text:
    Diane PETERSON, Appellant, v. Abdallahi B. LOULAF, Appellee.
    Case No. 5D17-883
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Non-Final Appeal from the Circuit Court for Brevard County, Charles G. Crawford, Judge.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Jahlique Debanairr LAWSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4437
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Marion County, Jonathan D. Ohlman, Judge.

AFFIRMED.


text:
    James RYAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4003
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Seminole County, Marlene M. Ava, Judge.

AFFIRMED.


text:
    Russell Wade CADE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3962
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Fla-gler County, J. David Walsh, Judge.

AFFIRMED.


text:
    Michael GUALTIERI, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION and Jo A. Gualtieri, Appellees.
    Case No. 5D16-3779
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Volu-sia County, Randell H. Rowe, III, Judge.

AFFIRMED.


text:
    Marshall S. VAUGHAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2529
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.860 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

AFFIRMED.


text:
    Charles A. PRESUTTI, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2485
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.800 Appeal from the Circuit Court for Marion County, Jonathan D. Ohlman,' Judge.

AFFIRMED.


text:
    Johnny VILLAFANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2393
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.800 Appeal from the Circuit Court for Orange County, Robert J. Egan, Judge.

AFFIRMED.


text:
    Maurice HOLLAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2235
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.850Appeal from the Circuit Court for Hernando County, Daniel B. Merritt, Jr., Judge.

AFFIRMED.


text:
    Steve G. HUFF, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2120
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.800 Appeal from the Circuit Court for Marion’County, Anthony M. Tatti, Judge.

AFFIRMED.


text:
    Arizona WILLIS, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2021
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.850Appeal from the Circuit Court for Orange County, Alan S. Apte, Judge.

AFFIRMED.


text:
    Chad David CORDREY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1719
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   3.850Appeal from the Circuit Court for Marion County, Jonathan D. Ohlman, Judge.

AFFIRMED.


text:
    RILEY DEFENSE, INC. and Ramzi Kheireddine, Appellants, v. I.O., INC., Appellee.
    Case No. 5D17-1174
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Non-Final Appeal from the Circuit Court for Brevard County, Charles J. Roberts, Judge.

AFFIRMED.


text:
    Barry L. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2455
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Putnam County, Scott C. Dupont, Judge.

AFFIRMED.


text:
    Thomas Anthony PRINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2150
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Volu-sia County, James R. Clayton, Judge.

AFFIRMED.


text:
    HOMES BY DELTONA, INC., Appellant/Cross-Appellee, v. HICKS TRUCKING AND FILLS, LLC, Appellee/Cross-Appellant.
    Case No. 5D16-2026
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

AFFIRMED.


text:
    Valencia Danielle LARUE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1982
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge.

AFFIRMED.


text:
    Donald W. NEEDHAM and Blair Bergstrom, Appellants, v. BAYVIEW LOAN SERVICING, LLC and Coronado Towers Management, Inc., Appellees.
    Case No. 5D16-1687
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Volu-sia County, Sandra C. Upchurch, Judge.

AFFIRMED. '


text:
    Cashawn D. MOBLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1674
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Volu-sia County, Robert Rouse, Judge.

AFFIRMED.


text:
    Darryl Wayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1628
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Orange County, Mark S. Blechman, Judge.

AFFIRMED.


text:
    Michael Shawn MEYERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-940
    District Court of Appeal of Florida, Fifth District.
    September 26, 2017
   Appeal from the Circuit. Court for Marion County, Anthony M. Tatti, Judge.

AFFIRMED.


text:
    Michael A. HODGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1434
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 26, 2017
   Appeal from the Circuit Court for Lake County, William G. Law, Jr, Judge.

AFFIRMED.


text:
    Julio VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2780
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

AFFIRMED.


text:
    Kim Lambert FRAZIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2570
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.800 Appeal from the Circuit Court for Orange County, Dan Traver, Judge.

AFFIRMED.


text:
    Joseph Jerome SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2043
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Orange County, Robert W. Hodges, Judge.

AFFIRMED.


text:
    Travis I. CURRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1705
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.800 Appeal from the Circuit Court for Orange County, Keith A. Carsten, Judge.

AFFIRMED.


text:
    Quinton J. BOYD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1649
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

AFFIRMED.


text:
    Edwin R. MANN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1544
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.800 Appeal from the Circuit Court for Orange County, Leticia J. Marques, Judge.

AFFIRMED.


text:
    Kevin Lavern LEVI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1375
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Orange County, Keith A. Carsten, Judge.

AFFIRMED.


text:
    Salvador Diaz DIAZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1011
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Orange County, A. James Craner, Judge.

AFFIRMED.


text:
    Thor Harold BAHRMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-963
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

AFFIRMED.


text:
    James Lee AMISON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-784
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

AFFIRMED.


text:
    Melissa PARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-634
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

AFFIRMED.


text:
    William Houston KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-544
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Marion County, Robert W. Hodges, Judge.

AFFIRMED.


text:
    Ronald GABRIEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4397
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge.

AFFIRMED.


text:
    Domingo GARCIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4272
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Volu-sia County, James R. Clayton, Judge.

AFFIRMED.


text:
    George TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4051
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   3.850 Appeal from the Circuit Court for Volusia County, Terence R, Perkins, Judge.

AFFIRMED.


text:
    Toris OLIVER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3830
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Orange County, Mark S. Blechman, Judge.

AFFIRMED.


text:
    Kowon WADE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3554
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Bre-vard County, Charles G. Crawford, Judge.

AFFIRMED.


text:
    Luis F. GOMEZ, III, Appellant, v. Courtney GOMEZ, Appellee.
    Case No. 5D16-3288
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Orange County, Patricia A. Doherty, Judge.

AFFIRMED.


text:
    Brixten DYER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3119
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Orange County, Keith A. Carsten, Judge.

AFFIRMED.


text:
    Anna Marie PEHOTA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2886
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Fla-gler County, Matthew M. Foxman, Judge.

AFFIRMED.


text:
    Keyshawn Jamal D’Andre WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2762
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Lake County, Lawrence J. Sementó, Judge.

AFFIRMED.


text:
    Gloria DILLARD, Appellant, v. CITY OF OCALA, Appellee.
    Case No. 5D16-2602
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.

AFFIRMED.


text:
    Philbert Michael PAYNE, Appellant, v. Gloria PAYNE, Appellee.
    Case No. 5D16-2406
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for Seminole County, Melanie Chase, Judge.

AFFIRMED.


text:
    Micheline BOUTIN, Appellant, v. SAINT AUGUSTINE REGIONAL VETERINARY EMERGENCY CENTER, P.A. and Janice Goode, D.V.M., Appellees.
    Case No. 5D16-1421
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for St. Johns County, Arthur W. Nichols, III, Senior Judge.

AFFIRMED.


text:
    Michael SHUGART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1311
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2017
   Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

AFFIRMED.


text:
    Steve H. MAZAK, Appellant, v. Lisa M. HOOVER, Appellee.
    Case No. 5D16-2626
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 10, 2017
   Appeal from the Circuit Court for Sumter County, Michelle T. Morley, Judge.

AFFIRMED.


author: Damoorgian, J.

text:
    Sherry CLEMENS, as Personal Representative of the Estate of John Clemens, deceased, Appellant, v. Peter NAMNUM, M.D., individually, Peter Namnum M.D., P.A., a. Florida Professional Association, Florida Hospital Medicine Services, Inc., a Florida Corporation, and North Broward Hospital District d/b/a Broward General Medical Center, a Florida Corporation, Appellees.
    No. 4D16-3558
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      Mario R. Giommoni and Kimberly L. Boldt of Boldt Law Firm, P.A., Boca Ra-ton, and Robert Brown of Pennekamp Law, PA, Miami, for appellant.
    Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Rolando A. Diaz of The Diaz Law Group, Coral Gables, for Florida Hospital Medicine Services, Inc.
   Damoorgian, J.

