did not make a request for general disqualification; instead, Petitioner made a request for the JCC’s disqualification from this specific case. Thus, the JCC did not give a valid reason here for finding the motion to be legally insufficient.

Under the applicable standard, a motion to disqualify based on prejudice or bias is legally sufficient if “the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); see also MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). Here, Petitioner alleges that the JCC is prejudiced against his attorney because he previously stated that his attorney was not credible— that is not worthy of belief. As noted, Petitioner’s factual allegations must be taken as true. Under Florida law, a judge’s statement that he feels a party has lied is generally considered an indication of bias against the party. See, e.g., DeMetro v. Barad, 576 So.2d 1353, 1354 (Fla. 3d DCA 1991) (citing Brown v. St. George Island, Ltd., 561 So.2d 253, 257 (Fla. 1990)). In Brown, the Florida Supreme Court expressly agreed with the analysis by the Third District Court of Appeal which included reliance on Deauville Realty Co. v. Tobin, 120 So.2d 198 (Fla. 3d DCA 1960), cert. denied, 127 So.2d 678 (Fla. 1961) (holding that statement by judge that party has lied generally indicates bias). Notably, in reaching the holding in Tobin, the district court there commented that:

[T]he formation of a prejudice during and as a result of a party’s testimony in a trial need not affect the case in which it was arrived at in that manner, although it may operate to disqualify that judge from hearing any later or second trial of that case if one is had, or from participating in any subsequent trial in which that party is involved.

Id. at 202 (emphasis added). The JCC’s statement here was effectively directed at Petitioner’s attorney, not the party/Petitioner. But, as an indication of a bias which may create a party’s fear of not receiving an impartial hearing, there is no appreciable difference. We find, therefore, that the facts alleged here are legally sufficient to support Petitioner’s motion to disqualify.

Accordingly, we GRANT the Petition for Writ of Prohibition, QUASH the order denying the motion to disqualify, and direct the Deputy Chief Judge of Compensation Claims to reassign the case.

ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.


text:
    Catherine D. DAVID, Appellant, v. Michael S. DAVID, Sr., Appellee.
    CASE NO. 1D16-1578
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017

      An appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
    Charles E. Willmott of Charles E. Will-mott, P.A., Jacksonville; Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Former Wife, raises six points on appeal challenging several aspects of the Final Judgment of Dissolution of Marriage. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

We affirm Point TV without further comment. Regarding Point V, we conclude that the trial court’s decision not to award Former Wife the marital home as lump sum alimony was not an abuse of discretion, and affirm. As to Point VI, we affirm the trial court’s decision to deny Former Wife’s request for Former Husband to reimburse her in the amount of $6800 for the attorney’s fees she had already paid her first attorney. See Cullen v. Cullen, 884 So.2d 304, 306 (Fla. 2d DCA 2004) (“The purpose of an attorney’s fee award under section 61.16, Florida Statutes ... is to ensure that both parties will have a similar ability to obtain competent legal representation.”); Giovanelli v. Giovanelli, 654 So.2d 154, 155 (Fla. 4th DCA 1995) (“The principle [sic] criterion for an award of attorney’s fees in a marital case is the relative financial resources of the parties. ... Moreover, it has been pronounced that the award of attorney’s fees is proper to avoid an inequitable diminution of the fiscal sums granted ... in those proceedings.”) (citation omitted).

Points I, II, and III, however, raise issues directed to the insufficiency of the trial court’s findings with regard to Former Wife’s request for permanent alimony (Points I and II), and the trial court’s imputation of income to Former Wife (Point III). The parties’ marriage was presumptively a long-term marriage as contemplated in section 61.08(4), Florida Statutes (2013). In denying Former Wife permanent alimony, the trial court failed to make any of the factual determinations required by section 61.08(2)(a)-(j), Florida Statutes. The trial court’s failure to set forth the requisite factual findings to justify its decision not to award Former Wife permanent alimony contravened the clear mandate of section 61.08(2), and inhibits any meaningful review of the alimony-issue. See Abbott v. Abbott, 187 So.3d 326, 327-28 (Fla. 1st DCA 2016); Winder v. Winder, 152 So.3d 836, 840-41 (Fla. 1st DCA 2014); Broemer v. Broemer, 109 So.3d 284, 289 (Fla. 1st DCA 2013); Sellers v. Sellers, 68 So.3d 348, 350-51 (Fla. 1st DCA 2011). As a result, the permanent alimony judgment must be reversed. Similarly, the trial court’s imputation of income to Former Wife suffers from an equal lack of the requisite “ ‘particularized findings’ to support its decision, McDuffie v. McDuffie, 155 So.3d 1234, 1236 (Fla. 1st DCA 2015) (quoting Rabbath v. Farid, 4 So.3d 778, 782 (Fla. 1st DCA 2009)); see also Schlagel v. Schlagel, 973 So.2d 672, 675 (Fla. 2d DCA 2008). Although in some instances we may affirm without the inclusion of specific findings, see McDuffie, 155 So.3d at 1236, we cannot do so on ‘this record. Therefore, the imputation of income determination as to Point III must be reversed. On remand, the trial court should undertake an appropriate analysis of Former Wife’s actual prospects for employment and her income earning potential. In doing so, the court may take additional evidence. Id. at 1237.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

