author: EDWARDS, J.

text:
    Birdie M. VARNEDORE, M.D., Petitioner, v. Todd E. COPELAND, Esquire, o/b/o and as trustee for Kyonda Hackshaw and Guardian Ad Litem for K.C.F. and J.L.S., Minors, Respondents. Edgardo M. Rodriguez, M.D., Petitioner, v. Todd E. Copeland, Esquire, o/b/o and as trustee for Kyonda Hackshaw and Guardian Ad Litem for K.C.F. and J.L.S., Minors, Respondents.
    Case No. 5D16-1831, Case No. 5D16-1879
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017

      Christian P. Trowbridge, Craig S. Foels, and Eric P. Gibbs, of Estes, Ingram, Foels & Gibbs, P.A., Orlando, for Birdie M. Varnedore, M.D., Petitioner.
    T’anjuiming A. Marz, and Patrick H. Telan, of Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for Edgardo M. Rodriguez, M.D., Petitioner.
    Carlos R. Diez-Arguelles, of Diez-Arg-uelles, &'Tejedor, P.A., Orlando, and Susan W. Fox, and Heather M. Kolinsky, of Fox & Loquasto, P.A., Orlando, for Respondents.
   EDWARDS, J.

Claims for punitive damages can have significant, multi-faceted impacts on litigation and litigants. The Florida Legislature enacted statutory thresholds and Florida’s Supreme Court adopted complementary procedures that govern the proof and pleadings required to pursue punitive damages. The statute and rule cast the trial court in the role of gatekeeper. Here, the Petitioners and the defendants below, Dr. Rodriguez and Dr. Varnedore, petition this court for a writ of certiorari to quash the trial court’s order permitting Respondent, Todd Copeland on behalf of and as trustee for Kyonda Haekshaw and her children, to amend the medical malpractice complaint by adding claims for punitive damages against the Petitioners.

Respondent moved to amend his complaint to assert claims for punitive damages, but did not attach a copy of the proposed amended complaint to his motion. Petitioners objected to the lack of the proposed complaint. Respondent served an evidentiary proffer in advance of the hearing, but also made additional, oral eviden-tiary proffers during the hearing over Petitioners’ objections. At the conclusion of the five and a half hour hearing, the trial court announced that it was granting Respondent’s motion to amend as to certain defendants and denying it as to others. The trial court, however, did not provide a basis for its rulings in its oral pronouncement or in its later written order. For the reasons discussed below, we find that the trial court departed from the essential requirements of law. The writ of certiorari is granted and the case is remanded for further proceedings.

Certiorari review

A writ of certiorari will issue if the trial court departed from the essential requirements of the law, the departure resulted in material injury to the petitioner, and the injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file a pleading asserting a claim for punitive damages in a civil action are enumerated in section 768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190.

Section 768.72(1) provides that defendants in civil actions shall be free from claims of punitive damages and related financial discovery unless the claimant makes “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2015). The subsection further provides that a “claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.” Id. Rule 1.190(a) and (f) describe the procedural requirements for amending a complaint to seek a claim for punitive damages. Parties have a substantive right “not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisite showing under the statute has been made to the trial court.” Estate of Despain v. Avante Grp., Inc., 900 So.2d 637, 641 (Fla. 5th DCA 2005) (citing Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla. 1996); Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995)).

Accordingly, certiorari review is available to determine whether the trial court complied with all applicable requirements and analysis before granting a motion to amend pleadings to assert claims for punitive damages. See Globe Newspaper, 658 So.2d at 520; Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016); Munroe Reg’l Health Sys., Inc. v. Estate of Gonzales, 795 So.2d 1133, 1134 (Fla. 5th DCA 2001). Given the nature of the applicable statute and rule, the court must consider both the pleading component and the evidentiary component of each motion to amend to assert punitive damage claims. Henn v. Sandler, 589 So.2d 1334, 1335-36 (Fla. 4th DCA 1991).

Pleading component of motion to add punitive damages

The only basis for awarding punitive damages against individual defendants, such as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla. Stat. (2015). In this case, Respondent relies on claims of gross negligence to justify recovery of punitive damages. “Gross negligence means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. at § 768.72(2)(b) (internal quotation marks omitted).

As previously stated, a party wishing to pursue punitive damages must first file a motion seeking leave of court to file an amended complaint and then make “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla. R. Civ. P. 1.190(f).

In this case, Respondent filed a motion to amend his pleadings to seek punitive damages; however, he did not attach a proposed amended complaint to his motion, nor did he file the proposed amended complaint prior to the hearing on his motion to amend. Pursuant to rule 1.190(a), “[i]f a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion.” Fla. R. Civ. P. 1.190(a). Moving to amend without attaching a copy of the proposed amended pleading is insufficient. See Taylor v. City of Lake Worth, 964 So.2d 248, 244 (Fla. 4th DCA 2007) (holding that the rule 1.190(a) requirement of attaching a proposed amended pleading to the motion to amend is mandatory).

