author: Forst, J.

text:
    Pablo DELLATORRE, Appellant, v. BUCA, INC., Appellee.
    No. 4D16-65
    District Court of Appeal of Florida, Fourth District.
    February 1, 2017
    Michael Lewis Beckman of Viles & Beckman, L.L.C., Fort Myers, for appellant.
    Mark D. Schellhase of GrayRobinson, P.A., Boca Raton, and Alissa M. Ellison of GrayRobinson, P.A., Tampa, for appellee.
   Forst, J.

Appellant Pablo Dellatorre appeals the trial court’s final summary judgment in favor of Appellee Buca Restaurants, Inc. (“Buca”). We affirm without discussion Appellant’s first argument on appeal regarding whether the trial court impermissibly relied on personal opinion when granting Buca’s motion for summary judgment. We write solely to address Appellant’s second contention that there remained genuine issues of material fact precluding summary judgment. As discussed below, we agree with Appellant and reverse and remand.

Background

In 2014, Appellant dined at one of Buca’s restaurants, where he had eaten twice before. He ordered the “Linguine Frutti di Mare,” a pasta dish he had eaten on one of his previous visits, which the menu described as having “shrimp, baby clams, mussels and calamari in spicy red clam sauce.” Accompanying the description was a picture of the dish itself showing linguine surrounded by approximately twenty fully-intact mussel shells. A corporate representative for Buca testified at a deposition that, according to standard operating procedure, chefs typically prepare this dish by placing linguine in the center of the plate, and then surrounding the linguine (and the other seafood) with a ring of mussels. Chefs visually inspect each mussel, making sure not to serve broken mussel shells. As the representative explained, “if there’s a shell that is not completely intact, meaning it’s not opened fully or it’s not 100 percent, that dish would never even get to the pasta stage.”

Appellant testified at his deposition that, after consuming most of his entrée, “[t]he plate was almost empty. I put the last bite in my mouth, as we are here; then all of a sudden I felt something here that was going down and cutting me. It seemed as if it was opening my chest up in two as if I had swallowed a knife.” Appellant was rushed to the hospital where surgery was performed. The medical staff extracted what both parties agreed was “a broken mussel shell, about one-and-a-half to two inches long.”

Appellant also explained at the deposition that he “wasn’t expecting to find this broken shell in the plate of pasta.” He swore in an affidavit that he “did not cause the shells to break in [his] dish at any point during the meal. The shell was broken and lodged in [his] throat [and] was served to [him] in the broken sharp condition by Defendant, Buca, Inc.” Another patron dining with Appellant that night swore the same: that Appellant did not break the mussel shell, and that Buca did instead. However, Buca’s representatives denied the restaurant could have served Appellant a broken mussel shell. At a deposition, Buca’s corporate representative suggested at various times that Appellant must have broken the mussel shell when he ate it.

Ultimately, the trial court granted Buca’s motion for summary judgment, finding that there were no genuine issues of material fact and that Appellant was himself negligent in eating the broken mussel shell.

Analysis

“The standard of review for an order granting summary judgment is de novo.” Int’l Christian Fellowship, Inc. v. Vinh on Prop., Inc., 954 So.2d 1214, 1215 (Fla. 4th DCA 2007) (quoting 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So.2d 1220, 1221 (Fla. 4th DCA 2004)).

In order for a party to prevail under summary judgment, he or she must satisfy two steps: “[t]he judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see also Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla. 1977); Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006). As the Second District Court of Appeal stated, when a record “raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000).

Here, the record raises doubt that there are no genuine issues of material fact. There are at least two: which party broke the mussel shell Appellant consumed, and whether the broken mussel shell was submerged in the pasta when it was served to Appellant (and thus not visible when consumed).

Buca’s corporate representative denied several times at a deposition that Buca would have served Appellant a broken mussel shell, and averred that Appellant must have broken the shell: “It would be my understanding that the shell was broken upon the guest’s contact with the dish. ... Experience being I’ve never seen a broken shell in a dish that’s been received that’s caused a complaint.” Buca further represented that it had a standard operating procedure in which chefs would visually inspect each mussel and then hand place each one in a circle around the pasta—not in the pasta. Buca’s corporate representative acknowledged the dish was supposed to come with fully intact mussel shells, placed around the linguine. In direct disagreement, Appellant asserted in his affidavit and at his deposition that Buca served him the broken mussel shell, and that he did not break it. A witness at the scene that was dining with Appellant also swore in an affidavit that Buca must have served Appellant the broken shell. Moreover, both Appellant and the witness claimed the broken shell was “hidden” under the pasta, not placed in the ring of mussels.

Which party broke the mussel shell and if it was submerged in the pasta when served are dispositive factual issues with respect to determining if Buca was negligent. If Appellant broke the shell after it was served to him and it was not served submerged (and thus not visible) in the pasta, it would be difficult to conclude that Buca was negligent for serving this order of Linguine Frutti di Mare—a dish known to contain mussel shells. However, if Buca did in fact serve Appellant the broken mussel shell and/or it was not visible when the entrée was presented to Appellant, then the jury could find that no patron would reasonably expect to so find a broken shell in this dish.

We conduct a “reasonable expectation” test to determine if a restaurant is negligent when it serves a patron “a harmful substance.” Zabner v. Howard Johnson’s, Inc., 201 So.2d 824, 825-26 (Fla. 4th DCA 1967). In Zabner, a restaurant served a patron walnut maple ice cream that contained a walnut shell that injured the patron. Id. at 825. The trial court held that the restaurant was not negligent and was entitled to summary judgment because the walnut shell was a “natural” ingredient of the walnut ice cream. Id. On appeal, we noted that a patron is likely to reasonably expect a natural ingredient in his or her meal, but not always. Id. at 826. Determining that it was unclear whether a patron would reasonably expect a walnut shell in his or her walnut ice cream, we remanded for a jury trial, explaining, “what might be natural to the ingredients of that food prior to preparation and what is reasonably expected by the consumer is a jury question in most cases.” Id. at 828.

The test should be what is “reasonably expected” by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.

Id. at 826. As such, “the test is related to the foreseeability of harm on the part of the defendant.” Id. at 827; see also Mexicali Rose v. Superior Court, 1 Cal.4th 617, 4 Cal.Rptr.2d 145, 822 P.2d 1292, 1303 (1992) (“[I]t is a question for the trier of fact to determine whether the presence of the injury-producing substance was caused by the failure of the defendants to exercise reasonable care in the px-eparation of the food, and whether the breach of the duty to exercise such care caused the consumer’s injury.”). Compare Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64, 69 (1960) (“What is to be reasonably expected by the consumer is a jury question in most cases; ... we cannot say as a matter of law that a patron of a restaurant must expect a [chicken] bone in a chicken sandwich .... ”), with Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.2d 975, 978-79 (Ala. 1983) (adopting the reasonable expectation test but affirming the trial court’s judgment that, as a matter of law, a patron could reasonably expect to find a fish bone in a fish fillet).

Although the trial court here applied the correct reasonable expectation test, this case is no exception to the general rule that most cases presenting this scenario require jury trials. A Buca patron would reasonably expect whole mussel shells with the pasta. After all, the menu explained and showed that the dish came with fully intact mussels, arrayed in a ring on top of the pasta. The determinative questions at issue in this case are whether Appellant was served a broken mussel shell and whether it was submerged (“hidden”) in the pasta. As material factual disputes remain to be resolved, the grant of summary judgment was inappropriate.

Conclusion

There remain at least two genuine issues of material fact in Appellant’s lawsuit against Buca: whether Appellant or Buca broke the mussel shell, and whether the shell at issue was invisibly served underneath the pasta. As such, the trial court erred in finding Buca entitled to judgment as a matter of law. The court reached an erroneous conclusion in its application of the reasonable expectation test when it found that Appellant should have reasonably expected a broken mussel shell—such a conclusion is contrary to both parties’ arguments. Accordingly, we reverse the trial court’s grant of final summary judgment and remand for further proceedings.

Reversed and remanded.

Warner and Gross, JJ., concur.


source: Caselaw Access Project

author: SHEPHERD, Senior Judge.

license: Public Domain

text:
    Carmen ENCARNACION, Appellant, v. LIFEMARK HOSPITALS OF FLORIDA, etc., et al., Appellees.
    No. 3D15-0834
    District Court of Appeal of Florida, Third District.
    Opinion filed February 1, 2017.

      Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
    Falk, Waas, Hernandez, Cortina, Solomon, & Bonner, P.A., and Glenn Falk, Sr., Scott L. Mendlestein and Richard A. Warren; Bice Cole Law Firm, P.L., and Neil A. Covone, for appellees.
    Before ROTHENBERG and SCALES, JJ., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

Carmen Encarnación appeals from a summary final judgment in a slip-and-fall case she brought against Lifemark Hospitals of Florida, Inc., doing business as Palmetto General Hospital, and the Hospital’s contract cleaning company, Hospital Housekeeping Systems, Inc., for injuries suffered from a fall in the emergency room hallway of the hospital. The thrust of Ms. Encarnacion’s argument to the trial court was that a genuine issue of material fact existed concerning whether the hospital and its housekeeping vendor knew or should have known of the dangerous condition. The trial court found there was no genuine issue of material fact and granted final summary judgment to the hospital and cleaning company. We agree and affirm the decision of the trial court, albeit with a slightly different analysis. A brief summary of the facts of the case are necessary to explain our decision.