OSTERHAUS, JAY, and WINSOR, JJ„ CONCUR.


text:
    BAYCARE HOME CARE MEDICAL SUPPLY and Commercial Risk Management, Appellants, v. Anibal SANTIAGO, Appellee.
    CASE NO. 1D16-845
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017

      Warren K. Sponsler and Janelle G. Ko-ren of Sponsler, Bishop, Koren & Hammer, PA, Tampa, for Appellants.
    Craig 0. Stewart of Morgan & Morgan, PA, Tampa, and Wendy S. Loquasto of Fox & Loquasto, PA, Tallahassee, for Ap-pellee.
   PER CURIAM.

Anibal Santiago claimed he injured his neck while unloading a hospital bed for delivery. Multiple doctors examined Santiago, and several came to the conclusion that the neck injury resulted from a preexisting degenerative condition. Others, however, determined the accident caused the injury. After Santiago filed a petition seeking temporary partial disability benefits, the judge of compensation claims appointed an expert medical advisor to examine Santiago and resolve the conflict. See § 440.13(9)(e), Fla. Stat. (2013) (authorizing the JCC to appoint an EMA when there is a disagreement in the opinions of the health care providers).

In his report, the EMA concluded that Santiago had both a degenerative condition to his cervical spine as well as a cervical strain. The EMA opined that the accident caused the latter injury but that Santiago had fully recuperated from it. The EMA placed Santiago at maximum medical improvement with zero impairment. At his subsequent deposition, however, the EMA’s conclusions were less clear. While he did testify that Santiago had a preexisting degenerative disk condition and also probably suffered from a cervical strain, he offered contradictory statements on whether the accident was the major contributing cause of the injury and whether Santiago was at MMI.

The JCC subsequently entered a final order awarding Santiago TPD benefits. In the order, the JCC acknowledged that the EMA’s report agreed with the findings of the previous doctors that Santiago suffered from a preexisting condition unrelated to the accident and was at MMI. While noting that the EMA’s deposition testimony was “not a model of clarity,” the JCC also cited the portion of the testimony in which the EMA noted the accident was not the MCC of Santiago’s condition. The JCC concluded that while Santiago had a preexisting degenerative disc disease, it was not “legally a pre-existing condition” because Santiago was asymptomatic and without treatment or disability before the accident. Therefore, the JCC concluded, “the issue of major contributing cause should not be considered.” Ultimately, the JCC found Santiago was not at MMI and authorized TPD benefits. The employer/carrier appeal.

The same statute that authorizes a JCC to appoint an EMA also imposes a presumption of correctness on the EMA’s subsequent opinion. See § 440.13(9)(c) (“The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.”). In fact, we have gone so far as to note that an EMA’s opinion has a “nearly conclusive effect.” Mobile Med. Indus. v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008) (quoting Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998)). A JCC must find and articulate its reasons to reject an EMA’s opinion. See Certistaff, Inc. v. Owen, 181 So.3d 1218, 1221 (Fla. 1st DCA 2015) (citing Mobile, 985 So.2d at 36).

While the EMA’s deposition testimony was not always clear and consistent, his report clearly indicated his opinion that Santiago is at MMI and that the accident was not the MCC of his neck condition. The JCC failed to articulate any findings of clear and convincing evidence to reject that opinion. Accordingly, we reverse and remand to allow the JCC to accept the EMA’s conclusion or make the necessary findings to reject it. See Arnau v. Winn-Dixie Stores, Inc., 76 So.3d 1117, 1118 (Fla. 1st DCA 2011).

REVERSED and REMANDED.

ROBERTS, C.J., and JAY and WINSOR, JJ., CONCUR.

      . The contradictions were to such an extent that Santiago filed a motion to appoint an alternate EMA. The JCC denied the motion and noted the EMA's testimony was “competent” and "responsive to questioning,”

      . We have considered and rejected the employer’s separate argument that Santiago was medically noncompliant.


author: PER CURIUM.

text:
    Joshua DUKES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4032
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017.
    Andy Thomas, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING AND WRITTEN OPINION

PER CURIUM.