Sherry Clemens, as Personal Representative of the Estate of John Clemens, appeals an order entering final summary judgment in favor of Florida Hospital Medicine Services, Inc. (“FHMS”). We reverse because the trial court erred in denying Appellant leave to amend her responses to FHMS’ requests for admissions and in entering summary judgment in FHMS’ favor based on the admissions Appellant sought to amend.

By way of background, Appellant sued FHMS and one of its independently contracted physicians, Dr. Peter Namnum, for medical malpractice, alleging that her husband died as the . result of negligent care administered by Dr. Namnum. With respect to her negligence count against FHMS, Appellant alleged that Dr. Nam-num “worked under the scope of agency of’ FHMS, that FHMS owed a duty to Appellant’s husband to ensure that he “received the treatment required under the prevailing standard' of care from” Dr. Namnum, that FHMS breached that duty, and that Appellant’s husband died as a result of FHMS’ negligence. Almost two years after initially filing her suit, Appellant moved to amend her complaint to further allege that FHMS owed her husband a duty “to exercise due care in the selection and retention of an independent contractor physician.”

After the court allowed the amendment, FHMS filed a motion to dismiss wherein it argued that with the addition of the afore-quoted paragraph, Appellant was now asserting a “totally new cause of action against” FHMS for negligent credentialing. FHMS maintained that this “newly pled” claim did not.relate back to Appellant’s previously pled agency, claim and was, therefore, time barred. In reply, Appellant-represented that her “initial claim against FHMS was not steeped in agency.” •She further represented that “a precise reading of the entirety of the allegations [in her complaint] indicates that Plaintiff has -alleged direct negligence against FHMS .... There simply is no basis for FHMS to assert that the claim ever was for respondeat superior.” Appellant’s counsel made similar representations at the hearing on FHMS’ motion to dismiss. Ultimately, the court denied FHMS’ motion.

Thereafter, the parties engaged in further discovery. As part of this process, FHMS served requests for admissions on Appellant. The requests were designed to pin down Appellant’s theory of negligence against FHMS, and in that respect, asked Appellant to admit that “you are not pursuing an agency claim against FHMS based on vicarious liability for the actions of’ Dr. Namnum. In response, Appellant admitted that she was not pursuing an agency claim against FHMS.

Shortly after submitting her admissions, Appellant obtained new counsel -who almost immediately realized that the admission concerning Appellant’s lack of agency claim against FHMS was incorrect. Appellant’s new counsel then moved for leave to amend her admissions “to properly reflect the true nature of the agency claim being brought against” FHMS. FHMS opposed this motion, arguing that FHMS relied on Appellant’s original responses in preparing and litigating this case. Therefore, it argued that Appellant should be estopped from changing, her position mid-litigation. For the same reasons, FHMS also moved the court for an order striking the agency allegation contained in Appellant’s complaint.

At the hearing on Appellant’s motion, Appellant pointed out that requests to amend admissions should be liberally granted absent prejudice to the opposing party. With respect to FHMS’ prejudice argument, Appellant countered that the case was not yet set for trial and discovery was ongoing. Appellant also advised the court that she would not oppose allowing her witnesses to be re-deposed nor would she object to any additional discovery requests relevant to the agency claim. In short, Appellant argued that FHMS would suffer no prejudice were the court to grant the motion to amend.

The court denied Appellant’s motion to amend her admissions and granted FHMS’ motion to strike the agency paragraph contained in Appellant’s negligence count against FHMS. More than three years later, FHMS moved for summary judgment on Appellant’s negligence count, arguing that there was no record evidence supporting Appellant’s contention that FHMS was directly negligent. Appellant conceded to the summary judgment on direct liability, but in doing so, argued that FHMS was nonetheless vicariously liable and that the court erroneously struck her agency allegation against FHMS. Based on Appellant’s concession, the court entered final summary judgment in favor of FHMS. This appeal follows.

Florida Rule of Civil Procedure 1.370 governs requests for admissions and provides, in part, that “[a] party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact ....” Fla. R. Civ. P. 1.370(a). Any matter admitted under the Rule is “conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fla. R. Civ. P. 1.370(b). The court may allow “withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.” Id. A trial court’s ruling regarding a request to amend or withdraw admissions under Rule 1.370 is reviewed for an abuse of discretion. See Chelminsky v. Branch Banking & Tr. Co., 184 So.3d 1245, 1246 (Fla. 4th DCA 2016).

“This court has recognized that [Rule 1.370(b) ] favors amendments to responses to ensure that a cause is decided on its merits.” Istache v. Pierre, 876 So.2d 1217, 1219 (Fla. 4th DCA 2004). In that vein, when an admission affecting the outcome of the case is wrongfully made as the result of a clerical error, case law makes it clear that the court should allow amendment. Id. at 1218-20; see also Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004). However, when the so-called error was the result of an intentional misstep, as in the instant case, the case law is less than scant. In different procedural contexts, however, courts usually allow an attorney to correct a legal error made by its client’s prior attorney if such a correction would facilitate resolution of the matter on its merits. See Olesh v. Greenberg, 978 So.2d 238, 243 (Fla. 5th DCA 2008). In the instant case, it is beyond dispute that if held to her admissions, Appellant had no cause of action against FHMS. Thus, the question for our consideration is whether the risk of prejudice to FHMS outweighed resolution of the case on its merits.

From the inception of the lawsuit, Appellant pled that Dr. Namnum “worked under the scope of agency of’ FHMS. During the first two years of the litigation, FHMS understood this to mean that Appellant was alleging an agency based cause of action against FHMS. Although FHMS was later led to believe by Appellant’s former counsel that Appellant was not pursuing an agency based claim, Appellant’s new counsel moved to correct this misstep via amendment of her admissions in a timely fashion. Further, at the time Appellant’s counsel moved for amendment, the pleadings were not closed, discovery was ongoing, and the matter was not yet set for trial. Indeed, the matter was not noticed for trial until several years later. Finally, the record establishes that at the time Appellant moved for amendment, her counsel stipulated that Appellant would respond to any additional agency discovery and would allow FHMS to re-depose any witness it wished. Under these circumstances, we hold that FHMS did not and could not establish that amendment would have resulted in undue prejudice to FHMS. See Melody Tours, Inc. v. Granville Mkt. Letter, Inc., 413 So.2d 450, 451 (Fla. 5th DCA 1982) (holding that appellee did not establish that it would have been prejudiced by appellant’s amendment of admissions when the motion to amend “was made before the pleadings were closed, before the entry of a pre-trial order and before any trial date had been set”).

We next address whether Appellant is estopped from asserting contrary positions during her litigation against FHMS. A key to the doctrine of estoppel is that the party being estopped from taking a contrary position actually succeeded in its former position. McPhee v. State, 254 So.2d 406, 409-10 (Fla. 1st DCA 1971) (noting that “where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position” (quoting Fla. Jur. Estoppel & Waiver § 51)). Here, Appellant did not succeed or gain anything by her former counsel’s representation that FHMS was directly, not vicariously, liable. Indeed, Appellant ultimately conceded on summary judgment that FHMS was not directly liable. Accordingly, Appellant is not estopped from seeking to amend her answers to FHMS’ requests for admission.

Based on the foregoing, we reverse and remand with' instructions to vacate the summary judgment, the order denying Appellant’s motion to amend responses to FHMS’ requests for admissions, and the order striking Appellant’s agency paragraph, and to grant Appellant’s motion for leave to amend her admissions.

Reversed and remanded with instructions.

Warner and Taylor, JJ., concur.


author: Conner, J.

text:
    Ricarlo A. BETTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1864
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017].

      Ricarlo A. Betty, Arcadia, pro se.
    Pamela Jo B ondi,. Attorney General, Tallahassee, ’ and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Ricardo A. Betty (“Appellant”) appeals the order denying his motion to set a hearing date for the rife novo sentencing hearing granted as post-conviction relief. Because the original sentencing judge summarily and improperly found a de novo sentencing hearing “unnecessary’-’ after a different trial court judge ruled such relief was warranted, we reverse and remand-for a new sentencing hearing before a different judge.