FACTS

Ms. Encarnación arrived at Palmetto General Hospital at approximately 4:45 p.m. on March 11, 2011, to assist her elderly mother, who had arrived in the emergency room a few hours earlier after having suffered a stroke. She found her mother still in the emergency room, resting comfortably. A hospital nurse advised Ms. Encarnación that her mother needed to be admitted to the hospital, but that they would have to wait a short time for a bed to come available. After five hours, Ms. Encarnación decided to seek out a nurse to determine the status of their wait. As Ms. Encarnación left the room, she saw a man who she thought was an Emergency Medical Services (EMS) paramedic with a spray bottle in the hallway, cleaning a stretcher. She attempted to walk around the area where the man was cleaning, but slipped and fell due to what she “guess[ed],” was spray liquid on the floor.

Almost two years later, on January 9, 2013, Ms. Encarnación sued the Hospital and soon thereafter joined Hospital Housekeeping Systems. Shortly after suit was filed, Ms. Encarnación submitted a statement of claim to the Risk Management Division of Miami-Dade County in which she stated that the substance she slipped on was the same as that being used by the EMS paramedic. She repeated this assertion in her answers to the hospital’s interrogatories, stating again that she slipped because of a slippery substance which “EMS personnel was using to clean a stretcher in the hallway.”

On July 15, 2013, six months into the lawsuit, Ms. Encarnación became a little less certain about the identity of the person who was cleaning the stretcher, stating the man “may be a rescue.” She also testified there were no signs indicating the floor was wet; that aside from the spray bottle, she did not see any mop bucket, dripping mops, or food service items in the hallway; and the substance on the floor was “oily”, dirty”, and “dark.” About a month later, in a subsequent deposition, Ms. Encarnación asserted that the substance smelled like a cleaning product similar to “Pine Sol,” she did not know how long the substance had been on the floor, and she thought that “because [the man’s] uniform was kind of gray, dark gray, [she assumed] that he was an EMS.”

Both the Hospital and Hospital Housekeeping Systems moved for summary judgment on the ground there was a complete lack of evidence that either the Hospital or Hospital Housekeeping Systems had actual or constructive knowledge of the condition and, based on Ms. Encarna-cion’s answers to interrogatories, it was undisputed that the person using the spray was an EMS paramedic. The Hospital further asserted that it employed reasonable measures to maintain its emergency department in a reasonably safe condition by having its own security personnel police the emergency room area on a regular basis to correct any dangerous condition, and by employing Hospital Housekeeping Systems, which assigned two housekeepers to the emergency department twenty-four hours per day, seven days per week. Absent from the record were cleaning schedules, cleaning logs or employee testimony concerning the extent to which the Hospital’s security personnel or Hospital Housekeeping Systems performed their assigned and contractual tasks. On this record, the trial court granted summary judgment in favor of the Hospital and Hospital Housekeeping Systems, Inc.

STANDARD OF REVIEW

Summary judgment is proper when the pleadings, discovery and affidavits show there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510. Material facts are those which may affect the outcome of the case. Winn-Dixie Stores, Inc. v. Dolgencorp., Inc., 964 So.2d 261, 263-264 (Fla. 4th DCA 2007) (“An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which -might affect the outcome of the case.”) (citing Byrd v. BT Foods, Inc., 948 So.2d 921, 923) (Fla. 4th DCA 2007). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Bishop v. R. J. Reynolds Tobacco Co., 96 So.3d 464, 467 (Fla. 5th DCA 2012) (“Issues of fact are ‘genuine’ only if a reasonable jury, considering the evidence presented, could find for the non-moving party.”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Dreggors v. Wausau Ins. Co., 995 So.2d 547, 549 (Fla. 5th DCA 2008).

ANALYSIS

We apply this standard separately to each defendant.

I. Palmetto General Hospital

“A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Wilson-Greene v. City of Miami, No. 3D14-8094, slip op. at 4, 2017 WL 361995 (Fla. 3d DCA Jan. 25, 2017) (citing Bartsch v. Costello, 170 So.3d 83, 86 (Fla. 4th DCA 2015)). It is undisputed that Ms. Encarnación was a business invitee on the hospital premises and, therefore, the hospital owed her a duty to exercise reasonable care to maintain their premises in a safe condition. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 423 (Fla. 4th DCA 2014). However, where a business invitee slips and falls on a “transitory substance” in a business establishment as occurred here, proof of the breach element of the claim against an owner of the establishment is statutorily constrained by section 768.0755 of the Florida Statutes (2013). The statute reads as follows:

768.0755. Premises liability for transitory foreign substances in a business establishment
(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

(Emphasis added.)

Here, there is no evidence in the record suggesting the existence of the foreign substance on the floor was known to the hospital. In the absence of evidence of actual knowledge, it was incumbent on the plaintiff to come forward with circumstantial evidence that Palmetto General Hospital, in the exercise of ordinary caution, should have known of the condition. In this case, however, the answers to interrogatories and depositions do not establish how long the substance had been on the floor. In fact, if Ms. Encarnacion’s testimony is believed, the liquid was being deposited on the floor by a non-hospital employee at the same time Ms. Encarnación fell. See McCarthy v. Broward College, 164 So.3d 78 (Fla. 4th DCA 2015) (affirming summary judgment for defendant where there was no evidence of how long the substance was on the floor before the fall); Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014) (same); Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011) (same).

Parenthetically, we note Ms. Encarna-cion’s belated testimony that the substance on the floor was “oily,” “dirty” and “dark,” even if true, as we must assume for our purposes here, is insufficient to create a jury issue. For such testimony to create a jury issue, the testimony must be accompanied by a “plus,” namely some additional fact or facts from which a jury can reasonably conclude that the substance was on the floor long enough to have become discolored without assuming other facts, such as the substance, in its original condition, was not “oily,” “dirty” and “dark.” See Wilson-Greene slip op. at 6, 2017 WL 361995.

II. Hospital Housekeeping Systems

The liability of Hospital Housekeeping Systems in this case turns on a slightly different point, its contractually assumed obligations. Wilson-Greene, slip op. at 4, 2017 WL 361995 (“Where a contract exists, ‘a defendant’s liability extends to persons foreseeably injured by his failure to use reasonable care in performance of a contractual promise’ ”) (citing Maryland Maint. Serv., Inc. v. Palmieri, 559 So.2d 74, 76 (Fla. 3d DCA 1990). The cleaning specifications for the Emergency Department of the hospital, insofar as the plaintiff has elected to provide them to us in the record, states: “Emergency department shall be cleaned on a UCR bases, 24-7 and police cleaned, as necessary.” As in Wilson-Greene, Hospital Housekeeping Systems had no duty to constantly patrol or supervise the area where the accident occurred.

For these reasons, we affirm the summary judgment entered in favor of the Hospital and Hospital Housekeeping Systems.

Affirmed.


author: PER CURIAM. BILBREY, J.,

text:
    Ervin J. LEWIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3807
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.

      Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief—Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Ervin J. Lewis, appellant, asserts that the trial court committed per se reversible error when it refused to instruct the jury on the necessarily lesser-included offense of simple battery when the underlying charge was battery within a detention facility. § 784.082(3), Fla. Stat. (2014). We are constrained to reverse pursuant to the Florida Supreme Court’s rulings in State v. Wimberly, 498 So.2d 929 (Fla. 1986), and State v. Abreau, 363 So.2d 1063 (Fla. 1978), which held that the failure to instruct on the next immediate necessarily lesser-included offense is per se reversible error, even though no reasonable jury could have determined that the battery in this case did not take place in a detention facility. We believe the rationale of Wim-berly and Abreau, when applied to the facts of this case, is irreconcilable with the sound reasoning expressed in Galindez v. State, 955 So.2d 517 (Fla. 2007), and Hurst v. State, 202 So.3d 40 (Fla. 2016). In both of those cases, the supreme court held that even though the trial courts’ errors reached constitutional proportions, because there was no reasonable possibility that the errors contributed to the verdict, they could be reviewed under the harmless error standard of review.

Forcing a retrial in this and similar cases, where the undisputed evidence establishes that the greater crime was committed, is a waste of judicial resources, is inconsistent with Florida Supreme Court precedent where the harmless error doctrine has been applied, and cannot be justified on the basis of the jury pardon doctrine.

We, therefore, also certify a question of great public importance concerning whether failure to instruct a jury on the next immediate necessarily lesser-included offense may constitute harmless error where no reasonable jury could have returned a verdict for the lesser-included offense.

I. Facts

In this case, appellant was charged with battery upon a jail visitor or other detainee under sections 784.082 and 784.03, Florida Statutes (2014). Section 784.082(3) results in reclassification of the battery from a misdemeanor to a third-degree felony because of its occurrence within a jail or detention facility.

