author: PER CURIAM. POLSTON, J.,

text:
    Joshua Lee ALTERSBERGER, Appellant, v. STATE of Florida, Appellee. Joshua Lee Altersberger, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC15-628
    No. SC15-1612
    Supreme Court of Florida.
    [April 27, 2017]

      James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Julie A. Morley and Mark S. Gruber, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and C. Suzanne Bech-ard, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

Joshua Lee Altersberger appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habe-as corpus. For the reasons that follow, we vacate the death sentence and remand for a new penalty phase.

I. BACKGROUND

On direct appeal, this Court described the facts as follows:

Late in the morning of January 12, 2007, the [defendant drove to a friend’s home in Highlands County. Also at the home was Quentin Kinder, who was in Florida to avoid arrest for violating his Georgia probation. After drinking and playing videogames, Altersberger left the home with Kinder. Kinder testified that, at this point, Altersberger was not so affected by the alcohol that his speech was impaired but was “buzzing a little bit.”
Later that afternoon, around 3:00 p.m., Altersberger drove with Kinder to a restaurant in Lake Placid in an effort to meet a girl whom he believed to be working there. Upon learning that the girl was not at work, Altersberger drove with Kinder to a nearby convenience store so that he could buy a cigar. As Altersberger and Kinder were walking out of the store, the two noticed a deputy sheriff in a marked patrol car stopped at a red light. Kinder then heard Alters-berger state, as though he was speaking to the deputy, “You better not stop me or I’m going to shoot you.”
Altersberger left the store with Kinder and drove north on Highway 27 out of Lake Placid. Altersberger’s driving was aggressively erratic, and he swerved several times in and out of heavy afternoon traffic. At one point, Altersberger had to swerve in the midst of a lane change in order to avoid striking another car. This attracted the attention of Florida Highway Patrol Sergeant Nick Sottile who had been travelling in the opposite direction and who turned to pursue.
Kinder saw Sergeant Sottile turn around and notified Altersberger. Al-tersberger responded by saying that he was going “to push it,” or speed up to flee. Kinder told Altersberger not to try to flee and also said that, because of his Georgia probation violation, he was going to run from the car once Altersber-ger pulled over. As he was pulling over, Altersberger cut sharply from the left lane across the right lane, cutting off and nearly striking a semi truck. And, as Altersberger pulled off the roadway, he stated to Kinder that he was going to shoot Sergeant Sottile. Kinder told Al-tersberger not to shoot the officer, and then got out of the car and ran into a nearby orange grove.
Intending to complain to Sergeant Sottile about Altersberger’s driving, the semi truck driver pulled over behind the trooper’s patrol car. The truck driver then got out of his truck and walked toward Sergeant Sottile, who ordered him back to his truck. From the elevated cab of his semi truck, the driver was able to observe the events that followed.
Sergeant Sottile approached Alters-berger’s driver’s side window with his hand resting on his gun. Altersberger raised his hands as Sottile approached and kept them raised while he spoke with Sottile for a short time. Sottile, appearing to be more comfortable with the situation, took his hand from his gun. After Sottile took his hand off his gun, Altersberger lowered his hands and pulled a gun. Sergeant Sottile raised his hands and started to back away from Altersberger’s window when Altersber-ger shot him. Sergeant Sottile was hit near his left collar bone and fell backward to the ground. Altersberger then reached out the window of his car to aim his gun at Sergeant Sottile and tried several times to shoot him in the head, but his gun would not fire. Altersberger then rapidly drove away. Sergeant Sot-tile died shortly thereafter as a result of internal bleeding from the gunshot wound.
Altersberger pled guilty to first-degree murder on March 13, 2009. At the penalty phase, the State presented testimony regarding the murder of Sottile. The defense presented laywitness testimony of Altersberger’s mother and aunt, one of his mother’s friends, and the testimony of former teachers and health department employees who remembered Altersberger as a child. These witnesses testified that Altersberger had an impoverished and unstable upbringing and a history of anger problems. They also testified that his mother had very poor parenting skills, did not make good decisions regarding the men that she brought around her children, did not treat or discipline Altersberger appropriately, and did not display affection toward him.
Altersberger also presented the testimony of two mental health experts. The first, Dr. Krop, a forensic psychologist, testified that Altersberger has anger issues that stem from his dysfunctional relationship with his mother and the insecurity caused by her poor parenting and decision-making throughout his childhood. Dr. Krop also explained that, despite his 103 IQ, Altersberger has problems with planning and impulse control and was extremely immature for his age, both socially and developmentally. Dr. Gur, a neuropsychologist who specializes in neuroimaging, testified that the orbital frontal and amygdala regions of Altersberger’s brain are significantly undersized and that such a condition would result in impaired ability to control and regulate emotions and impulses, an impairment that would be exacerbated by drug and alcohol use or abuse. However, Dr. Gur stated that, because he had never met Altersberger and was not familiar with the facts of the case, he could not connect his findings to the crime itself.
The jury recommended the death penalty by a vote of nine to three. After a Spencer[N.1] hearing, the trial court followed the jury’s recommendation and sentenced Altersberger to death. In so doing, the trial court found the following aggravators; (1) the victim was a law enforcement officer engaged in the lawful performance of his official duties (great weight); and (2) the murder was committed in a cold, calculated, and premeditated manner (CCP) without any pretense of moral or legal justification (great weight). The trial court also found the following mitigators: (1) Altersber-ger was 19 years old at the time of the murder (slight weight); (2) Altersber-ger’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (moderate weight);[N.2] (3) the offense was committed in an unsophisticated manner (very, very slight weight); (4) Altersberger was under the influence of alcohol at the time of the offense. (little weight); (5) Altersberger had a long-term history of substance abuse from age 15 (very slight weight); (6) Altersberger was brought up in a dysfunctional family and home environment (moderate weight); (7) Al-tersberger loves and is valued by his family (very slight weight); (8) Alters-berger loved .his grandfather and was devastated by his death (very slight weight); (9) Altersberger was the victim of racial discrimination within his own family (little weight); (10) Altersberger maintained good behavior throughout the proceedings (very slight weight); and (11) Altersberger [pled] guilty and took responsibility for the offense (little weight). In weighing the aggravators and mitigators and determining death to be the appropriate sentence, the trial court specifically stated “that the aggravating circumstances in this case far outweigh the mitigating circumstances” and that “either aggravating circumstance alone would outweigh all of the mitigating circumstances.”
[N.l] Spencer v. State, 615 So.2d 688 (Fla. 1993).
[N.2] The trial court merged the following nonstatutory mitigating circumstances into this one statutory mitigator: (1) Altersberger did not fully develop emotionally; (2) Alters-berger did not fully develop cognitively; (3) Altersberger has brain deficiencies that reduce his ability to control impulse behavior; (4) Alters-berger has brain deficiencies that reduce his capacity to make reasoned decisions; (5) Altersberger suffered significant emotional deprivation while he was growing up that adversely affected his psychological development; and (6) Altersberger’s dysfunctional family life prevented healthy psychological development. The court then explained that it gave each mitigator slight weight, individually, but moderate weight when merged and considered collectively.

Altersberger v. State, 103 So.3d 122, 124-26 (Fla. 2012).

This Court affirmed Altersberger’s conviction and death sentence on direct appeal. Id. at 131. On direct appeal, Alters-berger argued that the trial court erred in finding the CCP aggravator. Id at 126. And this Court also reviewed whether Al-tersberger’s plea was knowingly, intelligently, and voluntarily made and whether his death sentence was proportionate. Id. at 128-31. For preservation purposes, Al-tersberger also argued on direct appeal that “(1) the use of hearsay evidence during the penalty phase violates the Confrontation Clause; (2) Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (3) Florida’s death penalty statute and jury instructions unconstitutionally shift the burden of proof to the defendant to show why death is not the appropriate sentence; (4) the CCP aggravator is unconstitutionally vague and overbroad; (5) victim impact evidence violates defendant’s due process rights; and (6) execution by lethal injection is unconstitutional.” Id. at 126 n.4. This Court “reject[ed] each of these arguments as contrary to this Court’s well established precedent.” Id.

Altersberger filed a motion for postcon-viction relief on November 13, 2013, and filed an amended motion on March 7, 2014, which the trial court denied after holding an evidentiary hearing. Altersberger appeals the trial court’s denial and also petitions this Court for a writ of habeas corpus.

II. POSTCONVICTION MOTION

A. Ineffective Assistance of Trial Counsel

Altersberger argues that trial counsel was ineffective for failing to adequately advise Altersberger, during the time frame between the entry of his guilty plea and the trial court’s sentence of death, about the different legal standard that applies to a motion to withdraw a guilty plea depending on whether the motion is made prior to or after sentencing. However, we affirm the trial court’s denial of this claim.

Following the United States Supreme Court’s decision in Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that two requirements must be met for ineffective assistance of counsel claims to be successful:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).

Regarding the deficiency prong of Strickland, there is a strong presumption that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time,” Id. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

Regarding the prejudice prong of Strickland, “the defendant must show that there is a reasonable probability that, ‘absent the [deficient performance], the fact-finder would have [had] a reasonable doubt respecting guilt.’” Henry v. State, 948 So.2d 609, 617 (Fla. ,2006) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Dennis v. State, 109 So.3d 680, 690 (Fla. 2012).