Background

In 2008, Appellant was convicted after trial of two counts of robbery with a deadly weapon while masked and was sentenced to life in prison on each count. Appellant’s judgment and sentence were affirmed on direct appeal. Betty v. State, 22 So.3d 558 (Fla. 4th DCA 2009).

In 2011, Appellant moved for post-conviction relief raising several -grounds.- The motion was heard by a judge who did not preside over the trial and sentencing. The trial court denied post-conviction relief except for one ground, in which Appellant asserted ineffective assistance of counsel for failure to advise Appellant of his youthful offender eligibility. and argue for a youthful offender sentence. The trial court found sufficient prejudice on that ground to grant Appellant a rife novo sentencing hearing in front of the original sentencing judge to enable that judge to consider whether Appellant should be classified and sentenced as a youthful offender. The. written order granting relief stated:

The parties may contact the sentencing judge for hearing time at a mutually convenient time and/or file an appeal within thirty days.

(emphasis added).

Appellant appealed-the denial of post-conviction relief on the same grounds for which relief was not granted, before seeking a new sentencing hearing. This Court per curiam affirmed the denial as to those grounds. Betty v. State, 138 So.3d 1037 (Fla. 4th DCA 2014).

After his post-conviction relief appeal was resolved, Appellant filed a pro se motion to set a hearing date for the de novo sentencing hearing granted in the' trial court’s 2011 order. Appellant’s motion for a de novo sentencing was denied' without a hearing by the original sentencing court. The order denying the motion stated, without any citation to authority, that the original sentencing court “d[id] not believe” it had jurisdiction to hold a sentencing hearing after Appellant filed the appeal of the post-conviction order. Alternatively, the original sentencing court found that even if it did have jurisdiction, a de novo hearing was “unnecessary,” reasoning that the original sentencing court had presided over Appellant’s trial, and sentencing and had reviewed the transcripts of both proceedings, and that regardless of any possible youthful offender argument trial counsel could make, the original sentencing court would not have sentenced Appellant as a youthful offender. The original sentencing court noted that Appellant scored 13.9 years in prison with a minimum mandatory of ten years, but that it had imposed two life sentences on Appellant, attaching portions of the sentencing transcript reflecting the sentence. Therefore, the original sentencing court denied Appellant’s motion for a de novo resentencing hearing.

Appellant gave notice of appeal of the . order denying a de novo sentencing.

Appellate Analysis

As our supreme court has explained:

“[0]ne of & criminal defendant’s most basic constitutional rights is tHe right to be present in the courtroom at every critical stage in the proceedings.” Jackson v. State, 767 So.2d 1156, 1159 (Fla. 2000).... We have extended this right to resentencing hearings as well. See Jackson, 767 So.2d at 1160 (finding that defendant’s presence would contribute to the fairness of the procedure and thus extending the right to be present to the hearing where the sentence will be reconsidered); Griffin v. State, 517 So.2d 669, 670 (Fla. 1987) (finding presence of defendant necessary at resentencing so that defendant has the opportunity to submit evidence relevant to the sentence, if warranted); State v. Scott, 439 So.2d 219, 221 (Fla. (1983) (finding defendant entitled to be present at a sentencing correction in the same manner and to the same degree -as when the defendant was originally sentenced).

Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) (first alteration in original).

“A violation of the right to be present is subject to a harmless error analysis.” Id. at 338-39 .(citing Smithers v. State, 826 So.2d 916, 927 (Fla. 2002)). “In other words, when the defendant is involuntarily absent during a crucial stage of adversary proceedings contrary to rule 3.180(a), the burden is on the state to show beyond a reasonable doubt that the error (absence) was not prejudicial.” Id. at 339 (quoting Garcia v. State, 492 So.2d 360, 364 (Fla. 1986)).

Appellant argues on appeal that the sentencing judge erred in denying his motion for de novo sentencing hearing after post-conviction relief was granted based on ineffective assistance of counsel at sentencing. Appellant contends a de novo sentencing hearing was required for consideration of sentencing him as a youthful offender, with Appellant and his counsel present to offer evidence and argument on the issue. Appellant further argues that resentencing in the procedural context of tips case would not constitute a ministerial act, because resentencing would require an exercise of the trial court’s discretion.

We agree with Appellant that, once the trial court determines that de novo resentencing is appropriate, the defendant is “entitled to a de novo sentencing hearing with the full array of due process rights.” Webb v. State, 805 So.2d 856, 857 (Fla. 2d DCA 2001) (quoting St. Lawrence v. State, 785 So.2d 728, 729-30 (Fla. 5th DCA 2001)). It is further well established that “a defendant is entitled to be present and represented by counsel at [a] resentencing proceeding ... unless re-sentencing involves only a ministerial act.” Burgess v. State, 182 So.3d 841, 842 (Fla. 4th DCA 2016) (citing Jordan, 143 So.3d at 338). Furthermore, “[a] resentencing at which the trial judge has judicial discretion is not a ministerial act.” Id. (citing Jordan, 143 So.3d at 339-40).

In this case, it was undisputed that Appellant was eligible to be classified and sentenced- as a youthful offender, and the trial court granting post-conviction relief determined that he was entitled to a de novo sentencing hearing. We agree with Appellant that resentencing would not be a ministerial act. Our supreme court has held that although an original sentepce of life imprisonment may appear to demonstrate a trial judge’s intent to sentence a defendant to the maximum allowable punishment, the judge is “not obligated to maintain that same intent at resentenc-ing.” Jordan, 143 So.3d at 340 (citing Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006) (“Although the trial court originally pronounced its intention to sentence the defendant to ‘the bottom of the guidelines,’ it was not obligated to do so.”)); Phillips v. State, 705 So.2d 1320, 1322 (Fla. 1997) (quoting King v. Dugger, 555 So.2d 355, 358-59 (Fla. 1990) (“Phillips’ resentencing proceeding was a ‘completely new proceeding,’ and the trial court was therefore under no obligation to make the same findings as those made in Phillips’ prior sentencing proceeding.”)). “Thus, the judicial discretion present in this case eliminates the ministerial nature of the resen-tencing.” Jordan, 143 So.3d at 340 (citing Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008)).

The State’s argument that Appellant waived the de novo sentencing hearing by choosing to appeal the denial of post-conviction relief on other grounds lacks merit. The State supports this proposition by referring to the trial court’s language in the order that: “The parties may contact the sentencing judge for hearing time at a mutually convenient time and/or file an appeal within thirty days.” (emphasis added). However, the State ignores the “and” portion of the “and/or” language and simply argues that the wording of the order “clearly states that Appellant was told he could set the case down for a hearing or file an appeal.” We read the “or” language to contemplate the possibility that Appellant may decide not to appeal the claims for post-conviction relief denied and be satisfied with a de novo sentencing hearing. We read the “and” language to contemplate the possibility that Appellant may appeal the claims denied and subsequently proceed with a de novo sentencing hearing if the appeal failed. We do not agree with the State that we should read the “and/or” language to mean the trial court was granting post-conviction relief on one ground, conditioned on Appellant not filing an appeal as to the other grounds.

We also disagree with the State’s argument that the sentencing court properly determined that a de novo sentencing hearing was “unnecessary” because the sentencing judge, in the order denying the hearing, indicated that he would not have sentenced Appellant as a youthful offender, even had the argument been made at sentencing. While it is true the decision whether to impose a youthful offender sentence was up to the judge’s discretion, Appellant was entitled to a de novo hearing in which he could present any further evidence not presented at the original sentencing and make arguments not previously raised. The original sentencing court could not properly exercise discretion on the issue without hearing such evidence and argument first.

We therefore quash the order denying Appellant’s motion for a de novo sentencing hearing and remand the case for further proceedings before a judge other than the original sentencing judge. Appellant, represented by counsel, must be present for the de novo sentencing. We recognize the order granting post-conviction relief specifically ordered a de novo sentencing by the original sentencing judge. However, given the announced decision by the original sentencing judge before considering the evidence and arguments to be presented on the issue, the appearance of prejudgment must be avoided and sentencing by a different judge is required.

Reversed and remanded with instructions.

Damoorgian and Forst, JJ., concur.


author: Per Curiam.

text:
    Perry JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-291
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Michael B. Cohen of Michael B. Cohen, P.A., Fort Lauderdale, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

Per Curiam.