The evidence is uncontroverted that appellant and the victim were detainees at the time of the battery. In fact, they were cellmates. Therefore, custody status was not an element of contemplation for the jury. The only issue for jury deliberation was whether a battery occurred. Accordingly, appellant’s conviction reflects a specific finding by the jury of satisfaction of the battery elements. Appellant’s request for a new trial, citing Wimberly, requires a complete disregard of the following: 1) the undisputed fact that appellant was an inmate; 2) the undisputed fact that the victim, appellant’s cellmate, was also an inmate; and 3) the fact that the jury was limited in its deliberation to determining whether appellant committed simple battery, as the fact that appellant was an inmate was uncontested. Appellant desires and Wimberly supports an award of a new trial—essentially a second at-bat with the same pitcher, but a different fielding team. This scenario defies logic and irrationally places form over substance.

II. Inconsistency with Supreme Court of Florida’s Precedent

As previously mentioned, the rationale for not applying the harmless error analysis under these circumstances specifically conflicts with the holdings in Galindez and Hurst.

In Galindez, the Florida Supreme Court applied a harmless error analysis to affirm a sentence despite the jury not specifically making a determination of penetration in a lewd assault on a minor charge, explaining that in light of clear and uncontested record evidence, “no reasonable jury would have returned a verdict finding there was no penetration.” Galindez, 955 So.2d at 524. Although the error in Galindez was an Apprendi/Blakely Sixth Amendment violation, the Galindez court applied a harmless error analysis by relying on a case similar to the one at hand that held, “[wjhere the defendant alleged that error regarding a lesser included offense deprived him of a jury pardon, ‘[gjiven the evidence adduced at trial, the error also was harmless, since it is inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses.’ ” Galindez, 955 So.2d at 524 (quoting Delvalle v. State, 653 So.2d 1078, 1079 (Fla. 5th DCA 1995) (citing State v. DiGuilio, 491 So.2d 1129 (Fla. 1986))). Following Galindez, this court has twice requested clarification from the Florida Supreme Court on its implied recession from a strict per se reversible error application in this context of the failure to instruct on a necessarily lesser-included offense. See Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009); Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008). However, review was denied.

Nevertheless, citing Galindez, the Florida Supreme Court recently extended harmless error analysis to the review of death penalty cases. See Hurst v. State, 202 So.3d 40 (Fla. 2016). On remand from the United States Supreme Court with specific instructions to review the violation of Hurst’s Sixth Amendment rights for harmless error, the Florida Supreme Court relied upon Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), in noting “that failure to submit a sentencing factor to the jury in violation of Apprendi, Blakely, and the Sixth Amendment was not structural error that would always result in reversal.” Hurst, 202 So.3d at 67.

Setting out the harmless error analysis pursuant to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and State v. DiGuilio, 491 So.2d 1129 (Fla. 1986), the Florida Supreme Court instructed in Hurst:

The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst, 202 So.3d at 68 (quoting DiGuilio, 491 So.2d at 1138).

We acknowledge that the Florida Supreme Court has on numerous occasions upheld the per se reversible error doctrine in this type of case, in which there was a failure to instruct on the next necessarily lesser-included offense, but judicial inefficiency continues as a result. See Wilcott v. State, 509 So.2d 261, 262 (Fla. 1987) (reversing conviction for unlawfully introducing or possessing contraband upon grounds of a correctional center because trial court refused to provide a jury instruction on simple possession of less than twenty grams of cannabis, even though the only evidence established that the possession did, in fact, occur in the prison and the defendant was an inmate); Wimberly, 498 So.2d 929 (reversing conviction for battery of a law enforcement officer even though uncontroverted evidence at trial established that the defendant was incarcerated at the time of the altercation and that he struck two law enforcement officers). District courts have been constrained to follow supreme court precedent in this area.

The more recent supreme court cases like Galindez and Hurst indicate that the supreme court has recognized the judicial inefficiency created by certain rules of per se reversible error such as the rule in the current case requiring reversal where the jury was not instructed on a necessarily lesser-included offense. Requiring unnecessary retrials under these circumstances strains overburdened judicial resources with little justification. As such, we certify a question of great public importance to the Florida Supreme Court.

III. Not Justified by Jury Pardon Doctrine

As previously stated, the per se reversible error doctrine has been justified on the basis of a possible exercise of a jury pardon. There are a number of reasons that application of this doctrine in this case is unjustified.

First, the United States Constitution does not require a lesser-included offense instruction in non-capital cases. See Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001). In fact, justifying the imposition of a per se reversible error rule based on the theory of jury pardon is inconsistent with federal law that states even in capital cases, lesser-included offenses that are not supported by the evidence do not have to be given. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), In Hopper, a capital case, the United States Supreme Court specifically stated:

[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. ... The federal rule is that a lesser included offense instruction should be given “if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”

Id. at 611-12, 102 S.Ct. 2049 (quoting Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)).

Requiring reversal for failing to give a jury instruction on a necessarily lesser-included offense where no rational jury could have found that the lesser-included offense was applicable (jury pardon theory) is, thus, inconsistent with federal law.

Second, in the wake of Galindez and Hurst, the longstanding conflict of per se reversible error application to necessarily lesser-included offenses is accentuated. The compelling dissenting opinions of Justice Shaw in Wimberly, 498 So.2d at 932, and Wilcott, 509 So.2d at 263; the dissenting opinion of Justice Canady in Haygood v. State, 109 So.3d 735, 746 (Fla. 2013); the concurring, in part, and dissenting, in part, opinion of Justice Polston in Johnson v. State, 53 So.3d 1003, 1013-16 (Fla. 2010); and the concurring opinion in Riley v. State, 25 So.3d 1, 4-6 (Fla. 1st DCA 2008), illustrate the practical calamities resulting from the directives of Wimberly, which “upholds,” often at the exclusion of logic and reason, the jury pardon doctrine. These dissenting and concurring opinions have been embraced by multiple districts that apply, often begrudgingly, the precedent of Wimberly. See, e.g., Franklin v. State, 877 So.2d. 19, 21 (Fla. 4th DCA 2004) (Stone, J., dissenting); Hayes v. State, 564 So.2d 161 (Fla. 2d DCA 1990); Jess v. State, 523 So.2d 1268 (Fla. 5th DCA 1988).

The analyses of Justices Shaw, Canady, and Polston have been further enhanced by the adoption of standardized jury instructions, the purpose of which is to reduce the number of lesser-included offenses. There can be no reconciliation among the jury pardon doctrine, present-day standard jury instructions, and the required oath of jurors. A juror must swear and affirm to “well and truly try the issues between the State of Florida and the defendant and render a true verdict according to the .law and the evidence.” Fla. R. Crim. P. 3.360. Post Wimberly, the jury pardon doctrine has been expanded and stretched to create, on behalf of the defendant, a fundamental right—essentially the availability of a jury nullification. Accordingly, in' navigating their duty to follow the law and to properly consider the evidence, while retaining the option of jury nullification, present day jurors in Florida shoulder an immediate ethical burden and confront obvious conflicts of interest.

Finally, the requirement of per se reversal in this particular case is unjustified because the jury in this case was not prevented from exercising a jury pardon. The jury could have pardoned appellant by returning a verdict of not guilty. The jury simply chose not to do so.

Neither the United States Constitution, the Florida Constitution, the Florida Statutes, nor the Florida Rules of Criminal Procedure support the jury pardon doctrine. Accordingly, the perceived fundamental right to a jury pardon is one of judicial creation. This deontic debate over the jury pardon stems from the preservation of an archaic doctrine (once purposeful and necessary) in a modern legal forum, the result of which is jury conflict of interest, jury instructions laced -with mutually exclusive theory, and subsequent and inevitable judicial inefficiency.

For these reasons, we certify the following as a question of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 So.2d 517 (Fla. 2007), AND HURST V. STATE, 202 So.3d 40 (Fla. 2016), MAY A COURT FIND THAT FAILURE TO INSTRUCT THE JURY ON THE NEXT IMMEDIATE NECESSARILY LESSER-INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR WHERE NO REASONABLE JURY COULD HAVE RETURNED A VERDICT FOR THE LESSER OFFENSE?

Galindez and Hurst document an implied recession by the Florida Supreme Court from Wimberly and strict per se reversible error application. If harmless error analysis is jiow applicable in Florida to death penalty and sentencing, there exists no rational basis for failing to extend such analysis to necessarily lesser-ineluded offense review. A continuation of placing form over substance on the platform of “jury pardon” preservation ignores an evolving procedural rule structure, inherent conflicts of interest, and the promotion and tolerance of judicial wastefulness.

Regardless, because we are constrained to do so by Wimberly and Abreau, we reverse and remand for a new trial.

WOLF and M.K. THOMAS, JJ., CONCUR; BILBREY, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

BILBREY, J.,

Concurring in Part and Dissenting in Part.

I agree that simple battery in violation of section 784.03, Florida Statutes, is a category one (one step removed) lesser included offense of battery on a jail visitor or other detainee in violation of section 784.082, Florida Statutes. Therefore it was per se reversible error to fail “to give a requested instruction on a lesser-included offense only one step removed from that charged.” Johnson v. State, 695 So.2d 787, 788 (Fla. 1st DCA 1997) (citing State v. Abreau, 363 So.2d 1063 (Fla. 1978)).