Florida Rule of Criminal Procedure 3.170(f) provides the legal standard that applies to motions to withdraw plea agreements made prior to sentencing:

The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.

Fla. R. Crim. P. 3.170(f). Under this provision, a trial court has broad discretion in determining motions to withdraw a plea, although it must permit withdrawal upon “good cause.” State v. Partlow, 840 So.2d 1040, 1042 (Fla. 2003).

Rule 3.170(0 provides the standard that applies to motions to withdraw plea agreements made after sentencing:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Fla. R. Crim. P. 3.170(Z). According to this Court’s case law, pursuant to rule 3.170(Z), once a sentence has been imposed, a defendant must demonstrate manifest injustice or prejudice in order to withdraw a guilty plea. Campbell v. State, 125 So.3d 733, 736 (Fla. 2013); Partlow, 840 So.2d at 1042. “[A] court does not enjoy broad discretion as to motions filed after sentencing.” Griffin v. State, 114 So.3d 890, 898 (Fla. 2013).

In this case, Altersberger has not demonstrated deficiency. Regarding Altersber-ger’s plea and including the time period between the entry of his guilty plea and the trial court’s sentence of death, trial counsel discussed "with Altersberger “the importance of prevailing at the penalty phase and had explained to him that entering a plea would be a good strategic decision.” Altersberger, 103 So.3d at 128. The decision to enter a guilty plea was a difficult decision for Altersberger to make, and it took him a while to make the decision to enter a plea. However, as this Court noted on direct appeal, the decision to enter the plea was ultimately made by Altersberger, it was “knowingly, intelligently, and voluntarily made,” Altersberger was not forced or coerced into entering his plea, and he was not promised anything in return for his plea. Id. at 130.

This Court also noted that the trial court, after holding a Nelson hearing on March 11, 2009, denied Altersberger’s motion to discharge his attorneys on the grounds that they were improperly aft tempting to force him to plead guilty “because there was nothing presented to indicate that counsel was ineffective or had performed incompetently.” Id. at 129. After entering the plea on March 13, 2009, and “a lengthy plea colloquy,” the judge inquired even further, and “Altersberger told the judge that he had been fully advised by his attorneys that pleading guilty would be in his best interest.” Id. at 129-30.

One of Altersberger’s trial counsels, Deb Goins, testified at the evidentiary hearing that, to her knowledge, they did not talk to Altersberger about the specific subtleties between filing a motion to withdraw a plea prior to sentencing versus filing a motion to withdraw a plea after sentencing. And trial counsel Peter Mills testified at the evidentiary hearing that he “probably covered the issues with him generally,” but did not get into specifics. Nevertheless, trial counsel’s advice to Altersberger that it was better to wait until after sentencing to move to withdraw his plea was reasonable trial strategy. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000) (“[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”).

Specifically, trial counsel was weighing the decision to wait until after sentencing to withdraw the plea so that their deal with the State to keep out damaging testimony from the penalty phase would not be impacted against filing the motion to withdraw the plea before sentencing where a different standard would apply. As this Court discussed on direct appeal:

Altersberger’s attorneys testified that they knew the prosecution had as many as twenty witnesses who could provide highly damaging testimony as to Alters-berger’s acts and admissions following the shooting and that this testimony would make obtaining a life sentence extremely difficult. They believed, therefore, that the best trial strategy was to agree with the prosecution that Alters-berger would plead guilty in return for the prosecution not calling those witnesses at the penalty phase. They also explained that when Altersberger asked them what his odds of getting a life sentence would be, they told him that they could not guarantee anything, but his chances would greatly improve if he were to enter a plea so as to limit the prosecution’s introduction of evidence at the penalty phase. As to his desire to withdraw his plea prior to sentencing, Altersberger’s attorneys testified that they explained Altersberger’s rights regarding plea withdrawal and advised him against withdrawing the plea but would have filed the motion to withdraw the plea if they had been directed to do so.

Altersberger, 103 So.3d at 129. And in denying Altersberger’s motion to withdraw his plea that was filed after sentencing, the trial court explained that, based on the testimony given by Altersberger and his attorneys, “[i]t is clear that the [defendant in agreement with his attorneys made a tactical decision that it was in his best interest in the hopes of obtaining a life sentence to enter a plea of guilty and proceed directly to the penalty phase.” Id. at 130.

Additionally, Altersberger has not demonstrated prejudice from trial counsel’s decision to advise Altersberger to move to withdraw the plea after sentencing rather than before sentencing and from failing to specifically explain the different standards. After holding a hearing, Altersberger’s motion to withdraw his plea, which was filed after sentencing, was denied. The trial court in this case actually did review Altersberger’s plea and the circumstances surrounding his plea before sentencing when Altersberger filed a motion to dis-chai-ge his attorneys on the grounds that they were improperly attempting to force him to plead guilty. And, at the hearing on this motion, Altersberger also complained about his attorney’s advice regarding the plea. Altersberger cannot show that the trial court would have granted a presen-tence motion to withdraw his plea. Moreover, as this Court’s review of Altersber-ger’s plea on direct appeal demonstrates, Altersberger would not have been able to offer proof that his plea was not knowing, intelligent, and voluntary. See id. at 128-30. Accordingly, Altersberger has failed to demonstrate how he was prejudiced by trial counsel’s advice or lack of advice regarding when to file the motion to withdraw his plea.

Therefore, because Altersberger has failed to establish deficiency and prejudice, we affirm the trial court’s denial of relief.

B. Hurst

Next, we consider whether Alters-berger is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L,Ed.2d 604 (2016). Because the jury recommended the death penalty by a vote of nine to three, we conclude that Altersberger’s death sentence violates Hurst. See Kopsho v. State, 209 So.3d 668, 570 (Fla. 2017). We must then consider whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman[v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] 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 v. State, 202 So.3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 16, 2017),

Because the jury in this case recommended death by a vote of nine to three, “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend a sentence of death.” Id Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Altersberger’s sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentence and remand for a new penalty phase. See Hurst, 202 So.3d at 69.

III. HABEAS PETITION

Altersberger argues that appellate counsel was ineffective for failing to raise a claim on direct appeal regarding the volun-tariness of Altersberger’s guilty plea. In this case, because the conviction for which the death penalty was imposed was the result of Altersberger’s guilty plea, “this Court’s [mandatory] review shifts to the knowing, intelligent, and voluntary nature of that plea.” Barnes v. State, 29 So.3d 1010, 1020 (Fla. 2010) (quoting Tanzi v. State, 964 So.2d 106, 121 (Fla. 2007)). This Court held on direct appeal that “Alters-berger’s plea was knowingly, intelligently, and voluntarily entered.” Altersberger, 103 So.3d at 130. Because this Court actually reviewed this claim on direct appeal, we deny relief. See Wheeler v. State, 124 So.3d 865, 889 (Fla. 2013) (denying habeas relief for claim that appellate counsel were ineffective for failing to make more specific claims regarding victim impact photographs because this Court already reviewed the photographs on direct appeal); Messer v. State, 439 So.2d 875, 879 (Fla. 1983) (“Habeas corpus is not a vehicle for obtaining a second determination of matters previously decided on appeal.”).

IV. CONCLUSION

For the foregoing reasons, we affirm the denial of Altersberger’s postconviction guilt phase claims, deny his guilt phase habeas claim, vacate his death sentence, and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . Altersberger also argues that trial counsel was ineffective during the penalty phase and that there was reversible cumulative error. Because we remand for a new penalty phase, we do not address these claims or the sum-manly denied claims related to the penalty phase.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Because we remand for a new penalty phase, we do not specifically address the penalty phase claim Altersberger raised in his habeas petition.


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: T.L.
    CASE NO.: SC17-741
    Supreme Court of Florida.
    APRIL 27, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and T.L. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the applicant shall:

(a) continue to consult with Robert M. Perovich, M.D., or other licensed mental health provider, at least, quarterly or more frequently as her mental health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by her mental health provider including the taking of any medication in the recommended manner as may be prescribed by her mental health provider;
(c) have her mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the Applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the Applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from her mental health provider stating that the mental health provider will immediately notify The Florida Bar if the Applicant misses a scheduled appointment without prior rescheduling; and
(e)submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), and (d) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1—3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Floiida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for, an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

7. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the Applicant’s practice of law.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9.By, executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
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text:
    Jackson v. State
    1D15-855
    08/09/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Jackson v. State
    1D15-3652
    08/12/2016
   Aff.

Cir. Ct. (Duval)


text:
    Jones v. State
    1D16-1846
    09/14/2016
   Aff.

Cir. Ct. (Santa Rosa)


text:
    Klemm v. State
    1D14-1951
    04/23/2015
   Aff.

Cir. Ct. (Duval)


text:
    Lagi v. State
    1D16-2729
    07/13/2016
   Proh.den.


text:
    Lamar v. W.S. Badcock Corp.
    1D16-835
    08/09/2016
   Aff.