Respondent argues that rule 1.190(f) does not require a plaintiff to attach a proposed amended complaint to its motion. The requirement of rule 1.190(a), however, was adopted by the Florida Supreme Court in the same opinion in which it created rule 1.190(f). Amends. to the Fla. R. of Civ. P. (Two Year Cycle), 858 So.2d 1013, 1013-14 (Fla. 2003) (“Therefore, to make [Florida Rules of Civil Procedure] 1.070(j) and 1.190(a) consistent and avoid confusion, we adopt the proposed corresponding amendment to rule 1.190(a), which requires a party that files a motion to amend a pleading to attach the proposed amended pleading.”). In the same opinion, the Florida Supreme Court amended rule 1.190 to add subdivision (f), in order to ensure that the parties opposing motions to amend a pleading to assert a claim for punitive damages had adequate prehearing notice of the record evidence and proffered evidence relied on by the plaintiff in the motion to amend. Id. at 1014-15. Thus, filing the proposed amended complaint with the motion to amend is an essential legal requirement of moving to amend to add claims for punitive damages.

In order to perform its function as a gatekeeper, the trial court must understand the specific claim proposed by the plaintiff that may justify an award of punitive damages. “Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are.” Bank of Am. Nat’l Ass’n v. Asbury, 165 So.3d 808, 809 (Fla 2d DCA 2015). Thus, when entertaining a motion to amend in order to add a claim for punitive damages, the trial court must first consider whether the proposed amended complaint actually sets forth a claim that the defendants’ conduct was grossly negligent, as defined by statute. Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim.

Because there was no proposed amended complaint on file at the time of the hearing, the trial court repeatedly asked Respondent to state what claims he was making and against whom he was making such claims. At some point during the hearing, Respondent finally provided a copy of a proposed amended complaint. Hearings on motions to add punitive damages can be complex and contentious. It is patently unfair to allow Respondent’s failure to comply with the requirements of rule 1.190(a) to force Petitioners’ counsel to choose whether to read the just-provided proposed amended complaint or to actively participate in the hearing.

Respondent’s unexplained failure to file the proposed complaint resulted in confusion, made it unreasonably difficult for Petitioners to prepare and argue their position, and hampered the trial court in its effort to fulfill its role as gatekeeper. We find that the trial court departed from the essential requirements of the law when it heard and ruled on Respondent’s motion to amend when Respondent did not attach a proposed amended complaint to its motion as required by rule 1.190(a). We grant the writ, quash the order, and remand for further proceedings.

Evidentiary component of motion to add punitive damages

Because Respondent, on remand, may choose to file another motion to amend, we believe it would be helpful to the parties and to the trial court to complete our analysis of the additional requirements of section 768.72 and rule 1.190(f).

If the proposed amended complaint contains sufficient allegations of gross negligence, the trial court must next consider whether plaintiff has established a reasonable factual basis for its punitive damage claims. The factual basis relied on by the moving party may consist of evidence of record, proffered evidence, or both. Fla. R. Civ. P. 1.190(f). During the hearing in this case, Respondent sometimes relied on record evidence, such as deposition testimony and, at other times, Respondent relied on witness testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers, arguing that the proffers did not comply with the requirements of section 768.72 or rule 1.190(f). Petitioners also asserted that some of the proffers put forward new liability theories, which were not alleged in the operative, second amended complaint, and not discussed in any expert witnesses’ depositions.

Respondent’s unexplained failure to file the proposed complaint resulted in confusion, made it unreasonably difficult for Petitioners to prepare and argue their position, and hampered the trial court in its effort to fulfill its role as gatekeeper. We find that the trial court departed from the essential requirements of the law when it heard and ruled on Respondent’s motion to amend when Respondent did not attach a proposed amended complaint to its motion as required by rule 1.190(a). We grant the writ, quash the order, and remand for further proceedings.

Evidentiary component of motion to add punitive damages

Because Respondent, on remand, may choose to file another motion to amend, we believe it would be helpful to the parties and to the trial court to complete our analysis of the additional requirements of section 768.72 and rule 1.190(f).

If the proposed amended complaint contains sufficient allegations of gross negligence, the trial court must next consider whether plaintiff has established a reasonable factual basis for its punitive damage claims. The factual basis relied on by the moving party may consist of evidence of record, proffered evidence, or both. Fla. R. Civ. P. 1.190(f). During the hearing in this case, Respondent sometimes relied on record evidence, such as deposition testimony and, at other times, Respondent relied on witness testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers, arguing that the proffers did not comply with the requirements of section 768.72 or rule 1.190(f). Petitioners also asserted that some of the proffers put forward new liability theories, which were not alleged in the operative, second amended complaint, and not discussed in any expert witnesses’ depositions.