I write separately because, respectfully, I do not agree that “[tjhere can be no reconciliation among the jury pardon doctrine, present-day standard jury instructions, and the required oath of jurors.” (Maj. Op. 283.). I do not call into question the per se reversible rule in situations like this one where the requested instruction on a one step removed lesser included offense is denied. The per se reversible rule is tied to jury pardons—the inherent power of a jury to acquit a defendant of the charged offense and instead to convict a defendant of a lesser included offense. State v. Estevez, 753 So.2d 1, 4-5 (Fla. 1999), superseded by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006); see Galindez v. State, 955 So.2d 517 (Fla. 2007). The Florida Supreme Court has repeatedly recognized the connection between a jury’s right to pardon a defendant and the need for a trial court to provide a requested instruction on a one step removed lesser offense. See Sanders v. State, 946 So.2d 958 (Fla. 2006); Estevez; State v. Wimberly, 498 So.2d 929 (Fla. 1986); State v. Baker, 456 So.2d 419 (Fla. 1984).

“All political power is inherent in the people.” Art. I, § 1, Fla. Const. The jury in a criminal case represents the people of the State of Florida in determining not only whether the allegations were proven beyond a reasonable doubt but also the justness of a conviction for a particular crime. The jury is allowed to show “mercy or leniency” in exercising the jury pardon power and convicting a defendant of a lesser offense. Sanders, 946 So.2d at 957. The holding in Sanders and the other cases above are consistent with historical role of the jury as a check on the power of government. See Jenny E. Carroll, Nullification as Law, 102 Geo. L.J. 579, 587-88 (2014). As Justice Scalia stated for the Court in United States v. Gaudin, the right to trial by jury “was designed ‘to guard against a spirit of oppression and tyranny on the part of the rulers,’ and ‘was from the very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.’ ” 515 U.S. 506, 510-11, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (quoting 2 J. Story, Commentaries on the Constitution of the .United States 541 n. 2 (4th ed. 1873)).

The right to jury pardons has been criticized as partial jury nullification. Haygood v. State, 109 So.3d 735 (Fla. 2013) (Canady, J.,‘ dissenting). If jury pardons are a subset of jury nullification then the right springs from the common law. The common law of England as of July 4, 1776, remains in force in Florida. §§ 2.01 & 775.01, Fla. Stat. Jury nullifications were used in England and Colonial America in response to politically unpopular prosecutions against religious minorities, libel, and violations of trade restrictions. See Bushel’s Case, Vaughan 135, 124 Eng. Rep. 1006 (C.P. 1670); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, 43 Law & Contemp. Probs. 51, 56-59 (Autumn 1980).

I see no need for this court to call into question a jury’s inherent power to pardon, no matter how speculative it is that the power will be used in a particular case. If it is thought that a jury should not have the power to pardon, I submit any change should come not from the courts but from the people or their representatives in the political branches. See The Federalists No. 78 (Alexander Hamilton) (“The legislature ... prescribes the rules by which the duties and rights of every citizen are to be regulated.”). While the Florida Supreme Court, as stated in Hoffman v. Jones, can change the common law “where great social upheaval dictates,” I respectfully submit that the Court should not abrogate established rights. 280 So.2d 431, 435 (Fla. 1973).

I therefore respectfully dissent from the portion of the majority opinion which questions jury pardons, as well as the decision to certify a question on what in my view is an undisputed fundamental right of a Florida jury.

      . While we question the wisdom of a per se reversible error rule in a case like this, where it is undisputed that the crime took place in a detention facility, we are bound to follow supreme court precedent.

      . See, e.g., Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008) (granting a new trial after conviction of capital sexual battery due to failure of trial judge to provide a jury instruction on simple battery even though no reasonable jury could have found the defendant guilty of simple battery); King v. State, 911 So.2d 857 (Fla. 1st DCA 2005) (granting a new trial for defendant after jury conviction for battery on a law enforcement officer where the trial judge denied request for simple battery instruction after defendant admitted he knew the victim was a law enforcement officer); Brown v. State, 608 So.2d 114 (Fla. 1st DCA 1992) (reversing conviction for battery on a law enforcement officer and granting a new trial due to trial judge failing to give jury instruction on simple battery despite defendant admitting the officer-victims were in full uniform and arrived in police cruisers.); Hayes v. State, 564 So.2d 161 (Fla. 2nd DCA 1990) (granting new trial following jury conviction for attempted first-degree felony-murder, armed robbery, and unarmed robbery on basis that trial court erred in refusing to give jury instruction on necessarily lesser-included offenses of attempted second-degree murder and attempted manslaughter despite the recognition that due to first-degree felony-murder charge that neither of the manslaughter exemptions, justifiable homicide, or excusable homicide theories could possibly apply); Jess v. State, 523 So.2d 1268 (Fla. 5th DCA 1988) (reversing conviction for possession of cannabis upon grounds of a correctional facility due to trial judge’s refusal to give jury instruction on simple possession, not within a correctional institution, even though undisputed evidence confirmed possession occurred while defendant was incarcerated); Dillard v. State, 544 So.2d 329 (Fla. 5th DCA 1989) (granting a new trial due to lack of jury instruction on simple battery as a necessarily lesser-included offense of battery in a county jail or detention facility following a fight with another detainee even though uncontroverted evidence existed that the fight occurred within the county jail while locked inside a holding cell); Cooper v. State, 512 So.2d 1071 (Fla. 1st DCA 1987) (requiring a new trial for failure to give jury instruction on simple possession along with instruction for possession of contraband articles in a county detention facility, even though location of possession was not in dispute).

      . These offenses are also called necessarily included offenses. State v. Baker, 456 So.2d 419, 421 (Fla. 1984); In Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla. 1981). To prove the offense of battery on a jail visitor or other detainee will always require a finding that a defendant committed a battery. § 784.082, Fla. Stat.

      . Unlikely though it may be here, a jury could find in another case that a battery was committed but the defendant was not being detained (unlawfully detained or recently released?) or the victim was not a detainee or visitor (escapee or trespasser?). See Fla. Std. Jury Instr. (Crim.) 8,21. A jury could also exercise its pardon power as discussed below.

      .All of these cases were decided well after the 1967 adoption of rule 3.360, Florida Rules of Criminal Procedure, which sets forth the form of oath required for jurors at trial. Additionally, all of these cases were decided after the adoption of Florida Standard Jury Instruction (Criminal) 3.13, which admonishes jurors to “follow the law spelled out in these instructions” and which instructs ‘‘[tjhere are no other laws that apply to this case.” Nothing in the oath, instructions, or Florida law specifically precludes the exercise of a jury pardon. The Court in Sanders did note that "jury pardons violate the oath jurors must take before trial, as well as the instructions the trial court gives them” but refused to call into question jury pardons. 946 So.2d at 958. If the jury’s oath and instructions conflict with the right of a jury to pardon, I submit that it is the oath and instructions which should yield.

      . I agree with the majority that the federal courts take a different view on lesser included offense instructions. (Maj. Op. 282.). However, Florida courts under our system of federalism are permitted to recognize greater rights. See Traylor v. State, 596 So.2d 957 (Fla. 1992)

      . As noted by the majority, the jury might also find that no conviction was justified in spite of the evidence to the contrary and engage in jury nullification by returning a not guilty verdict, (Maj. Op. 283.). But by allowing a jury pardon, a jury is exercising some level of mercy or leniency while recognizing that a defendant should still be punished to some extent.


text:
    Jorge MORLAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3148
    District Court of Appeal of Florida, Fourth District.
    February 8, 2017

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Jorge Morías was convicted of burglary of a dwelling, resisting arrest without violence, and disturbing a school function. Appellant raises two issues on appeal. First, he maintains that the State failed to establish a critical element of the burglary charge, arguing that neither he nor his accomplices ever “[e]nter[ed] a dwelling, a structure, or a conveyance with the intent to commit an offense therein 810.02(l)(b), Fla. Stat. (2008). Second, Appellant argues that the trial court erred by not suppressing evidence of a “high-speed” car chase. Finding no error in the trial court’s rulings, we affirm.

Background

Appellant, along with two other men, made plans to burglarize a home at random. After casing a particular location and determining that no one was home, they returned to perform the crime. Appellant and one of his accomplices walked from the car to a cemented area in front of the home, characterized by the State as an “attached porch.” The evidence at trial revealed markings consistent with the men attempting to enter the home, but no actual entry into any location other than the outdoor area was achieved. The owner of the home (who had returned to her dwelling after Appellant’s initial visit) observed this activity through her window and called 911. Appellant and his colleague returned to the car and the three men drove away. Soon thereafter, they encountered a police vehicle, precipitating a “high-speed chase.” The driver of the car testified that this chase was initiated based on the “common consensus” in the vehicle that they should run, but he did not testify to anything specific Appellant said or did as part of that consensus. The chase ended when the getaway car collided with another vehicle. The men exited the car and ran in different directions. Appellant was chased on foot through Broward Community College and through a classroom in session, before being apprehended in a stairwell.

The State charged Appellant with burglary of a dwelling, resisting arrest without violence, and disturbing a school function. Before trial, Appellant moved in limine to suppress evidence of the high speed chase as irrelevant to any of the charges against him (the driver of the car, who was charged with the chase itself, was not tried contemporaneously with Appellant). The trial court denied that motion and this evidence was admitted. After the close of the State’s evidence, Appellant moved for a judgment of acquittal on the burglary count, arguing that the State had not shown that the area in question was burglarizable under the statute. That motion was denied. The jury found Appellant guilty of burglary of a dwelling, resisting arrest without violence, and disturbing a school function. He was sentenced to fifteen years in prison for the burglary charge and time served on the remaining charges.