Judge of Comp. Claims


text:
    Lawrence v. State
    1D16-1833
    07/07/2016
   Aff.

Cir. Ct. (Leon)


text:
    Lopez v. State
    1D14-72
    04/23/2015
   Aff.

Cir. Ct. (Duval)


text:
    Lopez v. State
    1D16-1510
    08/03/2016
   Aff.

Cir. Ct. (Duval)


text:
    Manning v. Florida Dept. of Corrections
    1D16-1615
    08/04/2016
   Hab.Corp.den.


text:
    McCormick v. State
    1D14-2579
    04/24/2015
   Aff.

Cir. Ct. (Escam-bia)


text:
    McCutchen v. State
    1D14-3016
    04/14/2015
   Aff.

Cir. Ct. (Gulf)


text:
    Mims v. Mims
    1D15-5141
    08/12/2016
   Aff.

Cir. Ct. (Ala-chua)


text:
    Moultrie v. State
    1D15-1477
    06/15/2016
   Aff.

Cir. Ct. (Duval)


text:
    Murphy v. State
    1D15-3437
    08/22/2016
   Aff.

Cir. Ct. (Duval)


text:
    Murray v. State
    1D16-0495
    05/25/2016
   Aff.

Cir. Ct. (Leon)


text:
    Nobles v. State
    1D16-1503
    08/03/2016
   Aff.

Cir. Ct. (Leon)


text:
    Parker v. State
    1D16-1787
    08/03/2016
   Aff.

Cir. Ct. (Bay)


text:
    Partridge v. State
    1D16-2427
    10/11/2016
   Aff.

Cir. Ct. (Ala-chua)


text:
    Pennrail Capital Corp. v. BBVD Compass Bank
    1D15-4919
    08/09/2016
   Aff.

Cir. Ct (Duval)


text:
    Person v. State
    1D14-3476
    06/16/2015
   Aff.

Cir. Ct. (Duval)


text:
    Pierce v. State
    1D14-4185
    04/14/2015
   Aff.

Cir. Ct. (Bay)


text:
    Ponder v. State
    1D15-0873
    10/13/2016
   Aff.

Cir. Ct. (Leon)


text:
    Potts v. Bank of New York Mellon
    1D14-3823
    04/22/2015
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Pressley v. State
    1D16-2707
    11/03/2016
   Aff.

Cir. Ct, (Escam-bia)


text:
    Sanford v. Cumulus Broadcasting, LLC
    1D15-5117
    08/09/2016
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Shepard v. Bank of America, NA
    1D14-2667
    04/23/2015
   Aff.

Cir. Ct. (Walton)


text:
    Smith v. State
    1D15-1024
    06/19/2015
   Aff.

Cir. Ct. (Escam-bia)


text:
    Squires v. State
    1D16-124
    08/12/2016
   Aff.

Cir. Ct. (Leon)


text:
    State v. Williams
    1D14-2213
    04/23/2015
   Aff.

Cir. Ct. (Clay)


text:
    Stephens v. State
    1D14-1497
    04/13/2015
   Aff.

Cir, Ct. (Duval)


text:
    Stocker v. State
    1D16-1845
    09/14/2016
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Todd v. Dineen
    1D16-3140
    08/12/2016
   Proh.den.


text:
    Van Zant v. State
    1D16-0561
    05/26/2016
   Aff.

Cir. Ct. (Leon)


text:
    Vaughn v. State
    1D13-5766
    04/14/2015
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Vaughn v. State
    1D14-122
    04/14/2015
   Aff.

Cir. Ct. (Okaloosa)


text:
    Vaughn v. State
    1D14-1257
    04/14/2015
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Waters v. State
    1D14-4888
    09/14/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Watkins v. State
    1D15-0058
    04/29/2015
   Aff.

Cir. Ct. (Union)


text:
    Weatherspoon v. State
    1D16-1125
    08/04/2016
   Hab.Corp.den.


text:
    Webster v. State
    1D15-3211
    04/06/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Welch v. Department of Corrections
    1D15-5527
    07/14/2016
   Cert, den.


text:
    Welch v. State
    1D16-0855
    08/04/2016
   Aff.

Cir. Ct. (Levy)


text:
    Wise v. State
    1D15-3233
    08/09/2016
   Aff.

Cir. Ct. (Duval)


text:
    Wooten v. State
    1D15-5024
    08/12/2016
   Aff.

Cir. Ct. (Leon)


text:
    Wyche v. State
    1D16-1494
    08/03/2016
   Aff.

Cir. Ct. (Columbia)


text:
    Zaiser v. Corrigan
    1D15-3738
    08/03/2016
   Aff.

Cir. Ct. (Duval)


text:
    Zammiello v. Secretary, Florida Dept. of Corrections
    1D14-5627
    06/19/2015
   Aff.

Cir. Ct. (Taylor)


text:
    FIFTH DISTRICT
    A.K. v. B.J.Y.
    5D16-1579
    07/29/2016
   Aff.

Cir. Ct. (St. Johns)


text:
    Abentego v. State
    5D15-3562
    06/21/2016
   Aff.

Cir. Ct. (Volu-sia)


text:
    Addison v. State
    5D16-966
    09/20/2016
   Aff.

Cir. Ct. (Citrus)


text:
    B.A.S. v. State
    5D15-3989
    07/19/2016
   Aff.

Cir. Ct. (Orange)


text:
    Bauer v. U.S. Bank Nat. Ass’n
    5D15-2143
    06/21/2016
   Aff.

Cir. Ct. (Lake)


text:
    Bennett v. State
    5D16-0223
    11/14/2016
   Motion gr.


text:
    Beshears v. State
    5D16-437
    06/28/2016
   Aff.

Cir. Ct. (Marion)


text:
    Bourgeois v. State
    5D15-1661
    06/21/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Browder v. Green Tree Servicing, LLC
    5D16-1123
    09/06/2016
   Aff.

Cir. Ct. (Her-nando)


text:
    Brown v. State
    5D15-573
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Burgado v. State
    5D15-4078
    06/21/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Bynoe v. State
    5D16-793
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Cabrera v. State
    5D14-4588
    08/09/2016
   Aff.

Cir. Ct. (Orange)


text:
    Callahan v. State
    5D16-1737
    09/27/2016
   Aff.

Cir. Ct. (Citrus)


text:
    Cebollero v. Nationstar Mortg., LLC
    5D15-3493
    07/12/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Chandler v. State
    5D16-1133
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Clarke v. State
    5D16-825
    09/27/2016
   Aff.

Cir. Ct. (St. Johns)


text:
    Conyers v. State
    5D16-1174
    11/01/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Cornett v. Lingo
    5D15-2121
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Creech v. State
    5D15-1724
    08/09/2016
   Aff.

Cir. Ct. (Lake)


text:
    Cross v. Deutsche Bank Trust Co.
    5D15-171
    07/05/2016
   Aff.

Cir. Ct. (Orange)


text:
    Cyphers v. Bank of America, N.A.
    5D15-1715
    07/05/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Deparedes v. Green Tree Servicing, LLC
    5D15-3412
    10/18/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Destefano v. State
    5D16-2210
    09/27/2016
   Aff.

Cir. Ct. (Osceola)


text:
    Diggs v. State
    5D15-2438
    08/09/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Elberry v. Deutsche Bank Nat. Trust Co.
    5D15-1663
    11/22/2016
   Aff.

Cir. Ct. (Orange)


text:
    English v. State
    5D16-1175
    06/21/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Foster v. State
    5D15-3697
    09/27/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Freeman v. State
    5D16-2564
    11/29/2016
   Aff.

Cir. Ct. (Osceola)


text:
    G.B. v. Department of Children and Families
    5D16-910
    07/05/2016
   Aff.

Cir. Ct. (Seminole)


text:
    George v. State
    5D16-247
    06/28/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Givens v. State
    5D16-1356
    06/21/2016
   Aff.

Cir. Ct. (Lake)


text:
    Gonzalez v. Stern
    5D15-1754
    06/28/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Goodman v. State
    5D16-2297
    11/29/2016
   Aff.

Cir. Ct. (Marion)


text:
    Green v. Department of Revenue ex rel. Williams
    5D16-773
    10/11/2016
   Aff.

Cir. Ct. (Orange)


text:
    Greene v. State
    5D15-2073
    06/07/2016
   Aff.

Cir. Ct. (Marion)


text:
    Greene v. State
    5D15-4207
    08/09/2016
   Aff.

Cir. Ct. (Marion)


text:
    Guinn v. State
    5D15-3788
    06/28/2016
   Aff.

Cir. Ct. (Marion)


text:
    H.P. v. Department of Children
    5D16-520
    07/29/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Hall v. Department of Corrections
    5D15-3724
    08/09/2016
   Aff.

Cir. Ct. (Sumter)


text:
    Harper v. State
    5D16-1672
    06/28/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Harris v. State
    5D16-419
    06/28/2016
   Aff.

Cir. Ct. (Hernando)


text:
    Hayes v. State
    5D15-4393
    08/09/2016
   Aff.

Cir. Ct. (Marion)


text:
    Head v. State
    5D15-2270
    08/09/2016
   Aff.