We accept the State’s concession that the trial court erred in denying as untimely and successive Appellant’s October 6, 2013 amended rule 3.850 motion. As acknowledged by the State, Appellant’s amended motion was filed within the thirty (30) days the trial court provided for Appellant to file an amended motion with a proper oath. The trial court’s December 16, 2016 order is reversed, and the matter remanded for further proceedings on the amended motion.

Reversed and remanded.

Gerber, C.J., Klingensmith and Kuntz, JJ., concur.


text:
    Douglas EDDIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2153
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Douglas Eddie, Crawfordville, pro se.
    No brief filed for appellee.
   Per Curiam.

We reverse and remand the order denying appellant’s rule 3.850 motion because it was error for the trial court to summarily deny the motion “without explanation, without ordering a state response, and with no record attachments.” Thompson v. State, 202 So.3d 927, 928 (Fla. 4th DCA 2016).

The State contends that the motion is legally insufficient and the trial court’s order should be affirmed without prejudice. However, to the extent the denial of the motion was based on its legal insufficiency, the trial court erred by failing to provide appellant an opportunity to file an amended motion. Fla. R. Crim. P. 3.850(f)(2); see Spera v. State, 971 So.2d 754, 761 (Fla. 2007); Nottage v. State, 61 So.3d 1231, 1232-33 (Fla. 3d DCA 2011). Reversed and remanded for further proceedings.

Reversed and remanded.

Gross, Taylor and Forst, JJ., concur.


author: Kuntz, J.

text:
    Armando RIVAS, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as, Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2006-33CB, Mortgage Pass-Through Certificates, Series 2006-33CB, Luz C. Rivas, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Bank, FSB, Estates of Boynton Waters West Homeowners’ Association, Inc., Appellees.
    No. 4D17-3629
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2018]
    Armando Rivas, Boynton Beach, pro :se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Adam G. Schwartz of Akerman LLP, West Palm Beach, for appellee The Bank of New York Mellon.
   Kuntz, J.

The Borrower appeals from an order denying his motion to vacate a foreclosure judgment. After the foreclosure judgment was rendered, the Borrower appealed the judgment. Later, and during the pendency of the Borrower’s appeal from the foreclosure judgment, the Borrower filed the motion to vacate at issue in this appeal. The circuit court denied the motion to vacate and the Borrower filed a notice of appeal.

The Bank asserts that the circuit court lacked jurisdiction to consider the Borrower’s motion to vacate during the pendency of the appeal of the foreclosure judgment and, -as a result, the court’s order is void. Further, the Bank moves to dismiss this appeal, arguing that this Court is without jurisdiction to consider an appeal of a void order. The Borrower responds .to the Bank’s motion, to dismiss and, in addition to various other, requests, asks that we vacate the 'court’s order denying .the motion.

We agree that the circuit court’s order is void and that .we lack jurisdiction to review the merits of the court’s order. However, dismissal of the appeal is not the appropriate remedy, as we have jurisdiction to consider whether the circuit court acted outside the scope of its own jurisdiction. Instead, the appropriate remedy is to vacate or quash the void order. See, e.g., Daniels v. State, 712 So.2d 765, 765 (Fla. 1998); see also Sec. Nat’l Mortg. Co. v. Reid, 185 So.3d 1265, 1266 (Fla. 4th DCA 2016) (declining to reach the merits of the order appealed because the trial court lacked jurisdiction to enter it).

We therefore do not reach the merits -of this appeal and instead quash the order denying the motion to vacate the-foreclosure judgment. In so doing we express no comment on the merits of the court’s denial of the motion to vacate nor the underlying foreclosure judgment.

Order quashed.

Gross and Taylor, JJ., concur.

      . In light of our disposition, we deny the-Bank's motion to dismiss appeal as moot.


author: PER CURIAM.

text:
    Robert S. Tripka a/k/a Robert Stanley TRIPKA, Appellant, v. WACHOVIA MORTGAGE, FSB f/k/a World Savings Bank, FSB; SunTrust Bank; Suzanne Hennessey; and Department of Revenue, Appellees.
    Case No. 2D16-3185
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    Steve Bartlett of The Law Office of Steve Bartlett, P.A., Trinity, and April Carrie Charney, Venice, for Appellant.
    Linda Spaulding White of Broad and Cassel, LLP, Fort Lauderdale, for Appel-lee Wachovia Mortgage, F.S.B. f/k/a World Savings Bank, F.S.B.
    No appearance for remaining Appellees.
   PER CURIAM.

Affirmed.

CASANUEVA, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: WALLIS, J.

text:
    Neil G. POWELL, M.D., Appellant, v. Irene WASHINGTON, George Washington and Government Employees Insurance Company, Appellees.
    Case No. 5D16-3936
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017

      Jim McCrae and J. Keith Ramsey, of Holland & Knight LLP, Orlando, for Appellant.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Ap-pellee, Irene Washington.
    No Appearance for Appellee, George Washington.
    No Appearance for Appellee, GEICO.
   WALLIS, J.

Neil G. Powell, M.D., appeals the trial court’s final judgment granting attorney’s fees and costs to Irene Washington as a sanction. Because the trial court erred by imposing the sanction, we reverse.

This appeal arises from an action by Washington for uninsured/under-insured motorist coverage against her insurer, GEICO, in which GEICO disclosed Powell as an expert witness. Powell initially objected to Washington’s subpoena duces te-cum, asserting that he “is employed by the Department of Defense as the only neurosurgeon east of Mississippi” and “is required to file a formal notice of leave at least six weeks in advance.” Despite the objection, the trial court compelled Powell’s attendance. ■

Washington later discovered that the Air Force, Powell’s actual employer, had two neurosurgeons “east of the Mississippi.” Powell also admitted that he provided only some of the requested records at the deposition and emailed the rest directly to GEICO’s counsel. Accordingly, the trial court ordered Powell to attend a second deposition to provide the remaining records. Based on these facts, Washington moved to strike Powell for fraud on the court and asked that the court sanction Powell and his counsel “for continuously and knowingly perpetrating this fraud on the Court.” Over two separate hearings, the trial court twice declined to strike Powell, finding that his actions did not rise to the level of fraud on the court. However, the trial court ultimately ordered Powell to pay Washington $4,997.45 in fees based on Powell’s “misguided statements that caused [Washington] to double-check on him to determine that, in fact, he wasn’t being completely truthful with us when he was making those statements.”

Although not expressly labeled as such by Washington -or the trial court, the award of attorney’s fees most resembles a sanction for indirect criminal contempt because “the purpose of the fine was to punish [an expert witness] rather than to coerce his compliance,” and “the order contained no purge provision permitting [him] to avoid paying the fine.” See Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007). “[I]ndirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, ... and failure to strictly follow rule 3.840 ‘constitutes fundamental, reversible error.’” Berlow v. Berlow, 21 So.3d 81, 84 (Fla. 3d DCA 2009) (quoting Graham v. Fla. Dep’t of Child. & Fams., 970 So.2d 438, 441-42 (Fla. 4th DCA 2007)). “Because criminal contempt is ‘a crime in the ordinary sense,’ imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants.” Parisi v. Broward Cty., 769 So.2d 359, 364 (Fla. 2000) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)).

Here, Washington moved for, and the trial court awarded, sanctions as punishment without the proper prosecution, requiring, inter alia, an order to show cause, an opportunity to respond, a full contempt hearing, and a judgment supported by a recital of the factual basis. See Fla. R. Civ. P. 3.840. Because the trial court imposed attorney’s fees as sanctions against Powell without the correct procedure or the requisite finding of contempt, we reverse and remand for further proceedings. See Berlow, 21 So.3d at 84; Price, 954 So.2d at 100 (reversing fees as a criminal contempt sanction because “the circuit court did not find [the witness] to be in contempt, and it did not recite a factual basis -for doing so”).

REVERSED and REMANDED.

■ ORFINGER and EDWARDS, JJ., concur.