Analysis

A. Burglary of a Dwelling: The Area Entered Was a “Front Porch”

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Fonseca v. State, 956 So.2d 1259, 1261 (Fla. 4th DCA 2007) (quoting Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)). “Further, where the question involves interpretation of a statute, it is subject to de novo review.” Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011) (emphasis omitted).

One commits burglary in Florida by “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein.” § 810.02(l)(b), Fla. Stat. A “dwelling” is defined as “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2), Fla. Stat.

Appellant argues that the location in which he and his accomplice were viewed by the homeowner was not part of a “dwelling” or “structure” and therefore that his motion for judgment of acquittal on the burglary charge should have been granted. Appellant recognizes that the victim identified the area as her “front patio,” but argues that the area was unenclosed and without posts forming a boundary, despite being under an overhanging eave. Appellant relies on Colbert v. State, 78 So.3d 111 (Fla. 1st DCA 2012), for the proposition that this area was not an “attached porch,” and further argues that the lack of “some form of enclosure” should lead to the conclusion that the area at issue was not part of the curtilage of the home. The State responds that the area was “visually set off’ from the rest of the property by small bushes and a large tree, and deems it an “attached porch.” The State also relies on the fact that the victim kept personal items in the area, showing that it was used as a porch rather than part of the broader yard.

We agree with the State: the area at issue constitutes an “attached porch” and, as such, a “dwelling.” United States Supreme Court Justice Potter Stewart famously said of pornography, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). Here, the State submitted photographs of the area in question into the record, and a good starting point to explaining our conclusion that this area is an “attached porch” is a picture of the area at issue, with the hope that this picture is worth one thousand words.

The homeowner’s “front patio” is directly adjacent to and touching the home. It is elevated, thus differentiating it from the rest of the front yard. The eave of the house completely overhangs this “front patio” and, as such, shares a common roof with the home, just as the carport which we deemed an “attached porch” in Medrano v. State, 199 So.3d 413, 416 (Fla. 4th DCA 2016). There are four exit points from this “front patio,” with one leading directly into the home and one blocked by several bushes and a large tree. A third appears in the image to be similarly blocked by large hose reels and yet another bush. This leaves but a single entrance/exit point from the open field into the area in question. The homeowner also kept other personal items on this “front patio.” It would not be a stretch to repeat our holding in Medrano that this area “constituted an extension of the house which shared common notions of security and privacy with the home it was attached to.” Id.

We have no photos of the area at issue in Colbert. However, it was described as “the mulch between the concrete pad and the wall of the garage.” Colbert, 78 So.3d at 112. It was “only partially covered by the balcony and the eave of the garage [and] there was no personal property within the area suggesting it was a logical extension of the dwelling.” Id. at 113. The court concluded the area was “not a logical extension of one’s dwelling in a way that comports with the concept of an ‘attached porch.’ ” Id. at 112.

Here, the area at issue “comports with the concept of an ‘attached porch.’ ” Id. As Appellant entered this attached porch “with the intent to commit an offense therein” the trial court did not err in denying Appellant’s motion for a judgment of acquittal on the charge of burglary.

B. The Trial Court’s Refusal to Suppress Evidence of the High-Speed Car Chase

Appellant argues that the high-speed chase was irrelevant to his charges and therefore should not have been admitted. He does not object to the evidence of the crash, only to the evidence of the chase. Appellant argues that there was no evidence that he encouraged the car’s driver to drive away from the police and thus just being in the car was not sufficient to show consciousness of guilt. Even if it did show that, Appellant argues that the State could have just relied on his fleeing on foot rather than on what he deems to be the more prejudicial evidence of the car chase.

The State responds that evidence of the chase was inextricably intertwined with the crimes charged, and that it was relevant to demonstrating intent, demonstrating that the officer chasing Appellant on foot was executing a legal duty, and showing consciousness of guilt. The State argues that without evidence of the chase, the jury would have heard that Appellant fled from the victim’s home in a car and then, all of a sudden, was running on foot through a college campus. Finally, the State contends that Appellant joined in the “consensus” of fleeing and therefore the chase did show consciousness of guilt.

“[This Court] review[s] trial court decisions on the admissibility of evidence for an abuse of discretion, ‘limited by the rules of evidence.’ ” Washington v. State, 985 So.2d 51, 52 (Fla. 4th DCA 2008) (quoting Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001)).

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2014). The State here argues that the evidence was relevant for four reasons: (1) it fell within the inextricably intertwined doctrine; (2) it showed that Appellant had an intent to resist an officer; (3) it showed that the officer was executing a legal duty; and (4) it showed a consciousness of guilt.

Evidence is inextricably intertwined when it is “necessary to admit the evidence to adequately describe the [crime].” Griffin v. State, 639 So.2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)); see also Ward v. State, 59 So.3d 1220, 1222 (Fla. 4th DCA 2011) (“Evidence is ‘inextricably intertwined’ if it is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).”).

In this case, Appellant committed a burglary, got into a car, was a passenger in a high-speed chase away from police, and ran from the car, through a college campus, after the car crashed. As the. car chase was part of a continuing chain of chronological events, evidence of the chase was relevant and admissible as inextricably intertwined evidence, necessary “to provide an intelligent account of the crime(s) charged.” It was also relevant and admissible as part of the State’s effort to establish Appellant’s consciousness of guilt, in conjunction with the driver’s statement that fleeing the police was a “consensus decision” of the three occupants of the car.

“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice ....”§ 90.403, Fla. Stat. (2014). Appellant concedes that evidence of the crash and ensuing foot chase were appropriately admitted. With these events already in evidence, the evidence of the car chase was not so prejudicial to “substantially outweigh” the relevance of that evidence toward adequately describing the chronology and establishing Appellant’s consciousness of guilt.

Conclusion

The trial court properly denied Appellant’s motion for a judgment of acquittal on the burglary count, as the evidence in the record, including the photographs, establishes that the area entered by Appellant with the intent to commit a crime was an “attached porch.” Moreover, the trial court did not err in failing to exclude evidence of the ear chase from the scene of the burglary, as any prejudice did not substantially outweigh the probative value of that evidence. Accordingly, we affirm the trial court’s decision.

Affirmed.

Warner and Gross, JJ., concur.

      . The exceptions to this rule, and the other methods of committing burglary, are inapplicable in this case.


author: Per Curiam.

text:
    Robert Lee FREY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3339
    District Court of Appeal of Florida, Fourth District.
    February 8, 2017

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Charles v. State, 204 So.3d 63 (Fla. 4th DCA 2016).

Ciklin, C.J., Damoorgian and Gerber, JJ., concur.


author: Ciklin, C.J.

text:
    Celestor GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1867
    District Court of Appeal of Florida, Fourth District.
    February 8, 2017
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, C.J.

Celestor Gregory appeals his convictions and sentences. He alleges numerous errors, but we affirm because his arguments are either unpreserved or without merit, or both. However, we write to address his argument that the trial court fundamentally erred by failing to instract the jury on the justifiable use of deadly force.

Gregory was charged with robbery with a weapon and battery after stealing a bottle of liquor from a liquor store and getting into a physical altercation with the store owner outside of the store. The store owner jumped into Gregory’s car in an effort to detain him until police arrived. Gregory smashed the glass liquor bottle over the store owner’s head. The store owner survived the attack, but sustained a serious cut on his head.

At trial, Gregory’s defense theory centered around his claimed belief that he was being randomly attacked, since the store owner was not wearing a uniform and did not identify himself as the store owner, and that Gregory was merely acting in self-defense. Gregory presented evidence at trial to support this theory, including a videotape of his interview by a detective.

Gregory did not request an instruction on the justifiable use of deadly force and the jury was instructed on the justifiable use of non-deadly force. The jury found Gregory guilty as charged.

On appeal, Gregory argues that the failure to instruct the jury on the justifiable use of deadly force was fundamental error, since the jury may have found that Gregory used deadly force in smashing the store owner over the head with a glass bottle. Although Gregory correctly asserts that he introduced evidence to support giving the deadly force instruction, we disagree with his assertion that this error rises to the level of fundamental error.

“Fundamental error is error which goes to the foundation of the case. Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error.” Sochor v. State, 619 So.2d 285, 290 (Fla. 1993) (internal citation omitted) (finding no fundamental error in failure to instruct on voluntary intoxication defense to felony murder based on kidnapping); see also Alfaro v. State, 837 So.2d 429, 430 (Fla. 4th DCA 2002) (finding no fundamental error in failing to give unrequested “claim of right” instruction in relation to grand theft auto conviction). Justifiable use of deadly force is a defense to robbery and battery, not an essential element of those crimes. In other words, the omitted defense instruction did not go to the foundation of the state’s case. Following the reasoning of Sochor, “[bjecause the complained-of instruction went to [Gregoryj’s defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.” See Sochor, 619 So.2d at 290.