When the Florida Supreme Court adopted rule 1.190(f), it referred to Beverly Health and Rehabilitation Services, Inc. v. Meeks, 778 So.2d 322 (Fla. 2d DCA 2000). Amendments, 858 So.2d at 1014. The plaintiff in Meeks filed a bare bones motion, completely lacking any factual bases, to amend its pleading to add punitive damage claims against the defendant nursing home. 778 So.2d at 323. On the day of the healing, the plaintiff filed 200 pages of exhibits supporting its motion to amend. Id. at 324. The trial court went forward with the hearing, but advised defense counsel that it could have additional time to respond if needed; however, no such request was made. Id. at 324. The Second District Court of Appeal suggested that “to require written proffers to be filed a reasonable time prior to future hearings would appear to be a reasonable method to assure that such hearings do satisfy the spirit of the statute [section 768.72] and the requirements of due process.” Id. at 325. By adopting rule 1.190(f), the Florida Supreme Court reinforced “the committee’s intent of requiring the motion and the supporting evidence or proffer to be served on all parties at least twenty days before the hearing.” Amendments, 858 So.2d at 1014.

A similar requirement to file documents in advance of a hearing is found in Florida Rule of Civil Procedure 1.510(c). Rule 1.510(c) requires the party moving for summary judgment to serve its notice identifying and/or attaching record evidence at least twenty days prior to the hearing. Fla. R. Civ. P. 1510(c). The opposing party must serve its disclosure of opposing record evidence at least five days prior to the hearing. Fla. R. Civ. P. 1.510(c). Neither the movant nor the opponent may rely upon any evidence, even if already on file, unless it was identified in its timely filed notice. State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So.3d 970, 974 (Fla. 4th DCA 2016). “Determination of the appropriateness of the motion is better facilitated when issues and evidence aré clearly identified in advance of the hearing on the motion.” Id.

We conclude that the term “proffer” for purposes of rule 1.190(f) refers only to timely filed documents and excludes oral representations of additional evidence made during the hearing. Thus, the trial court cannot properly consider plaintiffs counsel’s oral or other proffers of evidence which are first presented during the hearing. Counsel, however, is free to suggest inferences that may be drawn from the timely filed evidence and proffers. After all, the decision of whether to grant the motion to add punitive damages will be based, at least in part, upon the trial court’s determination of whether a reasonable jury could infer from the evidence and proffer that a defendant’s conduct amounted to reckless or careless indifference to the plaintiffs life or safety. Because the trial court did not state its basis for granting the motion, we cannot determine to what extent the trial court improperly relied on Respondent’s untimely and inappropriate oral proffers. Petion v. State, 48 So.3d 726, 735 (Fla. 2010). Respondent additionally has not attempted to prove that the court’s error was harmless. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014). The 'trial court departed from the essential requirements of the law by overruling Petitioners’ objections and permitting Respondent to make inappropriate oral proffers. For this additional reason, we grant the writ, quash the order, and remand for further proceedings.

Stating basis for granting motion to amend

Petitioners further assert that the trial court erred by failing to state the bases upon which it granted Respondent’s motion to assert punitive damages. Because punitive damages may only be pursued after the trial court finds the plaintiff has met or exceeded the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is required to make an affirmative finding that plaintiff has made a “reasonable showing by evidence,” which would provide a “reasonable evidentiary basis for recovering such damages” if the motion to amend is granted. SAP Am. Inc. v. Royal Flowers, Inc., 187 So.3d 946, 947 (Fla. 3d DCA 2016); see also Petri Positive Pest Control, Inc. v. CCM Condo. Ass’n, 174 So.3d 1122, 1122 (Fla. 4th DCA 2015); Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230, 235-36 (Fla. 3d DCA 2010); Henn, 589 So.2d at 1335. We agree that when granting a motion to amend to add punitive damages, the trial court must make the aforementioned affirmative finding. However, because we are remanding this case to the trial court for further proceedings, we will not at this time address Petitioners’ additional, related argument that the trial court must make detailed factual findings.

PETITION GRANTED, ORDER QUASHED, REMANDED FOR FURTHER PROCEEDINGS.

SAWAYA and LAMBERT, JJ., concur.

      . Although the underlying claims of medical negligence are different as to each Petitioner, they arise out of related diagnosis and treatment, and the principles governing the process of amending pleadings to assert punitive damage apply uniformly. We have thus, sua sponte, consolidated the two cases for the purpose of discussing and resolving them in a single opinion.