Cir. Ct. (Marion)


text:
    Hedrick v. State
    5D15-3148
    08/09/2016
   Aff.

Cir. Ct. (Marion)


text:
    Hill v. State
    5D15-3316
    06/14/2016
   Aff.

Cir. Ct. (Orange)


text:
    Holmes v. State
    5D16-8
    06/21/2016
   Aff.

Cir. Ct. (Flagler)


text:
    Jackson v. State
    5D15-3771
    08/09/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Jennings v. State
    5D16-771
    06/28/2016
   Aff.

Cir. Ct. (Lake)


text:
    Johnson v. State
    5D15-3822
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Johnson v. State
    5D16-1366
    06/21/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Johnson v. State
    5D15-3352
    08/09/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Johnston v. State
    5D15-3851
    08/09/2016
   Aff.

Cir. Ct. (Citrus)


text:
    Kimble v. State
    5D16-1008
    06/21/2016
   Aff.

Cir. Ct. (Marion)


text:
    Kirby v. State
    5D16-608
    06/21/2016
   Aff.

Cir. Ct. (Citrus)


text:
    Kolva v. State
    5D16-675
    10/25/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Kronk v. American Media, Inc.
    5D15-1529
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Laboy v. State
    5D16-1791
    06/28/2016
   Aff.

Cir. Ct. (Osceola)


text:
    Lakes of Brookhaven, LLC v. Governing Bd. of St. Johns River Water Management Dist.
    5D15-2771
    07/12/2016
   Aff.

Cir. Ct. (St. Johns)


text:
    Lambert v. State
    5D15-4366
    08/30/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Lanoue v. State
    5D15-4209
    09/27/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Leitschuh v. State
    5D16-1547
    09/27/2016
   Aff.

Cir. Ct. (Orange)


text:
    Leon v. State
    5D15-3657
    07/19/2016
   Aff.

Cir. Ct. (Lake)


text:
    Lewis v. State
    5D14-4236, 5D14-4238
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Lewis v. State
    5D16-2665
    11/29/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Loessin v. Loessin
    5D15-2661
    07/05/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Lyman v. State
    5D15-4098
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    M.M. v. Department of Children and Families
    5D16-2493
    11/03/2016
   Aff.

Cir. Ct. (Orange)


text:
    Martinez v. State
    5D16-509
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Mashburn v. State
    5D16-114
    06/28/2016
   Aff.

Cir. Ct. (St. Johns)


text:
    Mataga v. Middleton
    5D15-2969
    07/05/2016
   Aff.

Cir. Ct. (Flagler)


text:
    McWaters v. State
    5D16-1135
    08/09/2016
   Aff.

Cir. Ct. (Hernando)


text:
    Merrill v. Department of Corrections
    5D16-703
    06/28/2016
   Aff.

Cir. Ct. (Volusia)


text:
    Michael v. HSBC Bank USA, Nat. Ass’n
    5D15-2318
    07/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Osgood v. State
    5D15-3630
    08/09/2016
   Aff.

Cir. Ct. (Seminole)


text:
    P.B. v. Department of Children and Families
    5D16-982
    11/01/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Parker v. State
    5D16-1773
    11/22/2016
   Aff.

Cir. Ct. (Orange)


text:
    Powell v. State
    5D16-740
    09/27/2016
   Aff.

Cir. Ct. (Marion)


text:
    Powers v. State
    5D15-3536
    06/21/2016
   Aff.

Cir. Ct. (Brevard)


text:
    PNC Bank, Nat. Ass’n v. Sampayo
    5D15-834
    08/23/2016
   Aff.

Cir. Ct. (Orange)


text:
    Ramirez v. State
    5D16-1242
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Reed v. State
    5D15-155
    06/21/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Ritchie v. State
    5D15-630
    06/14/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Roberts v. State
    5D16-887
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Robinson v. State
    5D16-614
    07/12/2016
   Aff.

Cir. Ct. (Marion)


text:
    Rodriguez v. State
    5D16-1182
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Rosario v. State
    5D14-4501
    06/28/2016
   Aff.

Cir. Ct. (Osceola)


text:
    Sainez v. State
    5D16-545
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Salls v. State
    5D15-3219
    06/21/2016
   Aff.

Cir. Ct. (Marion)


text:
    Sanders v. State
    5D16-670
    06/28/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Savino v. State
    5D16-974
    06/28/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Schwolsky v. Wells Fargo Bank, N.A.
    5D15-2585
    06/28/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Sigler v. State
    5D15-3084
    06/28/2016
   Aff.

Cir. Ct. (Lake)


text:
    Smith v. State
    5D16-937
    06/21/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Sparrow v. Bank of New York Mellon
    5D15-2782
    07/12/2016
   Aff.

Cir. Ct. (Orange)


text:
    St. Johns Ins. Co. v. Graham
    5D15-3463
    09/20/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Staley v. State
    5D15-2902
    06/21/2016
   Aff.

Cir. Ct. (Marion)


text:
    State v. McClain
    5D15-4386
    06/21/2016
   Aff.

Cir. Ct. (Volusia)


text:
    State v. Young
    5D15-1866
    06/28/2016
   Aff.

Cir. Ct. (Orange)


text:
    Stevenson v. State
    5D16-1927
    11/15/2016
   Aff.

Cir. Ct. (Hernando)


text:
    Sweat v. State
    5D15-1761
    06/28/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Taylor v. State
    5D16-1188
    06/21/2016
   Aff.

Cir. Ct. (Orange)


text:
    Timmons v. State
    5D16-1816
    09/27/2016
   Aff.

Cir. Ct. (Marion)


text:
    Tortora v. Department of Corrections
    5D16-398
    06/28/2016
   Aff.

Cir. Ct. (Hernando)


text:
    Tuttle v. State
    5D16-989
    08/30/2016
   Aff.

Cir. Ct. (Orange)


text:
    Udick v. Harbor Hills Development, L.P.
    5D15-3959
    07/08/2016
   Aff.

Cir. Ct. (Lake)


text:
    Vasquez v. State
    5D16-2222
    10/11/2016
   Aff.

Cir. Ct. (Citrus)


text:
    Vesperman v. State
    5D15-2898
    08/09/2016
   Aff.

Cir. Ct. (Orange)


text:
    Wiley v. State
    5D16-448
    06/28/2016
   Aff.

Cir. Ct. (Brevard)


text:
    Woods v. State
    5D16-1862
    10/25/2016
   Aff.

Cir. Ct. (Orange)


text:
    Wright v. State
    5D15-4066
    06/21/2016
   Aff.

Cir. Ct. (Seminole)


author: Per Curiam.

text:
    Alton D. ROLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3811
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]
    Alton D. Rollins, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Davis v. State, 199 So.3d 546, 552 (Fla. 4th DCA 2016). Cf. Kelsey v. State, 206 So.3d 5, 6 (Fla. 2016) (answering the following certified question, “Is 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, entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida,” in the affirmative).

Gross, Damoorgian and Klingensmith, JJ., concur.


author: Forst, J.

text:
    Scott ISRAEL, in his official capacity as Sheriff of Broward County, Florida, Appellant, v. Anthony COSTANZO, Appellee.
    No. 4D16-2302
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]

      Carmen Rodriguez of Law Offices of Carmen Rodriguez, P.A., Miami, for appellant.
    Walter G. Campbell, Jr. and Kelley B. Stewart of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauderdale, for appel-lee.
   Forst, J.

This appeal involves a trial court’s jurisdiction to vacate an arbitration award. In a literal example of “too late, too little”— because appellee Costanzo’s petition to vacate the award was not filed within the requisite time frame for one of the alleged grounds, and because he has not alleged any facts supporting the second ground that was timely pled—we reverse the trial court’s vacation and remand for the trial court to confirm the award.

Background

The appellee, Anthony Costanzo (“Employee”), was a deputy with the Broward County Sheriff’s Office (“BSO”). He was arrested on evidence tampering charges and was fired. Employee filed a grievance petition pursuant to his collective bargaining agreement and proceeded to arbitration. Approximately one year after his termination, Employee was convicted of one of the criminal charges against him.

Employee requested an indefinite postponement from the arbitrator so that he could appeal his conviction. Although the record suggests that this request was granted for a time, the postponement was apparently no longer in effect in March of 2014. On March 15, 2014, the arbitrator dismissed Employee’s grievance because Employee was a convicted felon and therefore was unable to work as a law enforcement officer.

On December 3, 2014, we released our opinion in Costanzo v. State, 152 So.3d 737 (Fla. 4th DCA 2014), which reversed Employee’s conviction. The State’s motion for rehearing in that case was denied on December 29, 2014, and the mandate issued on January 16, 2015.

On April 13,2015, Employee filed a Petition to Vacate Arbitration Award and for Damages. In the petition, Employee argued that his rights were violated “when BSO refused to continue the arbitration hearing” and that the award should be vacated because “the Arbitrator made rendered [sic] his decision without allowing [Employee] to testify and defend against his wrongful termination.” This latter argument was based on Employee’s Fifth Amendment right not to incriminate himself in his then-ongoing criminal case.