We further note that the case at hand is distinguishable from Shedd v. State, 137 So.3d 456 (Fla. 4th DCA 2014), and Ramirez v. State, 125 So.3d 171 (Fla. 4th DCA 2013). In those cases, this court reversed convictions for possession of and trafficking in controlled substances, respectively, where the court failed to charge the jury with a “prescription” defense. In Ramirez, this court found fundamental error “where a question from the jury should have highlighted the absence of the instruction for the trial court and defense attorney.” Ramirez, 125 So.3d at 173. In both Shedd and Ramirez, this court indicated that the failure to request the prescription defense was ineffective assistance of counsel. Shedd, 137 So.3d at 457; Ramirez, 125 So.3d at 175 n.1. Unlike in Shedd and Ramirez, no jury questions here alerted the trial court to the omission of a justifiable use of deadly force instruction, nor was ineffective assistance of counsel apparent from the face of the record. Thus, “[t]o find fundamental error in this case would place an unrealistic burden on the trial judge concerning trial tactics and strategy that should be left to defense counsel.” Shells v. State, 642 So.2d 1140, 1141 (Fla. 4th DCA 1994).

Consequently, we affirm.

Affirmed.

May and Kuntz, JJ., concur.


author: GROSS, J.

text:
    Ray Eugene SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4658
    District Court of Appeal of Florida, Fourth District.
    February 8, 2017
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s convictions for possession of child pornography. The pornography was contained on a thumb drive. The thumb drive also contained videos, taken by a hidden camera, of young girls undressing and using the bathroom in appellant’s home. In several of these videos, a male torso was observed entering the bathroom and activating a recording device. Appellant’s wife identified the male figure’s shirt and body as that of appellant. The trial judge admitted these videos, finding them relevant to establish appellant’s ownership of the thumb drive.

These videos were relevant to prove a material fact in issue-appellant’s identity as the owner of the child pornography also contained on the thumb drive. See § 90.404(2)(a), Fla. Stat. (2014). The trial judge also determined that the probative value of the evidence was not substantially outweighed by any prejudice to appellant. See § 90.403, Fla. Stat. (2014); Johnson v. State, 112 So.3d 564, 566 (Fla. 4th DCA 2013). We find no error in the admission of this evidence.

On the challenge to the search warrant issue, we affirm on the authority of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and Brachlow v. State, 907 So.2d 626, 629 (Fla. 4th DCA 2005).

Warner and May, JJ., concur.


author: LaROSE, Judge.

text:
    SOLAR DYNAMICS, INC., Appellant, v. BUCHANAN INGERSOLL & ROONEY, P.C., and Christopher E. Paradies, Appellees.
    Case No. 2D15-5728
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2017.

      Roger L. Young of the Law Office of Roger L. Young, P.A., Sarasota, for Appellant
    Mark D. Tinker, Frank H. Gassier, and Scott S. Amitrano of Banker Lopez Gassier, P.A., St. Petersburg; and Hala A. Sandridge of Buchanan Ingersoll & Rooney, P.C., Tampa, for Appellees
   LaROSE, Judge.

Solar Dynamics, Inc. (Solar), appeals the trial court’s order dismissing, without prejudice, its legal malpractice action against Buchanan Ingersoll & Rooney, P.C. (Buchanan), and Christopher E. Paradies. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). After careful review of the record, and with the benefit of oral argument, we affirm.

Introduction

Solar hired Buchanan and Mr. Paradies to seek a patent for Solar’s fastening shade system for playground structures. Allegedly, the issued patent was inadequate to protect Solar’s idea and design from infringement by competitors. In response to Solar’s legal malpractice lawsuit, Buchanan and Mr. Paradies moved to dismiss the complaint. The trial court granted the motion and dismissed the case, concluding that it lacked subject matter jurisdiction. See 28 U.S.C. § 1338(a) (2015) (“No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents .... ”).

Solar argues that the trial court erred. According to Solar, the malpractice claim is a pure state law matter that does not raise a substantial question of federal law. Buchanan and Mr. Paradies insist otherwise. They contend that before any malpractice claim can proceed, a federal court must necessarily decide the scope, validity, or infringement of the patent. Those determinations, they tell us, can only be made in an action by Solar in federal court against an alleged patent infringer. See 35 U.S.C. § 271 (2015) (creating a cause of action for patent infringement). Only against that tableau, they say, can a state court determine whether the lawyers committed malpractice that caused Solar damage. As we will see, Buchanan and Mr. Paradies have the better argument. The trial court correctly found that it lacked subject matter jurisdiction.

Background

Solar retained Mr. Paradies in the spring of 2006 to obtain a patent for its fastening shade system. The United States Patent and Trademark Office issued a patent, ’237 Patent, in January 2008. Shortly thereafter, Solar began negotiations with another company, Playcore, concerning the grant of an exclusive license for Playcore to use, or practice, the patented invention. By the summer of 2008, negotiations stalled. Playcore objected to a proposed license agreement prepared by Mr. Para-dies, claiming that the patent was “too weak.” Playcore proceeded to design and market its own shading system.

After learning that other companies also were selling a similar shade system, Solar sought further legal advice from Duane A. Stewart, III, another Buchanan lawyer. Mr. Stewart advised that “the patent that [Buchanan and Mr. Paradies] had obtained for [Solar] had failed to adequately protect the company’s idea and function, and that the patent provided no protection.”

Without first filing a federal patent infringement suit against any of its competitors, Solar sued Buchanan and Mr. Paradies in state court. They alleged that Buchanan and Mr. Paradies “were negligent in failing to protect [Solar’s] idea and design from infringement, and by failing to properly patent the fastening system.” After the trial court dismissed the case, this appeal ensued.

Standard of Review

“[T]he issue of whether a court has subject matter jurisdiction involves a question of law that is reviewed de novo.” Nissen v. Cortez Moreno, 10 So.3d 1110, 1111 (Fla. 3d DCA 2009) (citing Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4th DCA 2005)); see also Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla. 2000) (“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.”).

Analysis

This case involves the confluence of federal and state law. Specifically, we must determine whether a Florida trial court has subject matter jurisdiction to decide, vel non, issues related to a patent’s scope, validity, or infringement; the resolution of such issues necessarily would form the basis for a legal malpractice action.

The United States Constitution empowers Congress to enact laws relating to patents in order to “promote the Progress of ... useful Arts.” Art. I, § 8, cl. 8, U.S. Const. Indisputably, federal courts exercise exclusive jurisdiction over “any civil action arising under any Act of Congress relating to patents.” § 1338(a); see 28 U.S.C. § 1295(a)(1) (2015) (providing that the United States Court of Appeals for the Federal Circuit possesses exclusive jurisdiction “of an appeal from a final decision of a district court of the United States ... in any civil action arising under ... any Act of Congress relating to patents”). And yet, that jurisdiction does not necessarily extend to “all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U.S. 473, 478, 32 S.Ct. 238, 56 L.Ed. 513 (1912). Finding the line of demarcation, however, is bedeviling. In framing the contours of the “slim category” of cases in which a legal malpractice claim confers § 1338 “arising under” jurisdiction, the jurisprudence resembles a “canvas [that] looks like one that Jackson Pollock got to first.” Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013).

The parties before us rely heavily on Gunn, a legal malpractice claim involving a patent. Of course, each side draws a different conclusion as to how Gunn applies. We are not convinced, however, that Gunn is dispositive. The underlying facts of Gunn are simple. Gunn represented Minton in a federal court patent infringement suit. The federal court ultimately found Minton’s patent invalid. Id. at 1062. Minton then sued Gunn for legal malpractice in a Texas state court. Allegedly, Gunn’s failure to raise a particular argument cost Minton the lawsuit, and his patent. Id. at 1063. The Texas trial court rejected Minton’s argument. On appeal, Minton argued that his legal malpractice claim was based on an alleged error in a patent case; thus, only a federal district court had exclusive jurisdiction over the action under § 1338(a). The intermediate appellate court affirmed. But the Texas Supreme Court reversed, concluding that the case belonged in federal court because the success of Minton’s malpractice claim relied upon a question of federal patent law. The United States Supreme Court reversed, holding that Minton’s state law legal malpractice claim did not “arise under” federal patent law, and, thus, § 1338(a) did not deprive the state court of subject matter jurisdiction over the lawsuit. Id. at 1065.

In deciding whether a federal court must decide a state law legal malpractice claim involving a patent, the Court relied on the test it announced in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Id. The Court observed that federal jurisdiction over such a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Id. (citing Grable, 545 U.S. at 314, 125 S.Ct. 2363). Given Solar’s allegations, if Gunn is our guide, as the parties urge, we conclude that prongs one and two are easily satisfied here. Only prongs three and four, the parties tell us, are relevant in the case before us.

We acknowledge that, generally, in the context of a legal malpractice claim, even if a state court must address patent issues, nothing the state court decides will necessarily set a precedent or affect patent law as a whole. That is because in the “case within a case” framework of legal malpractice claims, an adverse legal determination has already been made against the malpractice plaintiff. Thus, on the record before it, the Supreme Court noted in Gunn that “there is no ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum.’ ” Id. at 1068 (quoting Grable, 545 U.S. at 313, 125 S.Ct. 2363). Whatever happened in Minton’s lawsuit against Gunn, Minton’s patent was, and would continue to be, invalid. Id. at 1067. Apparently, under such circumstances, the Court was reluctant to federalize run-of-the-mill state legal malpractice claims. On the other hand, we must also recognize that questions of a patent’s scope, validity, or infringement are quintessential federal issues arising under federal patent laws. Id. at 1064.