      . In Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 642-44 (Fla. 5th DCA 2005), we held that appellate courts would review, de novo, a trial court’s finding that a section 768.72(1) reasonable basis exists for asserting punitive damages. Because the evidence of record and proffered evidence upon which plaintiff relies must be timely filed in advance of the hearing, the trial court does not have a superior vantage point to this court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Michael MOODY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4380
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joseph Moody (the defendant) appeals the final order entered by the trial court summarily denying, with prejudice, his motion to withdraw his nolo contendere plea. Because the defendant was entitled to receive an evidentiary hearing on his motion, we reverse.

The defendant was charged with three counts of sexual battery and one count of lewd or lascivious molestation. He engaged in discovery, and the State’s notice of discovery stated that there was no Brady evidence. The defendant entered a plea of nolo contendere to reduced charges: two counts of child abuse. The trial court entered judgment accordingly and then sentenced the defendant to consecutive terms of five years’ probation.

The day after sentencing, the State filed a supplemental discovery document in the defendant’s case. The document stated that the State had received Brady information in connection with a Citrus County Sheriffs Office investigation of a child abuse claim involving the victim and her stepmother. The stepmother was an identified State’s witness in the defendant’s case. The abuse call was received eight months earlier.

The defendant filed a motion to withdraw his plea, arguing that his plea was entered involuntarily because, had he known about the Brady evidence, he would not have entered a plea, but rather, he would have proceeded to trial. The motion included the following allegations:

The sum and substance of the Brady evidence provided by the State after sentencing is that the Citrus County Sheriffs Office (CCSO) received information regarding child abuse committed by [the stepmother] upon the minor child who was the alleged victim in the instant case. The call was received by CCSO in February 2015 but not pursued until the day after sentencing. The Defense was told that this action was intentional on the part of CCSO as they knew it would to a lesser extent materially impact the trial testimony of [the stepmother] and to a greater extent materially impact the case against the Defendant in general. ... Had the defense been provided with the Brady information in February 2015, investigation and discovery by the defense regarding this issue would have been explored in detail with all material witnesses beginning with the alleged minor child victim to and including law enforcement. The evidence that may have been obtained had CCSO properly and timely investigated the child abuse claim against [the stepmother] may have significantly impacted the defense’s case in a positive way. In intentionally delaying an investigation into a material witness for the state alleged to have herself abused the alleged victim until after sentencing of the Defendant is clearly prejudicial to the Defendant and rises to the level of manifest injustice. ... The Defendant has maintained his innocence throughout these and the dependency proceedings. The Defendant did not have the benefit of this evidence prior to entering his plea and had the Defendant been aware of this evidence, he would not have entered the plea, rather he would have proceeded to trial. Thus, the no contest plea the Defendant entered was not voluntary.

Upon review, the trial court entered an order summarily denying the motion, ruling that the “motion is facially insufficient in that he has failed to allege a legally cognizable reason for withdrawal of his plea.” This appeal timely followed.

The defendant contends that the trial court reversibly erred in denying his motion to withdraw his plea without first conducting an evidentiary hearing thereon. We agree.

“The denial of a motion to withdraw plea is reviewed under the abuse of discretion standard.” Griffin v. State, 114 So.3d 890, 897 (Fla. 2013).

Here, the defendant’s motion asserted that his plea had been entered involuntarily due to the State’s alleged Brady violation, a recognized ground under Florida Rule of Criminal Procedure 9.140. See Newsome v. State, 877 So.2d 938 (Fla. 2d DCA 2004) (holding that defendant’s motion to withdraw his guilty plea was facially sufficient to warrant the grant of an evidentiary hearing, as his motion alleged that his plea had been involuntarily entered). Accordingly, the trial court erred in ruling that the defendant’s motion was facially insufficient.

Additionally, because the defendant filed his motion after he had been sentenced, in seeking to withdraw his plea, he had the burden of proving that “a manifest injustice has occurred and that withdrawal is necessary to correct the manifest injustice.” Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA 2009). The defendant sufficiently alleged his claim of manifest injustice so as to be entitled to receive an evidentiary hearing because our Supreme Court has held that the entry of an involuntary plea constitutes a manifest injustice. State v. Partlow, 840 So.2d 1040, 1044 (Fla. 2003).

Lastly, the Supreme Court has held that the “adjudication of a claim that a plea was involuntary ... requires an evidentiary hearing during which the trial court can consider evidence beyond the trial record that is relevant to whether the defendant adequately understood his legal rights and voluntarily entered the plea.” Johnson v. State, 60 So.3d 1045, 1051 (Fla. 2011); accord Hernandez v. State, 204 So.3d 128, 131 (Fla. 4th DCA 2016). Accordingly, on remand, the trial court must conduct an evidentiary hearing before denying the defendant’s motion.

The trial court’s order denying the defendant’s motion to withdraw his nolo con-tendere plea is reversed and this matter remanded for an evidentiary hearing.

REVERSED AND REMANDED.

PALMER, ORFINGER and WALLIS, JJ., concur.