Following a hearing, the trial court granted Employee’s motion, vacated the arbitration award, and ordered that the case be re-arbitrated. The trial court found that there was a “new fact” in play— namely, that Employee was no longer a felon. BSO appealed.

Analysis

This Court reviews orders on a petition to vacate an arbitration award under a mixed standard: facts are reviewed for competent and substantial evidence and legal questions are reviewed de novo. LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 534 (Fla. 4th DCA 2005).

“Absent a timely motion to vacate ... [an arbitration] award, [a] trial court ha[s] no discretion but to confirm the award as rendered.” Broward Cty. Paraprof'l Ass’n v. Sch. Bd. of Broward Cty., 406 So.2d 1252, 1253 (Fla. 4th DCA 1981); see also Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla. 1989) (“Section 682.13(1) sets forth the only grounds upon which an award of an arbitrator ... may be vacated .... ”). “A motion [to vacate] must be filed within 90 days after the movant receives notice of the award .... ” § 682.13(2), Fla. Stat. (2014). The only exception to this rule is when “the movant alleges that the award was procured by corruption, fraud, or other undue means, in which case the motion must be made within 90 days after the ground is known or by the exercise of reasonable care would have been known by the movant.” Id.

The arbitration award in this case (the dismissal) was entered on March 15, 2014, and Employee has not argued that there was any significant delay in his receipt of notice of this award. Employee’s petition to vacate was filed on April 13, 2015—over a year later. Due to Employee’s failure to file the petition to vacate within 90 days of the March 15, 2014 dismissal, his petition was untimely filed unless he can establish that “the award was procured by corruption, fraud, or other undue means.” § 682.13(2). The statute dealing with the vacation of awards specifically allows an award to be vacated because “[a]n arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement ... so as to prejudice substantially the rights of a party.” § 682.13(l)(c). However, this is a separate ground from that of “corruption, fraud, or other undue means,” and it is therefore subject to the 90-day filing rule of section 682.13(2). Thus, to the extent that Employee is attempting to rely on the arbitrator’s refusal to postpone the proceedings during Employee’s criminal appeal, his petition is untimely because it should have been brought within 90 days of March 15, 2014.

Employee therefore argues that the March 15, 2014 dismissal was procured by undue means, which would allow his petition to be filed within 90 days “after the ground is known or by the exercise of reasonable care would have been known.” § 682.13(2). BSO argues that the ground was known upon this Court’s release of the opinion reversing Employee’s conviction on December 3, 2014, and therefore that the 90-day time period expired before Employee’s April 13, 2015 petition. BSO confuses the release of an opinion with the actual legal effect of an opinion. This Court’s reversal of Employee’s conviction did not take effect until the mandate issued on January 16, 2015. See Reed v. State, 565 So.2d 708, 709 (Fla. 5th DCA 1990) (noting “[t]he appellate process is not completed until a mandate is issued.”). Before that date, Employee’s conviction was still in effect. Although Employee may have known that he would soon have his conviction reversed upon the release of our opinion and the denial of the State’s motion for rehearing, he could not have known for certain that he was not a felon until such time as the mandate issued. Employee’s April 13, 2015 petition was therefore timely filed to raise the grounds that the reversal of Employee’s conviction on January 16, 2015 constituted “undue means.”

Although Employee’s petition was timely to raise the grounds of undue means, he has not made the necessary showing to receive relief. “ ‘[U]ndue means’ refers to such matters as ex parte communications or undisclosed relationships between an arbitrator and one of the contestants.” Sorren v. Kumble, 578 So.2d 836, 836 (Fla. 3d DCA 1991). Like the Third District in Sorren, we need not “attempt[ ] a comprehensive definition” of the term “undue means”; we merely hold that the existence of a fact true at the time of the arbitration which later ceases to be true is not within the scope of that definition. Here, the trial court did not err in its determination that, at the time of the hearing, Employee was a convicted felon, but even if the later change in that circumstance were viewed as invalidating the previous determination, the factual error would not be grounds to vacate the order. See Commc’ns Workers of Am. v. Indian River Cty. Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004) (“[Arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts .... ” (emphasis added) (quoting Noriega, 542 So.2d at 1328)). Employee has failed to identify any fact or circumstance that would fall under the definition of “undue means.”

Conclusion

Employee’s petition to vacate was untimely insofar as it raised an objection to the arbitrator’s failure to continue the proceedings, and is timely but without merit on the allegation of the result being procured by undue means. As such, the trial court erred in vacating the arbitration award. We reverse and remand with instructions for the trial court to confirm that award.

Reversed and remanded.

Taylor and Conner, JJ., concur.


text:
    Gerald A. PAUL, as Trustee of The Gerald A. Paul Revocable Trust, and The Gerald A. Paul Revocable Trust, Appellants, v. Gadi AVRAHAMI and Andrew Paul, Appellees.
    No. 4D16-1456
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]

      Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellants.
    Rod Coleman, Boca Raton, for appellee Gadi Avrahami.
   Forst, J.

Appellants Gerald A. Paul, trustee of The Gerald A. Paul Revocable Trust, and The Gerald A. Paul Revocable Trust (“Appellants”) appeal the trial court’s denial of their motion for attorney’s fees under section 57.105(1), Florida Statutes (2015). Appellants’ sole contention on appeal is that appellee Gadi Avrahami (“Appellee”) knew or should have known that his claim for attorney’s fees was not supported by material facts or then-existing law. We agree with Appellants, and reverse and remand for the trial court to grant Appellants’ motion for fees.

Background

The current dispute arises from a securities fraud claim brought by Appellee against the original defendant, Andrew Paul, The trial court entered its Consent Final Judgment in favor of Appellee, finding that Andrew Paul owed him $95,000. Subsequent to this Judgment in a proceedings supplementary, Appellee filed a complaint against Appellants, alleging Andrew Paul fraudulently transferred two motor vehicles to them in order to “hinder, delay, and defraud” creditor Appellee. Appellants were impleaded defendants.

The trial court entered final judgment against Appellants, voiding the fraudulent transfers and all interests that Appellants may have had in the two motor vehicles. Moreover, the trial court ordered that “Gerald Paul, as trustee, The Gerald Paul Revocable Trust and Andrew Paul are jointly and severally liable for the attorney’s fees and costs incurred by [Appellee] in this action. The court reserves jurisdiction to award the amount of fees and costs to be assessed against the three Defendants.”

Following the fraudulent transfer final judgment, Appellee filed a motion for attorney’s fees, where he “move[d] the court for an award of attorneys [sic] fees against Defendants, Gerald A. Paul, The Gerald A. Paul Revocable Trust and Andrew Paul and to tax costs pursuant to Florida Rule of Civil Procedure 1.420.” In response, Appellants served Appellee their own motion for attorney’s fees pursuant to section 57.105, Florida Statutes, wherein they asked Appellee to consent to an amendment of the final judgment and a withdrawal of his request for fees and costs against Appellants. Notably, Appellants cited to statutory and. case law for the proposition that the trial court could not award attorney’s fees against impleaded defendants in proceedings supplementary. Pursuant to the safe-harbor provision of section 57.105(4), Appellants gave Appellee twenty-one days to withdraw the motion. However, Appellee did not. Upon receipt of the email containing the motion, Appel-lee’s counsel replied: “Interesting. Perhaps you should file a 57.105 claim against Judge Barkdull as well. Good luck with that.”

Consequently, after the expiration of the twenty-one day safe harbor period, Appellants filed their section 57.105 motion with the trial court, along with a “Motion for Limited Reconsideration of Final Judgment,” asking the trial court to amend its final judgment to reflect that the court could not award attorney’s fees against impleaded defendants. Once again, Appellants cited to statutory and case law. This time, they explained in greater detail and quoted clear language from two similar cases for why the court could not award fees against impleaded defendants. The trial court denied the motion without explanation and granted Appellee’s motion for attorney’s fees, ordering all three defendants (including Appellants) to pay Ap-pellee $34,614.

Appellants did not give up. They filed a motion for rehearing—-again citing and quoting statutory and case law. This time, the trial court recognized its mistake, granted the motion, and amended the final judgment by setting aside the award of attorney’s fees and costs against Appellants.

Subsequently, the trial court held a hearing on Appellants’ section 57.105 motion for attorney’s fees. At the hearing, Appellants sought compensation, for defending Appellee’s frivolous motion for fees. They again cited to multiple' cases to argue why Appellee should never have filed the motion in the first place, or, at the least, withdrawn it. Appellants’ attorney explained that “[t]here has never been a clearer case of an attorney on the other side that should have conceded error at some point along the way, and that’s what 57.105 is all about.” The trial court then asked Appellee’s attorney whether he opposed the motion, and the attorney merely responded, “[y]es, sir.” However, the attorney provided ho reasons for opposing Appellants’ motion. Ultimately, the trial court denied the motion, explaining it was “clearly arguable” whether Appellee’s motion for fees was frivolous. Appellants now appeal the denial.

Analysis

We review the trial court’s denial of attorney’s fees under section 57.105(1), Florida Statutes, for an abuse of discretion. Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011). To the extent the trial court’s determination on a motion for attorney’s fees is based on an issue of law, our standard of review is de novo. Id.