      . The trial court may proceed with contempt on remand, but it "must elect either civil or criminal contempt and comply with the rules regarding the selected measure.” See Berlow, 21 So.3d at 84.


text:
    Joseph KLOCK, Appellant, v. Mario CAPONE, Appellee.
    No. 3D16-1944
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Rehearing Denied December 1, 2017
    Rasco Klock Perez Nieto and Joseph P. Klock, Jr. and Susan E. Klock, for appellant.
    The Fischman Law Firm, P.A. and Bruce D. Fischman, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See § 68.065(6), Fla. Stat. (2015) (providing: “After commencement of the action but before the hearing, the maker or drawer may tender to the payee, as satisfaction of the claim, an amount of money equal to' the sum of the payment instrument, the service charge, court costs, and incurred bank fees”) (emphasis added); United Auto. Ins. Co. v. Salgado, 22 So.3d 594, 600 (Fla. 3d DCA 2009) (observing: “ ‘The starting point for [the] interpretation of a statute is always its language,’ so that ‘courts must presume that a legislature says in a statute what it means and means in a statute what.it says there’ ”) (quoting Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) (additional citations omitted)). See also Clegg v. Chipola Aviation, Inc., 468 So.2d 1186, 1187-88 (Fla. 4th DCA 1984) (holding that oral contract by which defendant agreed to pay plaintiff in exchange for plaintiffs agreement to provide air charter service to a third party was not a promise to answer for the debt of another and thus fell outside the purview of the Statute of Frauds); Larnel Builders, Inc. v. U.S. Concrete Pipe Co., 117 So.2d 438 (Fla. 3d DCA 1960).


author: per Curiam.'

text:
    Abel Flores GONZALEZ, Appellant, v. STATE of Florida, et al., Appellees.
    No. 3D17-1404
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Rehearing Denied November 16, 2017
    Abel Flores Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Carrol Y. Cherry Eaton (Fort Lauder-dale), Senior Assistant Attorney General; Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and W. Hampton Johnson, IV (Fort Lauderdale), for appellees.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   per Curiam.'

Affirmed. See §§ 768.28(6)(a) and (b), Fla. Stat. (2017) (providing that pre-suit notice is a condition precedent to instituting a tort action against the State or one of its agencies); Gladstone v. Smith, 729 So.2d 1002, 1005 (Fla. 4th DCA 1999) (holding that “where no viable cause of action is asserted after repeated opportunities to amend, dismissal is appropriate”) (citing Nodal-Tarafa v. ARDC Corp., 579 So.2d 414 (Fla. 3d DCA 1991)).


author: SALTER, J.

text:
    LUCKY STAR HORSES, INC., et al., Appellants, v. DIAMOND STATE INSURANCE COMPANY, Appellee.
    No. 3D17-725
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Rehearing Denied December 7, 2017

      Lopez & Best, and Virginia M. Best, for appellants.
    Cole Scott & Kissane, and Scott A. Cole and Lissette Gonzalez, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   SALTER, J.

This is an appeal from a non-final order granting the appellee/insurer’s motion to stay a circuit court case and to compel arbitration. The two appellants/insureds, Lucky Star Horses, Inc. (“Lucky Star”), and Marlen Fundora, claimed coverage and insurance benefits under an “Equine Mortality Policy” following the death of a Paso Fino horse owned by Ms. Fundora. Although the appellants have identified a succession of pleadings filed in the case before the insurer, Diamond State Insur-anee Company (“Diamond State”), invoked the limited right to arbitration in the insurance policy, the trial court found the appellants’ claim of waiver unpersuasive and granted Diamond State’s motion to stay the lawsuit pending arbitration. On the unusual facts presented by the record in this case, we affirm.

Facts and Procedural History

In April 2014, Ms. Fundora bought the four year-old, registered, Paso Fino stallion, “Secreto del Rosario,” for $180,000.00, payable $40,000.00 at the time of the sale and. delivery and in monthly installments payable thereafter for a period of 19 months. The Equine Mortality Policy at issue here insured the life of the stallion for a policy period April 28, 2014, to April 28, 2015. No formal documentation is in the record transferring ownership of the horse to Lucky Star, but both Lucky Star and Ms. Fundora are identified in the policy as the “named insured” at the same address in Hialeah, Florida. Lucky Star is a Florida corporation wholly owned and controlled by Ms. Fundora. Ms. Fundora testified that she intended to convey the stallion to Lucky Star when the horse was older and would become a breeder.

Before any such transfer of ownership, however, the horse died—on January 17, 2015—while in a stall awaiting a competitive Paso Fino show at Tropical Park. Ms. Fundora promptly notified the insurer by telephone, and worked with the insurer to arrange a necropsy. In compliance with the policy, Ms. Fundora submitted a single, sworn proof of loss on behalf of both Lucky Star and herself, and Diamond State investigated (including an examination under oath of Ms. Fundora). In June 2015, having received no payment for her claim of loss under the policy, Ms. Fundo-ra retained counsel and filed a circuit court lawsuit with Lucky Star as the sole plaintiff and Diamond State as the defendant.

Diamond State filed an answer and numerous affirmative defenses, and the parties exchanged pretrial discovery requests. To that point, Diamond State did not move to compel arbitration or assert that right as an affirmative defense. Diamond State did, however, contend that Ms. Fundora was the only owner, of the horse, such that Lucky Star had no standing to make a claim for benefits under the policy. In November 2016, Diamond State moved for final summary judgment on this issue, contending that there was no genuine issue of material fact that Lucky Star had no ownership interest in the insured stallion.

Two weeks later, Lucky Star (then the only plaintiff) moved to amend the complaint to add Ms. Fundora as an individual plaintiff and claimant under the policy, attaching a proposed amended complaint. Diamond State opposed the motion, but the motion to amend was granted and the amended complaint was deemed filed in December 2016.

In January 2017, and before filing any other pleading or paper in response to the amended complaint, Diamond State filed its motion to compel arbitration and stay the circuit court proceedings. Diamond State invoked the limited arbitration provision in Part V. of the Equine Mortality Policy:

Should there arise a difference of opinion solely concerning the value of a deceased horse which cannot be amicably settled between the Company [Diamond State] and the Insured, it is understood and agreed that such difference of opinion shall, by agreement of the Company and the Insured, be submitted for arbitration to three (3) disinterested parties, one to be selected by the Company, one to be selected by the Insured, and one to be selected by the two so selected. A decision of the majority of the three shall be final in each case. Each party shall pay for the expense of its own arbitrator and a pro rata portion of the expenses of the third arbitrator.

Diamond State conceded in its motion to compel arbitration that it “is no longer contesting liability in any way relative to this matter due to Plaintiffs’ recent pleading amendment, and the dispute solely concerns the value of a deceased horse, which falls well within the province of the Arbitration Clause.” Lucky Star and Ms.

Fundora opposed the motion to compel arbitration, asserting waiver. Diamond State asserted that its initial defense had been directed against Lucky Star only (on the basis that Lucky Star had no ownership interest in the horse), involving no issue as to the horse’s value. Diamond State contended that oncp Ms. Fundora was added as a plaintiff in the amended complaint, it dropped any defense relating to standing, liability, or coverage, and immediately invoked its right to arbitration. The value of the deceased horse, Diamond State argued, was never an issue until that point in the proceedings.

The trial court agreed and granted the motion. This appeal followed.

Analysis

In the absence of any argument that the law of any state other thán Florida applies to the- subject policy, we are guided by the seminal case of Seifert v. United States Home Corp., 750 So.2d 633 (Fla. 1999). The trial court correctly analyzed the three required elements of a motion to compel arbitration under Seifert. First, in this case' the parties do not deny that the policy contains an arbitration provision. Second, the tidal court correctly determined that value is an arbitrable issue. The applicable policy provision provides that Diamond State is to “indemnify the Insured for the actual cash value of such horse at the time of the accident.” The actual cash value of the stallion at the time of its- death is a matter that became, a disputed issue once Ms. Fundora, the owner of the horse, joined the lawsuit as a party plaintiff. And as a result of the concessions by Diamond State, that value is the only issue in contention.