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: EDWARDS, J. PALMER, J.,

text:
    Marco Antonio RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3622
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017

      James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

Marco Rodriguez appeals his convictions for lewd or lascivious molestation. The jury may have reached the proper verdict, given the evidence in this case. However, there is no doubt that Appellant was denied a fair trial due to egregious prosecu-torial misconduct, compounded by defense counsel’s unexplained failure to object. We are compelled to vacate Appellant’s conviction and remand for retrial. Appellant’s retrial is not just a “do over.” The alleged victim, a child, will once again have to tell her story of familial sexual molestation to a judge and a second jury, while Appellant will once again be publicly accused and tried for sexually molesting a five-year-old. All of the witnesses’ normal schedules will be interrupted as they stand by to testify and attend court. Other parties’ trials will be delayed because this case must be tried twice. Confidence in our judicial system suffers when prosecutors are permitted to utilize clearly inappropriate closing arguments to convict. Winning at all costs is too high a price to be paid by too many.

A criminal trial is supposed to be conducted in a neutral arena in which both sides offer evidence for the jury’s consideration. Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999). “Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Merck v. State, 975 So.2d 1054, 1061 (Fla. 2007). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983). If the prosecutor makes clearly inappropriate comments during closing argument, defense counsel has an affirmative duty to contemporaneously object, both to preserve the issue for appellate review, and, for an equally or perhaps more important reason, to give the trial judge a chance to remedy the potential harm by instructing the jury and avoiding its repetition in that trial. Merck, 975 So.2d at 1061; Dorsey v. State, 942 So.2d 983, 986 (Fla. 5th DCA 2006). “[T]he trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments.” Edwards, 428 So.2d at 359 (citations omitted).

Appellant was on trial with regard to alleged specific incidents of sexual molestation or abuse committed when the victim was five years old. The charged criminal conduct concerned allegations of Appellant forcing the five-year-old victim to masturbate him after they watched an inappropriate animated movie and additional claims that he used a vibrator to massage the five-year-old’s vagina. These allegations of abuse came to light approximately ten years later, when Appellant engaged in admittedly inappropriate conduct. Specifically, Appellant confessed to massaging the teen’s breasts for about two minutes while they were in a St. Augustine motel room with the victim’s sleeping mother. Appellant was accused of other inappropriate sexually-oriented touching at the motel, but denied these accusations. The next morning, when the mother awoke from her medication-influenced sleep, the victim told her what had taken place the night before and what took place when the victim was five.

The evidence of the charged crimes, namely what allegedly happened when the victim was five, included the victim’s and mother’s testimony, pretrial statements made to police by Appellant, recorded phone calls between the victim’s mother and Appellant, and police testimony. The testimony and statements were not limited to what occurred to the victim at age five; instead, there was an extensive amount of Williams rule evidence about the events that took place ten years later at the St. Augustine motel.

The prosecutor’s initial closing argument fell within the anticipated and acceptable scope of reviewing and commenting on the evidence, the relative credibility of the victim and Appellant, and a discussion of the verdict form. However, during his rebuttal closing argument the prosecutor strayed from acceptable zealous representation, repeatedly crossed far beyond the outer limits of acceptable argument, while venturing deeply into the realm of prosecutorial misconduct. Unfortunately and inexplicably, defense counsel sat silently by, never objecting, during the repeated improper comments made by the prosecutor. Thus, we must consider whether the prosecutor’s inappropriate remarks made during closing amount to fundamental error. “Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Crew v. State, 146 So.3d 101, 108 (Fla. 5th DCA 2014) (quoting Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993)).

The prosecutor repeatedly referred to Appellant as a “pedophile.” Inflammatory labels used by a prosecutor to describe the defendant are improper invitations for the jury to return its verdict based on something other than the evidence and applicable law. Vituperative or pejorative characterizations of a defendant are not acceptable tools to be employed by the prosecutor. Crew, 146 So.3d at 109. Calling Appellant a pedophile was “clearly designed to inflame the prejudices of the jury and constituted an impermissible general attack on [his] character.” Petruschke v. State, 125 So.3d 274, 280 (Fla. 4th DCA 2013). Referring to a defendant as a “pedophile” suggests the defendant has engaged in repeated sexual abuse of minors and raises a profiling argument, namely that because he is a pedophile, it is likely that he would sexually molest children, including this specific victim. Hudson v. State, 820 So.2d 1070, 1072 (Fla. 5th DCA 2002). Here, the prosecutor referred to Appellant as a pedophile seven times, providing far greater potential for unfair prejudice than a single such reference might, as in the cases relied upon by the State. See McPhee v. State, 117 So.3d 1137, 1139 (Fla. 3d DCA 2012); Hudson, 820 So.2d at 1072.