The trial court abused its discretion in denying Appellants’ motion for attorney’s fees. To begin, section 57.105(1) requires that the trial court “shall” award attorney’s fees (including prejudgment interest) against a party and the party’s attorney if either “knew or should have known that a claim or defense when initially presented ... (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.” § 57.105(1), Fla. Stat. The purpose of sanctions is to deter frivolous pleadings. Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003); see also Klein v. Layne, Inc. of Fla., 453 So.2d 203, 204 (Fla. 4th DCA 1984).

Florida statutory and case law holds that impleaded defendants cannot be liable for attorney’s fees and costs in proceedings supplementary. At the time of the proceedings below, section 56.29, Florida Statutes, which governs proceedings supplementary, stated that “[cjosts for proceedings supplementary shall be taxed against the defendant .... Reasonable attorney’s fees may be taxed against the defendant.” § 56.29(11), Fla. Stat. (2015). A plain reading of the entire but short statute makes it clear that “the defendant” means the judgment debtor. The statute interchangeably uses both phrases in the same sense. In an early case, we construed the phrase “the defendant” to mean the original judgment debtor:

[The proceedings supplementary statute] contains no authority for assessing fees against the implied third party defendant. The statute authorizes fees against “the defendant.” Throughout the statute, use of the term “the defendant” clearly references the judgment debtor. Thus, under rules of statutory construction, we fail to find authority for allowing attorney’s fees otherwise than against the judgment debtor.

Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993).

In Kingston Corp. Group of Florida v. Richard Kleiber Walter Kleiber Partnership, 127 So.3d 802 (Fla. 2d DCA 2013), the judgment creditor alleged that the judgment debtor had fraudulently transferred assets to the impleaded parties in an effort to avoid satisfying the creditor’s judgment—just like in the present case. Id. at 804. The trial court entered final judgment against the impleaded parties, and awarded attorney’s fees against them. Id. The Second District reversed, explaining:

In this appeal, the impleaded parties argue that both final judgments in the proceedings supplementary improperly award attorney’s fees and costs against them. We agree that the impleaded parties are not liable for attorney’s fees and costs in these proceedings supplementary. In such proceedings, attorney’s fees and costs may be awarded only against the original judgment debtor—not against any impleaded parties. See, e.g., Bloco, Inc. v. Porterfield Oil Co., 990 So.2d 578, 580 (Fla. 2d DCA 2008); Gaedeke Holdings, Ltd. v. Mortg. Consultants, Inc., 877 So.2d 824, 826 (Fla. 4th DCA 2004); Dusoe v. Securis Int’l, Inc., 672 So.2d 89, 90 (Fla. 1st DCA 1996); Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993); see also § 56.29(11), Fla. Stat. (2011). Here, the only judgment debtor is KCGF, and the trial court had no lawful authority to award attorney’s fees and costs against any party to these proceedings supplementary other than KCGF.

Id. The Kingston Corp. opinion concluded: “we reverse because attorney’s fees and costs are not legally awardable against the impleaded parties. RKWKP’s [the judgment creditor’s] attorney’s fees and costs incurred in the proceedings supplementary are recoverable only from KCGF, the original judgment debtor.” Id. at 805.

Considering the clear and overwhelming statutory and case law, Appel-lee’s motion for attorney’s fees against Appellants was frivolous. Even assuming Appellee’s mistake in originally filing the motion was innocent, he had no excuse for failing to withdraw it. See Albritton v. Ferrera, 913 So.2d 5, 8 (Fla. 1st DCA 2005) (failing to withdraw a frivolous motion, even one originally justiciable, may subject a party to attorney’s fees). Appellants repeatedly warned Appellee that he could not recover attorney’s fees against impleaded parties. First, they served him a copy of their own motion for attorney’s fees, where they laid out the relevant statutory and case law. However, Appellee and his counsel blatantly disregarded it and mocked the very notion that it could have merit, remarking, “Interesting. Perhaps you should file a 57.105 claim against Judge Barkdull as well. Good luck with that.” Appellants then filed motions for reconsideration and rehearing, where they explained the relevant law in greater detail and even quoted case language. Still, in each instance, Appellee ignored the law, and would do so yet again at a later hearing on Appellants’ motion for fees.

Conclusion

Appellee’s motion for attorney’s fees against Appellants (who were originally impleaded defendants) was without merit and clearly contrary to both statutory and case law. We reverse the trial court’s denial of Appellants’ section 57.105 motion for attorney’s fees, and remand for the trial court to grant the motion. When calculating fees, the court must determine the amount of reasonable fees that Appellants’ counsel incurred in defending Appellee’s frivolous motion for attorney’s fees—and order Appellee’s counsel to pay those fees.

Reversed and remanded.

Taylor and Conner, JJ., concur.

      . Our 1993 interpretation of the proceedings supplementary statute was prescient, as the statute was revised in 2016 to state: "Costs for proceedings supplementary shall be taxed against the judgment debtor .... Reasonable attorney fees may be taxed against the judgment debtor.” § 56.29(8), Fla. Stat. (2016). The Florida Legislature replaced the phrase "the defendant” with "the judgment debtor” to clarify that only the latter would have to pay attorney's fees.

      . We note that Appellee never once in the proceedings below made a good faith argument for why the trial court should modify or reverse the law regarding impleaded parties and attorney's fees. See § 57.105(3)(a), Fla. Stat.

      . Appellee’s counsel, and not Appellee, must pay the attorney’s fees. See § 57.105(3)(c), Fla. Stat. (providing that a trial court cannot award attorney’s fees against a represented party when the frivolous action ”[w]ould not be supported by the application of then-existing law to those material facts”); see also Wells v. Halmac Dev., Inc., 189 So.3d 1015, 1021 (Fla. 3d DCA 2016) ("The fee award shall be taxed solely against counsel representing [appellee] at that time.”); Fla. Houndsmen Ass’n v. State, Fish & Wildlife Conservation Comm’n, 134 So.3d 999, 1001 (Fla. 1st DCA 2012) ("Because our decision is based on the lack of legal, rather than factual, merit, only Appellants' attorneys shall be responsible for paying this award.").


text:
    Jose Raul ARANDA, Appellant, v. Linnette PADILLA, Appellee.
    No. 4D16-1350
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]

      Susan R. Brown of Susan R. Brown, P.A., Plantation, for appellant.
    Donald G. Criscuolo of Donald G. Cris-cuolo, PA, Fort Lauderdale, for appellee.
   Per Curiam.

Appellant, Jose Aranda (“the father”), challenges the final judgment determining paternity and establishing a parenting plan on numerous grounds, three of which we find have merit. We agree with the father that the trial court erred in 1) awarding the appellee (“the mother”) sole parental responsibility without finding that shared parental responsibility would be detrimental to the child; 2) failing to address time-sharing on holidays, special occasions, and extended school breaks; and 3) failing to consider the parties’ respective financial positions in denying the father’s request that both parties bear the burden of travel costs related to timesharing. We otherwise affirm.

We first address the trial court’s award of sole parental responsibility to the mother. Section 61.13(2)(c)2., Florida Statutes (2013), provides that “[tjhe court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” “This requirement applies in paternity actions.” Maslow v. Edwards, 886 So.2d 1027, 1028 (Fla. 5th DCA 2004). The award of sole parental responsibility in the absence of such a finding is reversible error, Schram v. Schram, 932 So.2d 245, 250 (Fla. 4th DCA 2005). “Additionally, utilizing the best interest of the child standard does not obviate the necessity of a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility to a parent.” Maslow, 886 So.2d at 1028; see also Grimaldi v. Grimaldi, 721 So.2d 820, 821-22 (Fla. 4th DCA 1998) (holding that the trial court’s finding that the former wife, due to illness, was not capable of exercising parental responsibility in any meaningful way, and that sole parental responsibility was in the child’s best interest, was “not equivalent to a finding that shared parental responsibility is, in fact, detrimental to the child”).

The final judgment here does not contain the required finding. Further, the trial court did not make such a finding at trial, although it explained that it was awarding the mother sole parental responsibility because the parents had an “unhealthy” relationship and “won’t agree.” This finding is in the vein of a best interest finding, and does not rise to the level of a finding of detriment to the child. Accordingly, we reverse and remand for further proceedings. “On remand, the court may, in its discretion, either take additional evidence or rule on the record presently available.” Schram, 932 So.2d at 250.

The father also argues that the trial court erred in failing to award him any holiday timesharing in the absence of findings justifying no such award. We agree. “Although a court has the power to deny visitation altogether in extreme circumstances, where visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision.” Todd v. Guillaume-Todd, 972 So.2d 1003, 1006 (Fla. 4th DCA 2008); see also Schumaker v. Schumaker, 931 So.2d 271, 274 (Fla. 5th DCA 2006) (stating that it is error for the trial court to leave judgment incomplete by failing to address holiday, special occasion, and extended school break visitation). We reverse and remand for the trial court to either grant holiday, special occasion, and extended school break timesharing or make factual findings justifying the denial of such timesharing. The coui-t should revisit the child support obligation if changes in the timesharing plan make that necessary.