The third element of Seifert requires a determination of whether the party invoking arbitration has waived that right by virtue of its pleadings and conduct in the lawsuit. The unique feature of the present case is that the case proceeded for over a year, and numerous pleadings were filed (and depositions were taken), before the motion to compel arbitration was filed. The distinguishing feature of the present case is that all of those actions occurred in a case in which the only plaintiff at the time had no right to compensation under the policy because it did not own the deceased horse. It was not until this defect was cured, through the filing of the amended complaint adding Ms. Fundora as plaintiff, that liability was appropriately conceded by Diamond State, and the limited arbitration clause—confined to the issue of actual cash value—became pertinent.

“Waiver,” for purposes of rights to arbitration and other important rights, means “the voluntary and intentional relinquishment of a'known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005). The record in this case discloses that the “known right” to be considered is Diamond State’s right to invoke arbitration to determine actual cash value if disputed by the insured owner of the horse at the time of its death, i.e., Ms.. Fundora. Diamond State could not, and did not, waive its right to arbitrate value in defending the initial phase of the case against Lucky Star.

Finally, “All questions about waivers of arbitration should be construed in favor of arbitration rather than against it.” Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005).

For all these reasons, we affirm the non-final order staying the circuit court lawsuit and directing the parties to submit to arbitration in accordance with the terms of the policy.

      . The notice of appeal only designated one of the two plaintiffs (Lucky Star) as appellant, but the initial brief filed contemporaneously with the notice included the second plaintiff, Ms. Fundora, as an appellant as well. The non-final order under review also reflects that it applies to both appellants.

      . Lucky Star and Ms. Fundora also argued that the arbitration provision is ambiguous, amounting to an "agreement to agree” and requiring consent by the parties. The trial court rejected this argument, and we do so as well without further discussion.

      . The provision limits the benefit payable to an amount "specified in the Schedule applicable to such horse, less any Deductible.” The subject policy had a zero deductible amount, and the Schedule J limit of liability was shown to be $180,000.00.

      . In the order under review, the trial court also directed that a status report be filed in six months. This salutary ruling recognizes that the arbitration is quite limited—"actual cash value” of the insured horse at death— ■ and allows the circuit court to monitor and. prod, as necessary, to assure progress in the case.


text:
    Grady ROBINSON a/k/a Graddy Robbinson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0759
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017
    Grady Robinson a/k/a Graddy Robbin-son, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   PER CURIAM.

Defendant Grady Robinson appeals the trial court’s order denying his motion to correct illegal sentence. Robinson contends his habitual felony offender sentence was illegal because he was convicted of only one prior non-sequential felony. See § 775.084(l)(a), Fla. Stat. (1994) (to qualify as an “habitual felony offender,” the defendant must have “been convicted of any combination of two or more felonies in this state or other qualified offenses,” “[t]he felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony or other qualified; offense of which he was convicted,” and the “felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of § 893.13 relating to the purchase or the possession of a controlled substance”).

We affirm for the reasons explained in the trial court’s detailed order. At Robinson’s 1995 sentencing hearing in this case, the state introduced fourteen certified convictions showing that in the years before this most recent burglary conviction, he had been convicted of, and sentenced for (among other crimes): battery on a law enforcement officer in 1993; false- imprisonment and selling controlled' substances in 1992; arson in 1992; burglary in 1989; burglary in 1988; another burglary in 1988; burglary in 1987; and burglary and grand theft in 1985. These -certified convictions attached to the trial court’s order conclusively refute Robinson’s claim that he was illegally sentenced as an habitual felony offender. See McBride v. State, 665 So.2d 329, 330 (Fla. 5th DCA 1995) (“[T]he defendant now challenges his sentences, arguing that he was not eligible for. habitual offender status because,.at the .time of the December . 3, 1990 sentencing, he had only one prior felony conviction. The record before us clearly, refutes this .argument. In this regard, the attachments to the trial.court’s order denying the defendant’s 3.800 motion evidence three prior felony judgments.-... Since defendant had three prior felony convictions, he was properly sentenced as an habitual offender.”).

Affirmed.


text:
    Karin SHALEESH, Appellant, v. Anthony SHALEESH, Appellee.
    No. 3D17-2094
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017
    Rehearing Denied December 1, 2017
    Lorenzen Law P.A., and Dirk Lorenzen, for appellant.
    Cynthia J. Dienstag, P.A, and Cynthia J. Dienstag, for appellee.
    Before SALTER, EMAS and SCALES, JJ.
   PER CURIAM.

Karin Shaleesh (“former wife”) challenges a non-final order granting Joseph Shaleesh’s (“former husband”) motion for a temporary suspension of the parties’ timesharing plan with respect to their minor child, LS, and permitting LS to reside with the former husband in Miami-Dade County pending the outcome of a final hearing on the former husband’s verified petition for modification of timesharing and relocation of LS to Florida. “In order to obtain a temporary custody modification, the moving party must satisfy a two-part test' by establishing through competent, substantial evidence that (1) there has been a substantial or material change in circumstances and (2) the modification is in the best interest of the child or children involved.” Bon v. Rivera, 10 So.3d 193, 195 (Fla. 4th DCA 2009); see also Bronstein v. Bronstein, 167 So.3d 462, 464 n.3 (Fla. 3d DCA 2015). Upon reviewing the transcripts of the hearing conducted below, at which: (1) the former wife was both present and participated; and (2) the trial court conducted a transcribed, in camera interview of LS, we find that the trial court did not abuse its discretion in entering the non-final order on review. Bon, 10 So.3d at 195 (“The standard for reviewing a trial court’s ruling on a motion to modify custody is abuse of discretion, although the trial court has much less discretion to modify a custody order than it enjoys in making the original custody determination.”).

Affirmed.


author: ROTHENBERG, C.J.

text:
    Marcus MOLINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1977
    District Court of Appeal of Florida, Third District.
    Opinion filed November 08, 2017

      Marcus Molina, in propér person.
    Pamela Jo Bondi,. Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   ROTHENBERG, C.J.

Marcus Molina (“the defendant”) appeals the trial court’s order denying his motion for postconviction relief in which he raised two grounds of ineffective assistance of trial counsel: (1) the failure of his trial counsel to request a presentence investigation prior to the imposition of sentence; and (2) the failure of his trial counsel to correct the plea agreement the defendant signed, which the defendant claims does not reflect the terms his lawyer had told the defendant he would be accepting pursuant to the negotiated plea. We affirm.

The record reflects that after sexually assaulting his stepdaughter on numerous occasions over a two-year period beginning when his stepdaughter was approximately thirteen years old, the defendant, accompanied by his pastor, turned himself in to the police and confessed to committing the following sexual acts upon the victim: (1) sucking the victim’s breasts, performing oral sex (his mouth to her vagina) on the victim, and digitally penetrating the victim’s vagina at least ten times; and (2) having penile/vaginal intercourse with the victim at least twenty times. Upon making these admissions, the defendant was arrested and charged- with thirty counts of lewd and lascivious battery and thirty counts of lewd and lascivious molestation. Thereafter, the State filed an information charging the defendant with seven counts of sexual activity with a child by .a person with familial or custodial authority, first degree felonies, each punishable'up to thirty years in prison.

Based .on .negotiations with the State, the State and the defendant agreed that the State would file an amended information charging the defendant with seven counts of aggravated child abuse, rather than seven counts of sexual activity with a child by a person with familial or custodial authority, so that the defendant would not be designated a sexual predator; and the defendant would plead guilty to the seven counts of aggravated child abuse, be sentenced to ten years in prison followed by ten years of probation, and as a special condition of probation, the defendant would abide by all of the conditions specially identified in a separate plea agreement signed by the defendant. The defendant accepted these terms, signed the written plea agreement, and after being fully eolloquied by the trial court, -pled guilty to the amended information, and was sentenced.