The prosecutor crossed the line again in closing by making the well-known and completely inappropriate “justice for the victim” argument, by stating:

[T]he criminal justice system does not exist only to protect the rights of defendants. ... [Tjhere’s another person in this equation, and that’s the victim. The victim has a right to justice, just like he [Rodriguez] does. Equal justice under the law applies not just to defendants, but to victims, as well. He’s had his day in court. It’s time to give the victim her due. It’s time to give her justice.

“A prosecutor’s request that the jury show sympathy for the victim ... is clearly improper.” Crew, 146 So.3d at 110 (alteration in original) (quoting Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (additional citations omitted)). Such statements have been “uniformly condemned” because they may inflame the minds and passions of jurors. Cardona v. State, 185 So.3d 514, 521-22 (Fla. 2016). Such “arguments have been condemned as unfair, intemperate, and unethical.” Edwards, 428 So.2d at 359 (citations omitted). The potential harm of that argument can be sufficiently ameliorated only where such comments are isolated and are met by timely defense objections which are sustained by a trial judge who then instructs the jury to disregard the comments and admonishes the prosecutor to cease. Crew, 146 So.3d at 111-12 (Berger, J., concurring); Dorsey, 942 So.2d at 986. Here, there were no objections, no curative instructions, and no rebuke of the prosecutor for repeatedly crossing clearly established lines.

To further erode the fairness of the trial, during closing arguments, the prosecutor misstated, misrepresented, and/or inaccurately recounted certain evidence, including repeatedly saying that Appellant had admitted to several specific inappropriate sexually-related activities with the victim, when in fact Appellant had consistently, repeatedly denied them. “[Misquoting a defendant or implying a defendant said something [that he did not] is a misrepresentation of the evidence.” Crew, 146 So.3d at 108 (citing State v. Cutler, 785 So.2d 1288 (Fla. 5th DCA 2001)). As the Sixth Circuit Court of Appeals explained:

Misrepresenting facts in evidence can amount to substantial error because doing so may profoundly impress a jury and may have a significant impact on the jury’s deliberations. For similar reasons, asserting facts that were never admitted into evidence may mislead a jury in a prejudicial way. This is particularly true when a prosecutor misrepresents evidence, because a jury generally has confidence that a prosecuting attorney is faithfully observing his obligation as a representative of a sovereignty.

Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (internal citations omitted).

There are more examples of the prosecutor approaching or crossing the line of proper closing argument by: (i) repeatedly calling Appellant a liar; (ii) making nationalistic appeals to what sexual information the people of the United States do not want five year olds to have; (iii) ridiculing Appellant’s position with sarcastic remarks and comments; (iv) and stating that Appellant violated one of the most sacred duties of our society by his conduct. Each of these comments invited the jury to return a verdict for any number of reasons other than proof of guilt beyond a reasonable doubt. The prosecutor’s continuous and varied improprieties here raise the concern that this may not have been “merely [an] isolated example[ ] of understandable, if inexcusable overzea-lousness in the heat of trial,” but rather suggests that the improprieties may have been “deliberately calculated to accomplish just what representatives of the state cannot be permitted—inducing a jury to convict by unfairly prejudicing it against the defendant.” Jackson v. State, 421 So.2d 15, 16 (Fla. 3d DCA 1982).

“While ‘wide latitude is permitted in closing argument, ... this latitude does not extend to permit improper argument.’ ” Cardona, 185 So.3d at 520 (alteration in original) (quoting Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998)). “As we have stated for decades, we expect and require prosecutors, as representatives of the State, to refrain from engaging in inflammatory and abusive ai’guments, to maintain their objectivity, and to behave in a professional manner.” Id. at 516 (citations omitted). In order for a prosecutor’s improper comments in closing to be deemed so unfairly prejudicial as to require a new trial, “they must vitiate the trial or so poison the minds of the jurors that [the defendant] did not receive a fair trial.” Gonzalez v. State, 786 So.2d 559, 567 (Fla. 2001) (internal quotation marks omitted) (quoting Harris v. State, 742 So.2d 835, 839 (Fla. 2d DCA 1999) (additional citation omitted)).

“The general rule is that the failure to raise a contemporaneous objection to those comments constitutes a waiver of the right to claim error on appeal.” Davis v. State, 937 So.2d 273, 275 (Fla. 4th DCA 2006) (citation omitted). Appellant offers no explanation for why defense trial counsel failed to object to the many improper remarks made by the prosecutor during rebuttal closing arguments. “The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Brooks v. State, 762 So.2d 879, 898-99 (Fla. 2000) (quoting McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (additional citations omitted)). “[W]here prejudicial conduct in its collective import is so extensive as to pervade the trial, a new trial should be awarded regardless of the want of an objection.” Silva, 619 So.2d at 5 (citation omitted).