Finally, we agree with the father that the trial court erred in failing to consider the parties’ respective financial positions in denying the father’s request that travel costs associated with timesharing be shared by the parties. “The expense of transporting the minor child for visitation is a childrearing expense like any other,” which “should be shared by the parents in accordance with their financial means.” Drakulich v. Drakulich, 705 So.2d 665, 667 (Fla. 3d DCA 1998). In a case where the father was assigned responsibility for all travel costs because he was the party who relocated, the appellate court reversed, reasoning that the proper test is the consideration of the parties’ financial circumstances. See McKenna v. Fisher, 778 So.2d 498, 499 (Fla. 5th DCA 2001); see also Coons v. Coons, 765 So.2d 167, 174 (Fla. 1st DCA 2000) (finding no error in requiring the father to pay 100% of costs of transporting child where the court considered the parties’ respective financial circumstances and found that the father’s gross annual income was $70,000 and the mother’s was $29,000, and the trial court made a modest downward adjustment in the father’s child support obligation to account for some of the costs of transportation).

Here, there is no indication that the trial court applied the correct test in determining whether the father should be responsible for all of the costs of travel. Instead, the trial court chastised the father for making such a request. We reverse and remand for the trial court to apply the correct test and to revise the child support obligation if necessary.

In summary, we affirm in part, but reverse and remand for the trial court to address sole parental responsibility; holiday, special occasion, and extended school break timesharing; and travel costs associated with timesharing. The trial court should revisit the child support obligation if its findings on remand make that necessary.

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

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


author: Gerber, J.

text:
    STATE of Florida, Appellant, v. Donald RICHARDVILLE, Appellee.
    No. 4D16-2745
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

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

The state appeals from the circuit court’s order granting the defendant’s motion for a downward departure sentence. The state argues that the court’s reasons for departing from the permitted sentencing range, including the defendant’s “ignorance of the law,” were legally insufficient.

We agree that the court erred, as the state has argued. However, the state did not preserve the error. As explained in Banks v. State, 732 So.2d 1065 (Fla. 1999), a court undergoes a two-part process in determining whether to depart from a guidelines sentence:

First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1)....
Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion. ...

Id. at 1067-68 (internal footnotes omitted).

Here, although the state’s appeal argues that the court’s reasons for departing from the permitted sentencing range were legally insufficient (a step 1 argument), the state did not raise a step 1 argument to the court. Instead, the state raised only a step 2 argument to the court:

Your Honor, as you know, as [defense counsel] has pointed out, the standard in a downward departure motion is whether the judge can versus should. Yes, Your Honor, you can depart fi'om the guidelines, but should you? And the State’s position is that no, you should not..

(emphasis added).

Because the state raised only a step 2 argument to the court, the state did not preserve the step 1 error. See § 924.051(3), Fla. Stat. (2016) (“An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.... ”); § 924.051(l)(b), Fla. Stat. (2016) (“‘Preserved’ means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”). The error here does not constitute fundamental error.

Based on the foregoing, we are compelled to affirm the defendant’s downward departure sentence.

Affirmed.

Taylor and Klingensmith, JJ., concur.


author: Forst, J. Levine, J.,

text:
    Alvin C. GAYLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1975
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

      W. Grey Tesh, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Alvin Gayle raises three arguments on appeal regarding his conviction of and sentence for the offense of lewd or lascivious battery. We affirm the trial court on all three issues. Below, we explain our holding regarding Appellant’s argument related to the hearsay nature of an exhibit introduced. We affirm on the other two issues without comment, but specifically note that our holding on Appellant’s ineffective assistance claim is based bn the lack of a definitively clear record at this stage of the proceeding. See Mansfield v. State, 758 So.2d 636, 642 (Fla. 2000). Our affirmance on this issue is without prejudice to Appellant filing a motion under Florida Rule of Criminal Procedure 3.850 and providing evidence in the trial court to support his claim.

Background

Appellant met the victim at a party thrown by Appellant’s niece, the victim’s friend at the time. When the offenses allegedly occurred, the victim was fourteen years old and Appellant was thirty-nine. Following the party at which they met, Appellant text-messaged and called the victim often. Eventually, per the State, their relationship grew sexual.

The victim testified that she and Appellant engaged in sexual relations on multiple occasions. On one particular day, Appellant picked the victim up from school and brought her to her house. After the victim locked the door, Appellant and the victim had sex. The victim’s sister arrived home during this time. She observed Appellant come out of the victim’s bedroom (the victim was in the living room). Appellant claimed to have been in the bathroom. Appellant then left in a hurry.

The victim went to the police station and had a sexual battery evidence kit assembled. At the station, the victim’s phone had an “extraction” performed on it. The data from that extraction was assembled into an “Extraction Report,” which contained a transcript of text messages between Appellant and the victim.

Appellant was charged with lewd or lascivious battery. His defense was that the State failed to prove that he ever had sex with the victim. At trial, the Extraction Report was admitted into evidence with minimal predicate testimony, over Appellant’s hearsay objection. The Report contained text messages dating back to two months before Appellant was caught by the victim’s sister, including one in which Appellant directly stated he was having sex with the victim. This message was highlighted by the State during closing argument, with the State asking the jury, “[wjhat’s more clearer [sic] than that?”

Appellant was found guilty of one count of lewd or lascivious battery and received a minimum mandatory sentence of twenty-five years in prison as a dangerous sexual felony offender. This appeal follows.

Analysis

“[T]he question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006).

“ ‘Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2015). “Except as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2015).

Appellant argues that the Extraction Report was hearsay and that the State failed to lay the necessary foundation for its admission under the business records exception. See § 90.803(6), Fla. Stat. (2015); Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008). The State responds that the Report was not admitted to prove the truth of the matter asserted, making it not hearsay at all, and further that the statements were Appellant’s own, placing them under the party admission exception to hearsay. See § 90.803(18), Fla. Stat. (2015).

On May 19, 2015, Appellant allegedly sent a text message to the victim confirming that he was in a sexual relationship with her. This was clearly “a statement, other than one made by the declarant while testifying.” § 90.801(l)(c). The State, however, argues that this message, as well as the others, was not introduced into evidence with the intent of proving the truth of the matter asserted. See Eugene v. State, 53 So.3d 1104, 1109 (Fla. 4th DCA 2011) (holding that emails were not hearsay because they were not used to prove the truth of the assertions therein). But unlike in Eugene, the State’s closing argument in this case proves otherwise. The State used this statement as part of its attempt to prove that Appellant was having sex with the victim, and re-ferred to the message as the clearest evidence of the very, thing the text asserted. This text message was hearsay.

Although normally inadmissible, hearsay may be admitted when a statutory exception is met. § 90.802-804. The State relies here on the exception found in section 90.803(18)(a), which allows the admission of “[a] party’s own statement” for use against that party. Appellant argues that he did not admit at trial that the text message was sent by him, and therefore that it was not an admission. The State, however, introducéd evidence, through the victim’s testimony, that Appellant was the person who sent the text. Appellant’s argument that he did not send the text may have been appropriate in an attempt to convince the jury the message should not be given much weight, but the victim’s testimony that he in fact sent the message was sufficient to allow its admission under section 90.803(18). See Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001) (affirming a revocation of probation based on the probationer’s own statements which, at the hearing, he denied having made, on the basis that the admissions would have been admissible under section 90.803(18)).

Appellant’s primary argument, however, is not whether his statement was admissible under section 90.803(18), but whether the State was required to establish the business records exception to hearsay in order to introduce the Extraction Report. See § 90.803(6), Fla. Stat. (2015). It appears that Appellant is attempting to argue (although he does not explicitly state as much) that the Report was its own level of hearsay requiring a second exception. See § 90.805, Fla. Stat. (2015) (dealing with “[hjearsay within hearsay”); Henderson v. State, 135 So.3d 472, 476-78 (Fla. 2d DCA 2014) (explaining the concept of double hearsay).

Per the State’s witness at trial, the Extraction Report was generated through the following procedure:

What we do is we basically extract the data from the memory on the phone. It could be a logical or physical extraction. And then the data is then parsed out and reconstructed to see what information was on the phone, which often times includes active and deleted data on the phone.

For hearsay purposes, a “statement” is “[a]n oral or written assertion” made by a “declarant.” § 90.801(l)(a)-(e), Fla. Stat. (2015). A “declarant” is “a person who makes a statement.” § 90.801(l)(b), Fla. Stat, (2015). The word “person” includes “individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations,” but does not include machines. § 1.01(3), Fla. Stat. (2015).

The text message at issue was a statement, as it was made by a person (Appellant). On the other hand, the Extraction Report was not a “statement” made by a “person”—it was created by a machine that extracted the messages from the victim’s phone. It therefore was not hearsay and, thus, a second hearsay exception was not required. See Adam Wolfson, Note, “Electronic Fingerprints”: Doing Away with the Conception of Computer-Generated Records as Hearsay, 104 MICH. L. REV. 151,157-58 (2005) (noting that a minority of states “distinguish between computer-stored records and computer-generated records, and maintain that computer-generated records cannot be hearsay because they are ‘not dependent upon the observations and reporting of a human declarant.’ ” (quoting State v. Armstead, 432 So.2d 837, 839-10 (La. 1983))).