The Defendant’s Postconviction Claims

A. Failure to request a presentence investigation

The defendant contends that his trial counsel provided ineffective assistance of counsel by not requiring the trial court to order and consider a presentence investigation (“PSI”) prior to accepting the defendant’s negotiated plea. The defendant further asserts that a PSI “may well have contained a recommendation for a non-incarcerative sanction—which could have provided the trial court with a legitimate basis to depart from the plea-agreement.” Although we agree with the defendant that, as a first-time felony offender, he was entitled to have a PSI conducted prior to the imposition of sentence, see Fla. R. Crim. P. 3.170(a); Hardwick v. State, 630 So.2d 1212, 1215 (Fla. 5th DCA 1994), we conclude that the defendant has failed to allege and demonstrate that his trial counsel’s failure to request a PSI resulted in any prejudice to him, as required under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, we note that this was a negotiated plea, and the defendant received the sentence he specifically negotiated for with the State. The record reflects that prior to entering-his plea, the defendant was facing the possibility of a sentence totaling 210 years of incarceration for committing seven separate acts of sexual activity with a child by a person with familial or custodial authority. Each separately charged count carried a maximum sentence of thirty years in prison and the requirement that the defendant, if convicted,- must be designated a sexual offender (sexual predator), which would have required that he register as such and have to comply with the numerous lifetime restrictions associated with that designation.

However, based on the negotiations between defense counsel and the State, the State agreed to reduce the charges to seven counts of aggravated child abuse and the imposition of a sentence of ten years of incarceration followed by ten years of probation with the special conditions listed in the written plea agreement. The agreed-upon resolution of the case was based on the State’s desire to shield the child- victim from the further trauma'of a deposition and testifying at a trial; the State’s consideration of the mitigation evidence presented by defense counsel and a report provided by Dr. Sczechowicz;. and the defendant’s-main concern, which was that he did not want to be designated as a sexual predator. ■ ■

Second, the mitigation evidence the defendant claims may have led to the imposition of a lesser sentence, had a PSI been conducted, was presented to the State and to the trial court, and was already considered by the State and the trial court. For example, the plea transcript reflects that the defendant wrote an eight-page letter, which was presented to the trial court at sentencing and which both the State and the trial court read and considered. After reading the letter, the trial' court commented on its contents:' that the defendant had turned himself in to the police, served this country with distinction, had no prior criminal record, and believed he had been a good father. The trial court, however, noted that the victim was “a little child” whose childhood was taken away from- her and that the defendants actions had changed the victim’s life forever.

Based on this record, the defendant has failed to show that there exists a reasonable probability that if a PSI had been prepared, then his sentence would have been further mitigated, especially because this was a State-offered plea and the trial court had no authority to reduce the charges to aggravated child abuse to avoid a sexual predator classification, which was the defendant’s main concern. This was a negotiated plea, which the defendant agreed was in his best interest, and it was offered in part, based, on the mitigating factors presented by the defendant and considered by the State. Thus, as in Ortiz v. State, 277 So.3d 682, -, 2017 WL 3495872 (Fla. 3d DCA Aug. 16, 2017) (finding- no prejudice by the failure- of defense counsel to request a PSI or to investigate and introduce mitigating evidence where Ortiz was sentenced pursuant to a negotiated plea rather than pursuant to an open plea to the court, and Ortiz was given exactly what he bargained for), and Calla-way v. State, 202 So.3d 901, 905 (Fla. 3d DCA 2016) (finding no- “prejudice flowing from the failure to request a presentence investigation where Callaway was sentenced according to a plea- agreement he bargained for, rather than as a result of a trial or an open plea to the court and a sentencing hearing where the trial court is asked to consider aggravating and mitigating circumstances when- determining what sentence to impose after a finding of guilt”), we find no prejudice; ■

B. Failure to seek correction of the plea agreément

The defendant claims that he accepted the State’s offered plea of ten years’ incarceration followed by ten years of probation based on his trial counsel’s representation that the defendant would not-be designated as' a sexual offender, have to register as a sexual offender, or be subject to any sexual offender related conditions while on probation.' Despite these representations, after the defendant began serving his sentence, he discovered that his probation includes twenty-six conditions that are specifically related to sexual offenders. The defendant therefore claims that his trial' counsel provided ineffective assistance of counsel by failing to seek a correction of the terms of the defendant’s probation to reflect the bargained-for conditions prior to the defendant entering his plea of guilty before the trial court.

We agree with the trial court that this claim is conclusively refuted by the record and without merit. Unlike most pleas, this plea was accompanied by a very detailed written plea agreement, which set forth all of the conditions both the defendant and the State were agreeing to. It identified the individual counts and charges the defendant was pleading guilty to and the sentence that would be imposed. When addressing the probationary portion of the sentence, the written plea agreement carefully and fully listed each of the additional conditions the defendant-must comply with in addition to the conditions of probation enumerated in the probation order.

Paragraphs 2 and 3 of the plea agreement specifically provide that as a special condition of probation the defendant must enter, actively participate in, and successfully complete a Mentally Disordered Sexual Offender Treatment Program. Paragraphs 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, and 15 further explain the requirements the defendant must satisfy specific to the Mentally Disordered Sexual Offender Treatment Program he must attend and successfully complete, and the consequences for failing to. do so. Many of the other conditions spelled out within the agreement are also sexual offender related conditions. For example, paragraph 20 prohibits the defendant from residing in a setting where minors reside, paragraph 22 prohibits the defendant from dating or living with persons who have, (or have custody of) minor children, paragraph 23 prohibits the defendant from having unsupervised contact with minors, and paragraph 24 prohibits the defendant frotó teaching in public and private schools. And, importantly, unlike a designation as, a sexual predator, which imposes these conditions for life, the conditions -the defendant agreed to only extend for the duration of his probation (ten years).

The plea agreement and the plea colloquy transcript reflect that the defendant acknowledged that he understood and was accepting these conditions. Paragraph 35 of the written plea agreement states: “The execution of this plea agreement by the defendant constitutes an understanding, acknowledgment and agreement to the special conditions of probation as mentioned herein, in addition to the standard terms and conditions of probation appearing on the ‘Terms and Conditions of Probation’ form.” The defendant initialed the page containing paragraph 34 and each page before it where the special conditions are identified. '

On the final page of the plea agreement, paragraph 39 provides as follows:

Having read the above-mentioned terms of this plea agreement, and having been advised by my counsel, Derek Lewis, Esq., I, MARCOS MOLINA, freely and voluntarily enter into -this plea agreement and agree to abide by all terms and conditions of this plea agreement, and agree that failure to comply with any terms or conditions within this agreement constitutes a violation of probation and subjects me to be sentenced to the statutory maximum- penalties provided by law for the crimes for which I am now pleading guilty.

Just below this paragraph it states “This agreement is entered into freely and voluntarily on this 9th day of July, 2015,” followed by the defendant’s signature. The written plea agreement also contains the signatáres of the Assistant State Attorney and the defendant’s trial counsel and a statement and signature by the trial judge stating, “The Court, having reviewed this plea agreement with the defendant and conducted a plea colloquy with the defendant hereby ratifies the agreement and will sentence the defendant in accord with it.” '

In addition to the. written plea agreement signed by the defendant, which lists each and every one of the special conditions the defendant was agreeing to pursuant to his plea, the Order of Probation signed by the defendant states that the conditions of probation had been explained to the defendant and that he agreed to abide by them. The Order of Probation listed as a special condition of probation that the defendant must comply with the written plea agreement.

During the trial court’s plea colloquy of the defendant, the trial court specifically went over the written plea agreement with the defendant to make sure that he had signed the written plea agreement freely and voluntarily and with a full understanding of the conditions contained therein.

THE COURT: I’m going to show you a five-page plea agreement, which purports to have your initials on each of the pages, and your signature on page five, and I am going to ask you if you’ve signed this document.
Can you see that?
THE DEFENDANT: Yes, ma’am. I see that.
THE COURT: And do you intend to be bound by this document?
THE DEFENDANT: Yes, ma’am.
THE COURT: Is there anything in the plea agreement that you did not understand?
THE DEFENDANT: No, ma’am. I understood everything.
THE COURT: ... Are you satisfied with the services of your attorney?
THE DEFENDANT: Yes, ma’am.
THE COURT: Have you had enough time to talk to him?
THE DEFENDANT: Yes, ma’am, I did.
THE COURT: Did he explain the plea to you?
THE DEFENDANT: Yes, ma’am, he did.
THE COURT: He answered all of your questions?
THE DEFENDANT: Yes, ma’am, he did.