“Taken individually, in a different case, the prosecutor’s comments may not have been so egregious as to warrant reversal. However, the remarks must be viewed cumulatively in light of the record in this case.” Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998). The flood of improper prosecutorial comments in closing argument in this case was deep, wide, and unrelenting; it made a mockery of the constitutional guarantee of a fair trial for Appellant. “Here, the improprieties in the prosecutor’s closing argument reached the critical mass of fundamental error.” Id. Even if we wei’e convinced that the State had presented sufficient evidence to support the jury’s verdict, a new trial is required because of the detrimental effect of the closing argument in this case. Cardona, 185 So.3d at 519.

Since there must be a retrial, we advise the attorneys who will prosecute and defend to carefully read our opinion and the many important cases which we have cited so that there will be no doubt where admirable advocacy ends and inappropriate, unfair closing argument begins. Armed with that knowledge, the prosecutor can zealously pursue justice, avoid snatching defeat from the jaws of victory, and dispense with a meaningful discussion with the Florida Bar or a local professionalism panel. Likewise, well informed defense counsel will be positioned to effectively advocate for Appellant by contemporaneously objecting to any perceived inappropriate arguments. Further, we note that trial courts have a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct in closing argument, especially when it becomes as frequent and flagrant as in this trial. See Crew, 146 So.3d at 111 (Berger, J., concurring); Borden v. Young, 479 So.2d 850, 852 (Fla. 3d DCA 1985).

Finally, we also have a duty to take appropriate action concerning what we perceive to be several clear departures from professionalism and possible ethical violations on the part of the prosecutor. See Fla. Code of Jud. Conduct, Canon 3D(2); R. Regulating Fla. Bar 4~3.4(c), 4-3.4(e), <& 4-3.5(a). If this argument had taken place in our court, we might have been able to take appropriate action by determining whether the prosecutor’s lapse in professionalism was intentional and deserving of some sanction or whether it would be better addressed by a strong rebuke from this court accompanied by directions for the prosecutor to become well educated on proper closing argument. However, we did not have that opportunity to directly address the attorney or the conduct. Accordingly, the action we take is to order the clerk of this court to provide the Florida Bar with a copy of this opinion, a copy of the trial transcript, and a letter identifying the attorney who prosecuted this case on behalf of the State at the trial court level, so that the Bar or on its referral, the Ninth Judicial Circuit’s Local Professionalism Panel, can decide how best to address this lawyer and the unfortunate conduct.

REVERSED AND REMANDED FOR A NEW TRIAL

ORFINGER, J., concurs.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because, in my view, the unobjected-to statements made by the prosecutor, although improper, do not rise to the level of fundamental error.

      . Appellate counsel were not the prosecution or defense trial counsel below.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . It may be acceptable for a prosecutor to argue that the defendant has not been truthful, and even to use the words "lie” and "liar” if the evidence supports the argument as long as the prosecutor does not invite conviction based solely on who is telling the truth, and the jury is instructed to reach its verdict based only on the evidence and the law. Compare Craig v. State, 510 So.2d 857, 865 (Fla. 1987), with Pacifico v. State, 642 So.2d 1178, 1183 (Fla. 1st DCA 1994).


text:
    Julian MERRIEX, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2217
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the trial court’s order revoking probation and the resulting sentence. We remand, however, for correction of a scrivener’s error in the written order of revocation. The trial court’s order incorrectly referenced “conditions 7 & 6” rather than conditions five and six as alleged in the affidavit of violation and as orally pronounced at the hearing. On remand, the court should enter a corrected order that conforms to its oral pronouncement. See Wilkerson v. State, 82 So.3d 1201 (Fla. 1st DCA 2012).

AFFIRMED and REMANDED for correction.

OSTERHAUS, JAY, and WINSOR, JJ., CONCUR.


text:
    Julian MERRIEX, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2216
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the trial court’s order revoking probation and the resulting sentence. We remand, however, for correction of a scrivener’s error in the written order of revocation. The trial court’s order incorrectly referenced “conditions 7 & 6” rather than conditions five and six as alleged in the affidavit of violation and as orally pronounced at the hearing. On remand, the court should enter a corrected order that conforms to its oral pronouncement. See Wilkerson v. State, 82 So.3d 1201 (Fla. 1st DCA 2012).

AFFIRMED and REMANDED for correction.

OSTERHAUS, JAY, and WINSOR, JJ., CONCUR.


text:
    Stephen TRUSTY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1233
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017

      Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Stephen Trusty appeals his convictions and sentences for second-degree murder and witness tampering, raising five grounds ‘ for reversal. We affirm on all grounds with the exception of the assessment of certain costs and fines. We find that the trial court erred in imposing these costs and fines, and therefore accept the State’s proper concession of error.