On consideration of the motion for rehearing and written opinion, this Court grants, in part, the motion. We grant the motion solely with respect to Appellant’s request for remand regarding resentenc-ing. The record indicates the trial court may have felt constrained to impose the mandatory minimum sentences consecutively. Pursuant to Williams v. State, 186 So.3d 989, 993 (Fla. 2016), where “multiple firearm offenses are committed contemporaneously, during which multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” (Emphasis added.) Accordingly, on remand the trial court is permitted to impose the same sentence but is not required to do so.

AFFIRMED in part, REVERSED in part, and REMANDED.

B.L. THOMAS, C.J., WETHERELL, and M.K. THOMAS, JJ., CONCUR.


text:
    Ricky T. OLIVER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-4091
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017.
    Andy Thomas, Public Defender and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed Appellant’s sentence based on our en banc decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) (Walton I), which held that mandatory mínimums under section 775.087, Florida Statutes, the 10-20-Life statute, must be imposed consecutively regardless of whether the defendant possessed or discharged a firearm. However, the Florida Supreme Court’s order, entered in Oliver v. State, SC15-1216, 2017 WL 2303265 (Fla. May 26, 2017), quashed this court’s decision in Oliver v. State, 165 So.3d 865 (Fla. 1st DCA 2015), and remanded for reconsideration in light of Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016).

At trial, the jury returned a verdict finding Appellant guilty of two counts of attempted first degree murder involving two different victims. For both counts the jury specifically found that Appellant discharged a firearm causing great bodily harm. On August 8, 2013, Appellant was sentenced to consecutive terms of life imprisonment with a 25-year mandatory minimum on each count. At the time of sentencing, Walton I was binding on the trial court.

The Florida Supreme Court has now held that consecutive sentences under the 10-20-Life statute are not mandatoiy but are permissible where the firearm is discharged at multiple victims. “If, however, multiple firearm offenses are committed contemporaneously, during which multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Williams, 186 So.3d at 993. See also Walton II, 208 So.3d at 64; § 775.087(2)(d), Fla. Stat. Accordingly, the trial court’s directive that the sentence imposed for count 2 shall run consecutively with the sentence for count 1, both counts imposing mandatory minimum sentences pursuant to section 775.087(2)(a), Florida Statutes, is reversed and this case remanded for re-sentencing only on the issue of consecutive or concurrent service of the sentences on the attempted first degree murder counts.

REVERSED and REMANDED with directions.

WOLF, WETHERELL, and BILBREY, JJ., CONCUR.


text:
    S.C.P., the Mother, Petitioner, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Respondents.
    No. 3D17-979
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
    Karla Perkins, for respondent Department of Children and Families; Laura J. Lee (Sanford), for respondent Guardian ad Litem Program.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

S.C.P., the Mother, petitions this Court for a writ of certiorari quashing the trial court’s March 30, 2017 order that changed the goal of her case plan from reunification to permanent guardianship. We grant the petition and quash the order.

The Mother’s children were adjudicated dependent on February 10, 2016. On January 4, 2017, the trial court accepted a case plan which set forth the primary goal of reunification. On March 30, 2017, however, the trial court entered the order under review. The order found that the Mother was in compliance with her case plan but nevertheless, it changed the goal from reunification to permanent guardianship. This change could prevent the. Mother from eventually reuniting with her children.

The governing rules and statutes contemplate an evidentiary basis to support a case plan amendment. See § 39.621, Fla. Stat. (2016); R.N. v. Dep’t of Children & Families, 25 So.3d 697, 700 (Fla. 5th DCA 2010) (“Rule 8.420 contemplates an eviden-tiary basis to support a case plan amendment”). The Department properly and commendably concedes that the trial court order lacks an adequate evidentiary basis to support the case plan amendment, and the guardian ad litem also indicated that it has no argument against-granting the petition. Based upon our independent review of the record and the Department’s confession of error, we grant the petition and quash the order.

Petition granted.


author: PER CURIAM:

text:
    STATE EX REL. Sharon LACOMBE v. STATE of Louisiana
    No. 2016-KH-0429
    Supreme Court of Louisiana.
    06/05/2017
   PER CURIAM:

11 Denied. Relator fails to satisfy her post-conviction burden of proof on her claim challenging her guilty plea. La. C.Cr.P. art. 930.2. Her remaining claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466.

Relator has now fully litigated an application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Jeffery DAVIS v. STATE of Louisiana
    No. 2016-KH-0271
    Supreme Court of Louisiana.
    06/05/2017
   PER CURIAM:

|! Denied. The application is repetitive. La.C.Cr.P. art. 930.4. Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Davis v. State, 16-0227 (La. 6/2/17), 221 So.3d 59, 2017 WL 2436862.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-1152
    NO. 2017-BA-0706
    Supreme Court of Louisiana.
    06/05/2017
   PER CURIAM

|! After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of one year. Should petitioner commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

CLARK, J., additionally concurs and would admit without conditions.

CRICHTON, J., would admit without conditions.

GENOVESE, J., would admit without conditions.