As described by the State’s, witness, the Report is much more akin to a photograph than it is to a written assertion by an individual or business. The Report shows the state of a part of the world at a given moment in time—the contents of the victim’s cell phone—in the same way that a photograph provides a record of the visible light directly in front of the lens at a given time. Neither situation involves any interpretation or assertion. See Symonette v. State, 100 So.3d 180, 183-84 (Fla. 4th DCA 2012) (holding that photographs of a phone were “genuinely what the State claims— pictures,” without suggesting that pictures were themselves a statement); see also A.J.M. v. State, 182 So.3d 895, 896 (Fla. 4th DCA 2016) (after determining that the words on a sign outside a restaurant amounted to a non-hearsay verbal act, this Court affirmed the admission of a photograph of the sign without consideration of whether the photograph itself would be hearsay). Accordingly, we hold that the Extraction Report generated by the computer program in this case is not a “statement” made by a “declarant,” and therefore is not hearsay.

Our holding on this issue conforms to the decision of the Florida Supreme Court in Jean-Philippe v. State, 123 So.3d 1071 (Fla. 2013). In that ease, the court affirmed the admission of “text messages downloaded from [a] phone by law enforcement officers.” Id. at 1078, However, the main issue in Jean-Philippe was the purpose of the introduction of the messages—whether it was to prove the truth of the matter asserted. Id. at 1080. The court held that most of the messages were not admitted for this purpose, and that those that were hearsay were subject to the party admission exception under section 90.803(18)(a). Jean-Philippe, 123 So.3d at 1080. Whether the issue of double-hearsay was argued at all, or whether the court simply dismissed that argument without discussion, is unclear, as is the exact form the downloaded messages took. We therefore do not rely solely upon Jearir-Philippe in reaching our holding today. Nonetheless, the court’s conclusion that the text messages downloaded by law enforcement were not hearsay is supportive of our more detailed analysis.

Conclusion

Because the Extraction Report was not hearsay, and because the State established an exception to the hearsay that was Appellant’s own statements, we affirm the trial court’s admission of the Report. As noted above, we affirm without discussion the other issues presented in Appellant’s appeal, though we do so without prejudice to Appellant raising a Rule 3.850 claim of ineffective assistance of counsel with respect to Appellant’s rejection of a plea offered by the State.

Affirmed.

Ciklin, C.J., concurs.

Levine, J., concurs specially with opinion.

Levine, J.,

concurring specially.

I concur in affirmance, but for different reasons. As such, I write separately to expound on those reasons.

I find that the trial court did not “clear[ly] abuse [its] discretion” in admitting the extraction report as nonhearsay evidence. Jones v. State, 963 So.2d 180, 185 (Fla. 2007). The extraction report consisted of an exchange of text messages between appellant and the victim over a period of time. The state did not offer the extraction report to show the truth of the matter asserted within the text messages. Rather, the state offered the extraction report to establish a timeframe and show the existence of a relationship between appellant and the victim.

The state’s reference to one of the text messages in closing argument for a non-hearsay purpose does not change the fact that the trial court properly admitted the extraction report as nonhearsay evidence. Moreover, appellant did not objeet to the state’s reference to this particular text message during closing argument. Assuming this issue is preserved, I agree that this text message was admissible under the hearsay exception for a statement by a party-opponent. See § 90.803(18)(a), Fla. Stat.

I find it unnecessary to consider whether the extraction report “was its own level of hearsay requiring a second exception” for two reasons. First, because the text messages comprising the extraction report were not hearsay, it follows then that the extraction report itself was not hearsay. See State v. Espiritu, 176 P.3d 885, 891 (Haw. 2008) (holding that the victim could testify about statements which were admissible under the hearsay exception for party admissions because “if evidence is hearsay admissible under an exception to the rule against hearsay, then testimony about such evidence is admissible”). Second, the majority acknowledges that it only “appears that Appellant is attempting to argue” the issue and that he did not “explicitly state as much.” It is well-established that “it is not the function of the Court to rebrief an appeal, We basically work within the framework of the briefs although, admittedly, there are instances where errors are so glaring or fundamental that a court will adjudicate them on its own initiative in its original opinion.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). This case does not present an instance of any error, no less “glaring or fundamental” error, necessitating deviation from the briefs.

Finally, while I agree in affirming appellant’s ineffective assistance of counsel claim, I make no comment on the viability of any rule 3.850 motion.

      . The State does not attempt to argue that it did lay the proper foundation for the business records exception to hearsay, and the transcript confirms that the required testimony for that exception was not elicited.

      . This holding should not be read as a comment on any challenge to the authenticity of a report similar to that generated in this case. Counsel here did not challenge the Report's authenticity by, for example, claiming that the Report was not an accurate representation of the data on the phone. We therefore only address the hearsay question and express no opinion on the merits of an authenticity challenge.

      . Thus, it is questionable whether any argument with respect to the hearsay nature of this text message is even preserved for review. See Brooks v. State, 762 So.2d 879, 898 (Fla. 2000).


author: PER CURIAM.

text:
    Richard E. ZALDIVAR, P.A., Appellant, v. Francisco PRIETO, Domino’s Pizza and Sedgwick CMS, Appellees.
    No. 1D15-2322.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2016.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Albert Marro-quin of Richard E. Zaldivar, P.A., Miami, for Appellant.
    Clinton C. Lyons, Jr. of Moran, Kidd, Lyons, Johnson, P.A., Orlando, for Appel-lees.
   PER CURIAM.

The court having received the September 6, 2016, order of the Supreme Court of Florida quashing this court’s opinion of September 30, 2015, and remanding the matter for reconsideration upon application of Castellanos v. Next Door Co., 192 So.3d 431 (Fla.2016), and finding that reversal is warranted in light of that opinion, the order of the Judge of Compensation Claims is REVERSED and this case is REMANDED for proceedings consistent with that opinion.

REVERSED and REMANDED.

ROBERTS, C.J., MAKAR and JAY, JJ„ concur.


text:
    STATE of Florida, Petitioner, v. Johan QUINONES, Respondent.
    Case No. 5D16-4292
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 24, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Petitioner.
    J. Edwin Mills and Frank J. Bankowitz, Orlando, for Respondent.
   PER CURIAM.

We grant Petitioner’s alternative application for a writ of certiorari to quash the trial court’s December 14, 2016, order granting Respondent’s motion to strike the State’s death penalty notice, filed in Orange County case number 2014-CF-008536. Although the Florida Supreme Court held in Hurst v. State, 202 So.3d 40, 43 (Fla. 2016), that the amended statutory death penalty scheme is constitutionally infirm due to the lack of a requirement that the jury’s recommendation be unanimous, we agree with Petitioner that the trial court should have severed the offending component of the statute. In reaching this conclusion, we manifest our agreement with Petitioner’s succinct argument:

[Sjubsection (2)(c) can be severed from § 921.141, Florida Statutes, leaving intact the legislative intent of providing a constitutional procedure for imposition of the death penalty in appropriate cases. Absent the specific language of subsection (2)(c), the statute requires the jury to make a recommendation for life or death. Pursuant to the judicial obligation to construe the statute in a constitutional manner, trial judges should ensure that all jury findings issued in the application of the death penalty are unanimous. This result is consistent with the Florida Supreme Court’s determination that the statute’s jury findings provisions as to the existence and sufficiency of the aggravating factors and that the aggravating factors outweigh the mitigating circumstances must be construed in a constitutional manner (requiring unanimity) so as to preserve the statute’s viability. The absence of a legislative mandate on the nature of the jury vote can be easily cured through accurate jury instructions and simple interrogatories. It does not require any substantive rewriting of the law.
Furthermore, an unconstitutional provision of a statute can and should be severed from the remainder when the taint of the illegal provision has not infected the entire enactment. Schmitt v. State, 590 So.2d 404, 414 (Fla. 1991). In this case, the provision declared unconstitutional does not taint the remainder of § 921.141(2) such that the entire statute must fail.

In our view, this statute presents a classic case where severance is appropriate under the four-part test adopted by the Florida Supreme Court in Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828, 830 (Fla. 1962). First, the unconstitutional provisions can be separated from the valid provisions. Second, the legislative purpose of preserving Florida’s death penalty can be accomplished without the offending provisions. Third, the “good and the bad” features are not so inseparable that the legislature would not have passed the good without the bad. Finally, a complete act remains intact without the offending provisions. Because the requirement for a unanimous jury verdict is derived from our constitution, the constitution itself provides the missing element of a completed procedure for determining when a death sentence may be imposed.

We certify the following question to the Florida Supreme Court as one of great public importance:

CAN AND SHOULD SUBSECTION 921.141(2), FLORIDA STATUTES, BE STRICKEN SO THAT THE REMAINING PORTIONS OF THE STATUTE ARE EFFECTUATED CONSISTENT WITH THE INTENT OF THE LEGISLATURE AND THE UNITED STATES AND FLORIDA CONSTITUTIONS?

PETITION GRANTED; ORDER QUASHED; QUESTION CERTIFIED.

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