During the plea colloquy, the Assistant State Attorney also explained that the State had agreed to file an amended information (charging the defendant with aggravated child abuse rather than with having sexual activity with a child by a person with familial or custodial authority) to avoid the requirement that the defendant register as a sexual predator, and that although he was not being placed on sexual offender probation, the defendant was still going to be required to abide by certain sexual offender-related probation special conditions as spelled out in the written plea agreement. Specifically, the State noted that the written plea agreement required that the defendant undergo an MDSO (Mentally Disordered Sexual Offender) evaluation, receive treatment by Dr. Sczechowicz, and have no unsupervised contact with minors.

The record, therefore, conclusively refutes the defendant’s claim that the sentence imposed differed from what he agreed to accept and supports the trial court’s finding that the defendant’s trial counsel did not provide ineffective assistance of counsel by failing to seek correction of the written plea agreement to reflect the conditions agreed to by the defendant.

Affirmed.


author: PER CURIAM. MAKAR, J.,

text:
    Michael J. GILES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2665
    District Court of Appeal of Florida, First District.
    Opinion filed November 20, 2017
    Rehearing Denied January 26, 2018

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale and William Mi Kent of the Law Office of William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Michael J. Giles challenges the.denial of his motion for postconviction relief alleging several grounds of ineffective assistance of trial counsel. The only claim at issue in this appeal is that counsel was ineffective for advising Appellant not to testify, despite the court’s offer to allow him to do so, after the court permitted the State to introduce as rebuttal a recorded interview of Appellant that contradicted his defense at trial. We affirm.

Appellant was convicted of aggravated battery with a deadly weapon in connection with his involvement in an early-morning brawl that erupted between rival college fraternities. The jury found that, during the commission of the offense, Appellant discharged a firearm and caused great bodily harm. At trial, Appellant’s sole defense was self-defense (i.e., he admitted to discharging his firearm but did so in self-defense). In a recorded interview with police after his arrest, Appellant denied any involvement in the incident. Until the State’s rebuttal, the video of the interview had not been admitted into evidence, and Appellant, with advice of counsel, had not testified. After one of Appellant’s witnesses testified that Appellant had 'been attacked without provocation, the court agreed to allow the State to call a rebuttal witness and to introduce, through her testimony, Appellant’s recorded interview into evidence.

The court announced that it would not permit surrebuttal, but it would allow Appellant to take the stand before the recorded interview was played for the jury if he had changed his mind about not testifying. The court explained, however, that “we have got to do this now,” because it would not be fair to the State to allow Appellant to have “the final word.”

The court asked defense counsel, “Do you want to talk to [Appellant] and see if he’s changed his mind about testifying?” Counsel responded, ‘Yes, sir.... May I step out with [Appellant]?” The court denied counsel’s request to speak with Appellant and stated “[n]o. We need to do it quickly.” Counsel then asked if Appellant’s father could come forward, presumably to speak with Appellant. The court again denied counsel’s request, saying “[n]o. Let’s get this done.” After a brief pause, counsel tried again, asking, “Judge, would the Court give him permission to ■ notify the Court after the State presents their rebuttal?” Yet again, the trial court denied the request, stating “I’m not going to allow him to do it then. Like I say, if you want to call him as a witness, you call him now.” Defense counsel represented to the court that Appellant was going to maintain his right to remain silent. The court asked Appellant if he agreed, and Appellant replied, ‘Yes, sir.”

To maintain a claim for ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficiency was prejudicial to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the deficiency prong, the defendant must show that counsel’s representation “fell below an objective standard of reasonableness” by committing “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687-88, 104 S.Ct. 2052; Johnson v. State, 104 So.3d 1010, 1021 (Fla. 2012).

The postconviction court did not err in denying Appellant’s claim that counsel was ineffective for advising Appellant not to testify. Defense counsel’s testimony during the postconviction hearing, which is supported by the trial transcript, was that he did not give any advice to Appellant because there was no time to do so. Indeed, that is how Appellant now frames the issue on appeal. On appeal, Appellant argues that counsel’s failure to demand that the trial court give Appellant more time to consult with his family and counsel constitutes ineffective assistance of counsel. The record refutes Appellant’s claim. Counsel asked the trial court multiple times for additional time, far from the dissent’s characterization of counsel as a “potted plant.” And contrary to the dissent’s position that counsel had a duty to make a formal objection, counsel is not ineffective for failing to make futile objections. Hartley v. State, 206 So.3d 836, 838 (Fla. 1st DCA 2016) (“It is well settled that counsel is not required to make futile objections or motions.”). To the extent that it may have been error for the trial court to deny defense counsel’s requests, putting unnecessary pressure on Appellant to make an immediate decision as to whether he would testify, the issue should have been raised on direct appeal.

Because we conclude that Appellant failed to show that counsel’s representation fell below an objective standard of reasonableness, we affirm the trial court’s order denying Appellant’s motion for post-conviction relief.

WETHERELL and RAY, JJ., CONCUR; MAKAR, J., DISSENTS WITH OPINION.

MAKAR, J.,

dissenting.

At the most critical moment in his trial, Michael L. Giles received no advice from his attorney. In this post-conviction case, his trial counsel all but admits his representation was inadequate, abdicating the most crucial decision in the trial to an uninformed client, and deficiently protecting Giles’s right to testify in his defense.

Three charges of attempted second-degree murder against Giles stemmed from a fraternity fracas outside a Tallahassee nightclub during which Giles was severely attacked, resulting in him shooting his assailant. Giles’s entire defense was self-defense. Giles, a twenty-five-year-old active duty airman with service in Kuwait, Iraq, and Japan, had a clean record at the time of the incident. After the shooting, he told his arresting officer on a videotape that he had nothing to do with the shooting, which was untrue. Mid-trial, when the judge ruled that the videotape would be played to the jury, Giles’s counsel—rather than competently asserting Giles’s right to make an informed decision by consulting with him about whether to exercise his constitutional right to testify in his defense—allowed his client to make a split-second, uninformed decision on his own. Yes, the trial judge applied undue pressure to force an immediate decision and defense counsel’s request to speak with Giles was denied. But defense counsel’s duty was not to be a potted plant at this decisive moment; more than submissive acquiescence in the unfolding circumstances and the trial judge’s perfunctory denial was required. Rather than registering an objection, counsel instead ratified his client’s uninformed decision without protestation. His clear duty was to make a formal objection, explaining that at this obviously critical juncture in the trial he was obligated to discuss with his client whether to exercise the constitutional right to testify, short of which his counsel would be woefully deficient. As was evident at the time, without Giles’s trial testimony as a counter-punch, playing the videotape at trial would be “seismic” and a “game changer” for his client, which turned out to be true: the jury deadlocked and had to be pressed to try again via an Allen charge. It ultimately reached a compromise verdict, finding Giles guilty on a lesser-included offense of aggravated battery and not guilty as to the two others, which nonetheless resulted in a twenty-five-year minimum mandatory sentence that even the seasoned trial judge said was “overly harsh on the facts of this case.”

Had Giles testified, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”). Giles, having established his trial counsel provided inadequate representation and a reasonable probability that his testimony would have heightened the already-existing doubt about his guilt, is entitled to relief.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


text:
    Eric WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1591
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017.

      Eric Williams, in proper person.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

The order under review denying relief under Florida Rule of Criminal Procedure 8.801 is reversed and remanded. Upon remand, if the trial court finds the motion is facially sufficient and timely, and that Defendant is entitled to relief, it shall grant the motion; if it finds the motion facially insufficient, it shall identify the defects and provide the Defendant an opportunity to amend; if the court finds the motion should be denied, it shall attach to the order those portions of the files and records that conclusively show the defendant is entitled to no relief, as required by Rule 3.801(e)(incorporating provisions of Rule 3.850 (e), (f), Cj)> (k), and (n)).

Reversed and remanded.