Solar contends that Gunn compels a state court to exercise subject matter jurisdiction over a legal malpractice claim, even though the underlying claim involves patent issues. State courts, in the first instance, are certainly suited to assess the standard of care owed by lawyers to their clients. See id. at 1064 (observing that “indisputably” Minton’s legal malpractice claim “f[ound] its origins in state rather than federal law”). Typically, in a patent-related malpractice claim, resolution of patent issues are incidental to the core issues of duty, causation, and damages. And, as Gunn observed, the patent matter has already been decided adversely to the malpractice plaintiff. For several reasons, however, we conclude that Gunn does not reach as far as Solar would hope.

Notably, unlike Gunn, we are not faced with the question of whether Solar’s legal malpractice claim belongs in federal court. See n.6, supra. Under Gunn, for a typical “case within a case” claim of malpractice, a state court is competent to proceed. Certainly, Gunn rejected the notion that Congress intended to move all state legal malpractice claims related to patents into federal court. Yet, it does not necessarily follow that state courts, in the first instance, have jurisdiction to decide core issues of patent law. After all, Gunn involved a legal malpractice claim that followed on the heels of an unsuccessful federal patent infringement suit. Minton’s legal malpractice action stemmed directly from that suit. Recall that Minton claimed that Gunn committed malpractice by not raising an argument in a federal case concerning the patent’s validity. That alleged failure created the “case” that a state trial court could address in the subsequent legal malpractice case.

In contrast, by proceeding directly with a malpractice case, Solar effectively asks the state trial court to rule in the first instance upon the scope, validity, or infringement of its patent. As framed, Solar’s complaint for malpractice necessarily requires a decision in the state court that the patent was inadequate to protect Solar from infringement by competitors. Solar avoids a critical step; it fails to create the first “case” needed to provide the context for a subsequent legal malpractice claim. And the unfortunate result for federal oversight of patent law, if Solar is correct, is that a state court will make core decisions related to a federally-issued patent. Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, — U.S. —, 136 S.Ct. 1562, 1570, 194 L.Ed.2d 671 (2016) (stating that under Grable, federal courts “typically” have jurisdiction over a state law claim where “a state-law cause of action is ‘brought to enforce’ a duty created [under federal law] because the claim’s very success depends on giving effect to a federal requirement”).

The omission of a first case of infringement is particularly critical to how Gunn applies here. In assessing the substantiality prong of the Grable test, the Supreme Court observed that the “federal [patent] issue carries no ... significance” to the federal system as a whole. 133 S.Ct. at 1066. It bears repeating that the Court reasoned in Gunn that no matter how the state court resolved the malpractice case, the result of the prior federal patent litigation would not change. Id. The “backward-looking nature of a legal malpractice claim,” id. at 1066-67, is completely absent under Solar’s theory. Gunn involved a pri- or determination that Minton’s patent was invalid. Solar presents no such prior determination. See id. at 1067 (“No matter how the state courts resolve that hypothetical ‘case within a case,’ it will not change the real-world result of the prior federal patent litigation. Minton’s patent will remain invalid.” (emphasis added)). Solar presents no “backward-looking” claim. Solar wants a state court, in the first instance, to entangle itself with core concepts of patent law that will ultimately define the merits of its legal malpractice claim. See, e.g., Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36, 38 (Fla. 2009) (recounting the procedural history in which TSE brought a state legal malpractice suit against Larson & Larson following a federal court’s determination that TSE’s patent was invalid).

As noted earlier, federal district courts “have original jurisdiction of any civil action arising under any Act of Congress relating to patents.” § 1338(a). Gunn explained that “Minton’s original patent infringement suit ... arose under federal law .... because it was authorized by 35 U.S.C. §§ 271, 281.” Gunn, 133 S.Ct. at 1064; see also 35 U.S.C. § 282(a) (providing that “[t]he burden of establishing invalidity of d patent or any claim thereof shall rest on the party asserting such invalidity”); Schachel v. Closet Concepts, Inc., 405 So.2d 487, 489 (Fla. 3d DCA 1981) (Ferguson, J.j specially concurring) (“Because, however, the issue of patent validity involves a right which arises under federal law, determination of which was necessary for resolution of the breach of contract issue, jurisdiction lies exclusively in the federal court.”).

In assuaging concerns that state courts’ case-within-a-ease patent rulings would impede development of a uniform body of patent law, Gunn noted that federal courts are not bound by such “hypothetical” state court rulings; federal courts possess “exclusive jurisdiction over actual patent cases.” Gunn, 133 S.Ct. at 1067. But, Solar’s complaint presents no “hypothetical” musing. Before reaching the merits of any malpractice claim, the state trial court will have to construe the claims of the Solar patent, and then assess whether the products of Playcore or any other competitor infringe the patent. These decisions will mark the merits of the malpractice claim. When we look at the proper allocation of authority to address core patent issues, it is readily apparent why Gunn was decided as it was. In Gunn, the issue of patent validity was already decided by a federal court. What remained was a determination by a state court as to whether Minton’s unfortunate result was caused by Gunn’s malpractice, performing below the appropriate standard of care. Only after deciding these core issues could the state trial court assess the merits of the malpractice claim.

Jurisdiction under § 1338(a) applies to all cases in which federal patent law creates the cause of action. Therefore, whether a claim arises under patent law must be determined from what appears in Solar’s complaint. Cf. Boca Burger, Inc. v. Forum, 912 So.2d 561, 568-69 (Fla. 2005) (“[W]hen a defendant asserts [a lack of subject matter] defense in a motion to dismiss, a trial court must determine the issue as a matter of law based only on the well-pleaded allegations in the complaint, assuming the truth of the facts asserted.”). Although Solar’s complaint is carefully couched as a matter of legal malpractice, the complaint necessarily invites the trial court to make initial determinations as to the patent’s scope, validity, or infringement. These issues are best decided in a federal court lawsuit between Solar and an alleged in-fringer. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (holding that § 1338(a) jurisdiction inures when a complaint establishes that “federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims”).

We think Schachel, 405 So.2d at 487-88, offers prudent guidance in assessing the parties’ arguments. There, the patent owner and his exclusive licensee sued an alleged patent infringer in state court, claiming that the infringer breached a settlement agreement reached in earlier federal litigation. The trial court dismissed the action for lack of subject matter jurisdiction. On appeal, the Third District announced the following test:

[I]f the suit is founded on a breach of a right created by the patent laws, even if that right is confirmed by separate agreement, the case arises under the patent laws, and a state court is without subject matter jurisdiction. On the other hand, if the suit is founded on some right falling outside the ambit of the patent laws, then the state court has jurisdiction, even if during the course of the suit the court is called upon to determine questions involving the patent laws.

Id. at 488. Applying this test, the Third District noted that “the only possible way for Closet Concepts to breach the agreement would be to infringe the patent.” Id. Because the settlement agreement neither modified nor added to any right already existent “by virtue of the patent laws ... the complaint alleges nothing other than an action against Closet Concepts for infringement of patent rights” where the patent’s validity and infringement “[w]as the central and sole issue.” Id.; cf. Jacobs Wind Elec. Co. v. Dep’t of Transp., 626 So.2d 1333, 1335 (Fla. 1993) (“[PJreemption does not bar state jurisdiction when the complaint relies on ‘reasons completely unrelated to the provisions or purposes of [the patent laws] why the [plaintiff] may or may not be entitled to the relief it seeks.’ ” (alterations in original) (quoting Christianson, 486 U.S. at 808-09, 108 S.Ct. 2166)).

Similarly, for the tidal court to find that Buchanan and Mr. Paradies committed legal malpractice, Solar must show, first, that the patent was invalid or that its scope was not sufficiently broad to protect Solar from its allegedly infringing competitors. Resolution of a federal patent question, in the first instance, is necessary for Solar’s legal malpractice case to survive. Cf. Law Office of David J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So.2d 962, 966 (Fla. 2007) (“A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client.” (quoting Sec. Nat’l Servicing Corp. v. Law Office of David J. Stern, PA, 916 So.2d 934, 936-37 (Fla. 4th DCA 2005))).

We do not dispute that Gunn expresses solicitude for federalism. 133 S.Ct. at 1067. Yet, we cannot ignore that Solar’s position, if successful, potentially will disrupt federal oversight of patent law. Under Solar’s theory, a state court would be free to rule upon a patent’s scope, validity, or infringement, in the first instance, in a legal malpractice claim. Rather than testing the strength of its patent against an alleged infringer in federal court, Solar attempts to recast such federal issues as legal malpractice claims by attacking the lawyer’s performance. Although under Solar’s regime, the lawyers are possibly on the hook, Solar avoids any risk that its patent will be found invalid or not infringed by a competitor. Solar would skirt federal oversight of its patent. As a broader policy issue, recasting patent issues as malpractice claims poses a risk that otherwise invalid patents will remain inviolate. See § 282(a); R. Regulating Fla. Bar 6-26.2(b). Resting the resolution of core patent issues in a state court disrupts the balance between state and federal courts anticipated by Congress for patent matters. Gunn, 133 S.Ct. at 1067 (“Congress ensured [uniformity in patent law] by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit.”). Because Gunn involved a prior federal court determination of patent invalidity, Gunn presented no real federalism concern.

Conclusion

Solar is not foreclosed from having its day in court. The trial court dismissed the case, without prejudice, anticipating that Solar could pursue an infringement action in federal court. A ruling in that appropriate forum could well tee-up the necessary “case within a case” properly addressed to a state court. We cannot countenance Solar’s efforts to invoke a state court ruling on core federal issues relating to the scope, validity, or infringement of its patent.

Affirmed.

CASANUEVA and MORRIS, JJ, Concur.

      . At all times pertinent to the allegations in Solar’s complaint, Mr. Paradies was a shareholder at Fowler White Boggs, P.A., which later merged with Buchanan before Solar filed its complaint.

      . Solar's fastening shade system consists of a demountable wind-resistant canopy "remov-ably secured over a support structure” and "comprised of hip beams supported by columns mounted on the support structure” in which the "hip beams extend upwardly and inwardly toward an apex.” U.S. Patent No. 7,316,237 (filed Apr. 27, 2006).

      . The trial court did not address Buchanan’s and Mr. Paradies’ alternative theories that the cause of action was not ripe or was time-barred.

      . The facts relevant for this appeal are taken from Solar’s complaint and deemed to be true. See Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006) ("For the purposes of a motion to dismiss ... allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” (quoting Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla. 1983))).

      . Jackson Pollock, a well-known abstract expressionist, pioneered the “drip” technique, in which paint is dripped from sticks, trowels, and knives onto a canvas tacked to a wall or floor. See Jackson Pollock and His Paintings, Jackson Pollock Biography, Paintings, and Quotes, http://www.jackson-pollock.org (last visited November 28, 2016).

      . We do not understand Buchanan and Mr. Paradles to argue that Solar's malpractice claim belongs in federal court. Rather, they urge that any malpractice claim must await an adverse result for Solar in a federal patent infringement suit.

      . Because Solar has pursued no federal court action addressing scope, validity, or infringement, its patent remains presumptively valid. See § 282(a) (“A patent shall be presumed valid.”); R. Regulating Fla. Bar 6-26.2(b) ("The grant of a patent by the [United States Patent and Trademark Office] carries with it the presumption of validity .... ”).


author: LOGUE, J.

text:
    Derrick GRANTLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-173
    District Court of Appeal of Florida, Third District.
    Opinion filed February 8, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LAGOA and LOGUE, JJ., and KLINGENSMITH, Associate Judge.
   LOGUE, J.

Derrick Grantley appeals the revocation of his probation and the resulting sentences for twelve underlying felonies he committed as a juvenile. We affirm without further comment Grantley’s probation revocation, but we reverse and remand for resentencing under the juvenile sentencing legislation enacted in 2014, as required by the Florida Supreme Court’s decision in Kelsey v. State, 206 So.3d 5, 6-11 (Fla. 2016).

At fifteen years old in 1999, Grantley pled guilty to a total of twelve felonies in two related cases: two counts of armed robbery, one count of burglary with an assault, two counts of armed kidnapping, four counts of sexual battery with a deadly weapon, one count of aggravated battery, one count of armed carjacking, and one count of armed burglary of a conveyance with an assault. The trial court sentenced him to thirty-five years’ prison to be followed by fifteen years’ probation.

While serving his prison sentence in 2007, the State moved to revoke Grantley’s probation based on Grantley’s commission of a battery on a Florida Department of Law Enforcement agent in prison. After a series of hearings, the trial court revoked Grantley’s probation and sentenced him to several life sentences based on the underlying offenses. Grantley then filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). His motion, citing to the United States Supreme Court decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), argued that the life sentences were unconstitutional because he was a juvenile at the time he committed the nonhomicide offenses. A successor trial court agreed and resentenced Grantley to two concurrent sentences of fifty years’ prison to be followed by ten years’ probation, and a third concurrent sentence of fifteen years’ prison.

Grantley filed a second motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800. In his motion, Grantley argued that his sentence had to be corrected to reflect that he was entitled to judicial review as required by the juvenile sentencing legislation enacted in 2014 and the Florida Supreme Court’s decision in Henry v. State, 175 So.3d 675 (Fla. 2015). The trial court denied the motion and this appeal timely followed.

In a decision unavailable to the trial court at the time it ruled, the Florida Supreme Court recently held that a defendant whose original sentence violated Graham v. Florida, and who was thereafter resentenced, is entitled to resentencing under the juvenile sentencing legislation codified in Florida Statutes sections 77.082(3)(c) and 921.1402. Kelsey, 206 So.3d at 6-11. Accordingly, we affirm Grantley’s probation revocation but reverse and remand for resentencing in accordance with the Florida Supreme Court’s holdings in Henry and Kelsey.

Affirmed in part; reversed in part; remanded.

      . In accordance with the parties’ suggestion, this Court held this appeal in abeyance pending the Florida Supreme Court’s review of Kelsey v. State, 183 So.3d 439 (Fla. 1st DCA 2015).


author: PER CURIAM.

text:
    Christopher MANSON, Appellant, v. The CITY OF MIAMI GARDENS, etc., et al., Appellees.
    No. 3D15-2579
    District Court of Appeal of Florida, Third District.
    Opinion filed February 8, 2017
    Gyden Law Group, P.A. and Henry G. Gyden (Tampa), for appellant.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA and Michael R. Piper and Christopher J. Stearns (Ft. Lauderdale), for appellee the City of Miami Gardens.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. City of Clearwater v. Williamson, 938 So.2d 985, 989 (Fla. 2d DCA 2006) (“To determine whether probable cause exists in a case, the court must examine the totality of circumstances.”)


text:
    Rogyne O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-602
    District Court of Appeal of Florida, Fourth District.
    February 8, 2017
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We withdraw our previously issued opinion and substitute the following in its place.

We reverse the trial court’s order denying Rogyne O’Neal’s motion to correct his life sentence for a murder he committed as a juvenile in 2001. In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), the Supreme Court held that life sentences (without the possibility of parole) for juvenile homicide offenders were unconstitutional. This court held in Cotto v. State, 141 So.3d 615, 617 (Fla. 4th DCA 2014), and the Florida Supreme Court held in Falcon v. State, 162 So.3d 954, 962 (Fla. 2015), that Miller applies retroactively.

We additionally reverse O’Neal’s sentence of forty-five years’ imprisonment for the robbery he committed as a juvenile. See Kelsey v. State, 206 So.3d 5 (Fla. 2016) (“[A] defendant whose original sentence violated Graham v. Florida, 560 U.S. 48, [130 S.Ct. 2011, 176 L.Ed.2d 825] (2010), and who was subsequently resentenced prior to July 1, 2014, [is] entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida[.]” (first and third alterations added)).

As properly conceded by the state, O’Neal is entitled to a new sentencing hearing.

We find no merit in the remaining issues raised on appeal.

Reversed and remanded.

Ciklin, C.J., Warner and Klingensmith, JJ., concur.


text:
    Elijah Terrell MCCOOL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2220
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017

      Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Elijah Terrell McCool, appeals his sentence for felony battery, arguing that the trial court erred in denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b). We agree with Appellant that his 2016 sentencing scoresheet erroneously included a sixth “prior record” misdemeanor. In doing so, we reject the State’s argument that the error was harmless because the points assessed for the sixth misdemeanor offense were the same as those that should have been assessed for misdemeanor battery as an “additional offense” on the scoresheet. See Sanders v. State, 35 So.3d 864, 869 (Fla. 2010) (noting that the appellant had completed the two-year probationary terms on his third-degree felonies when he violated his probation on other offenses and concluding that the third-degree felonies were not “additional offenses” because they were not pending for sentencing at the violation of probation proceeding); Somps v. State, 183 So.3d 1090, 1092 (Fla. 4th DCA 2015) (“An offense should not be scored as an additional offense following the revocation of a defendant’s probation if the defendant completed his sentence as to that offense before the VOP occurred.”); see also Dennewitz v. State, 192 So.3d 662, 663 (Fla. 2d DCA 2016) (noting that the State conceded that count one could not be counted as “prior record” on the appellant’s score-sheet because count one was not committed before the primary offense and could not be scored as an “additional offense” given that it was not pending before the trial court at the time of the 2013 revocation sentencing).

Based upon the foregoing, we reverse Appellant’s sentence and remand for resentencing based upon a correctly calculated scoresheet. On remand, the trial court should reevaluate the proper amount of jail credit Appellant is entitled to receive. As we have explained, “A defendant is entitled to an award of credit for all time spent in the county jail prior to sentencing in a violation case, which includes all time spent in the county jail prior to the original sentencing plus all time spent in the county jail prior to any subsequent violation sentencings.” Jenkins v. State, 749 So.2d 527, 528 (Fla. 1st DCA 1999); see also Nicholson v. State, 141 So.3d 757, 758 (Fla. 4th DCA 2014) (holding that the appellant was entitled to the 61 days of jail credit previously awarded as a time served sentence as well as any additional time served in jail before the revocation of probation and sentence); Kendrigan v. State, 941 So.2d 529, 529 (Fla. 4th DCA 2006) (“Appellant is entitled to credit for time served in jail from the date of his arrest for the new offenses if the new offenses constituted the basis for the revocation of probation in the instant cases.”).

REVERSED and REMANDED for re-sentencing.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.