At sentencing, the court stated that it would “impose a five thousand dollar cost on [the] case,” but did not specify the various bases for its assessment. The written order, however, listed several individual costs with statutory citations, as well as a fine in the amount of $3,878.85, with a five percent surcharge of $204.15, for a total assessment of $5,000. Many of the individual costs imposed were mandatory, and the court was not required to separately identify those assessments at the sentencing hearing. Lang v. State, 856 So.2d 1105, 1107 (Fla. 1st DCA 2003) (citing Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995)).

However, a fine pursuant to section 775.083, Florida Statutes (2014), is discretionary, and may not be imposed without notice and an opportunity to be heard. Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015). Because the court did not follow the proper procedure in imposing the $3,878.85 fíne, it must be stricken. See id. Further, where such a fine is imposed without proper notice, its corresponding surcharge must also be stricken. Id. If the court wishes to reimpose the fine and surcharge on remand, it may do so after providing the requisite notice and opportunity to be heard. Id.

Similarly, Trusty challenges a $300.00 appointed attorney lien payment assessment. While section 938.29, Florida Statutes, mandates a legal assistance lien assessment of “no less than $100 per case when a felony offense is charged,” and authorizes a higher amount “upon a showing of sufficient proof of higher fees or costs incurred,” a trial court is required to give the defendant notice and an opportunity to be heard prior to imposing a fee in excess of the statutory minimum. Carmichael v. State, 192 So.3d 640 (Fla. 1st DCA 2016). Here, because Trusty was not given notice and an opportunity to be heard regarding the discretionary portion of the assessment, it must be stricken. On remand, the court may reimpose this cost after complying with the proper procedure. Id.

Next, Trusty challenges the imposition of a $2.00 cost for the Gulf Coast College Community Justice Assessment Center. Section 318.18, Florida Statutes, authorizes an assessment of two dollars for offenses involving motor vehicles, but is not applicable to Trusty’s convictions. Thus, this assessment was unauthorized and must be stricken. See, e.g., Renaud v. State, 660 So.2d 408, 408 (Fla. 1st DCA 1995) (remanding with directions to strike unauthorized cost).

Finally, Trusty challenges a $50.00 fine imposed for the Drug Abuse Trust Fund. While section 938.298 authorizes such a fine in cases involving certain alcohol or drug offenses, and section 893.165 provides for those fines to go toward Drug Abuse Trust Funds established at the county level, Trusty was not convicted of one of these offenses. Thus, this assessment was unauthorized and must be stricken. See Renaud, id.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED with directions.

B.L. THOMAS, ROWE, and WINSOR, JJ., CONCUR.

       The State also conceded error with regard to Trusty's claim that the criminal punishment scoresheet incorrectly classified his tampering with a witness conviction as a level nine offense, arguing that it should have been classified as a level four offense. This concession was incorrect because witness tampering is a level four offense only when the relevant investigation or proceeding is a third-degree felony. See § 914.22, Fla. Stat, (2014) (classifying witness tampering offenses based on the affected investigation or proceeding); § 21.0022, Fla. Stat. (2014) (providing that the statutory references and offense degree designations in the offense severity ranldng chart are controlling, and ranking the third-degree felony of tampering with a witness as a level four offense). Here, because Trusty's tampering conviction relates to a proceeding or investigation for a higher degree offense— second-degree murder—-it is classified in accordance with section 921.0023, Florida Statutes. See §§ 914.22, 921.0022, 921.0023, Fla. Stat. (2014).


author: May, J.

text:
    VITACOST.COM, INC., Appellant, v. James MCCANTS, Appellee.
    No. 4D16-3384
    District Court of Appeal of Florida, Fourth District.
    February 15, 2017

      Edward R. Nicklaus and Kathleen Phillips of Nicklaus & Associates, P.A., Coral Gables, for appellant.
    Sean C. Domnick of Dominick Cunningham & Whalen, Palm Beach Gardens, and Lawrence R. Lassiter and Charles Clayton Miller of Miller Weisbrod, LLP, Dallas, for appellee.
   May, J.

The enforcement of an arbitration clause in an internet sale of dietary supplements is the issue in this appeal. A seller of dietary supplements appeals a non-final order denying its motion to compel arbitration in a products liability action. The issue is whether the terms and conditions located on the seller’s website, which included an arbitration clause, were effectively incorporated into the sales agreement between the plaintiff purchaser and the seller. The trial court concluded that the arbitration clause was not incorporated and denied the seller’s motion to compel arbitration. We agree with the trial court and affirm.

The plaintiff purchased dietary supplements, which allegedly caused serious damage to his liver. After the plaintiff filed his complaint, the seller moved to compel arbitration. The seller argued the “terms and conditions of sale,” which were accessible via hyperlink during the online transaction, were incorporated into the sales agreement as part of a “browsewrap” agreement. Florida does not appear to have ruled on the enforceability of an arbitration clause in a “browsewrap” agreement making this a case of first impression.

“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir.[ ]2004). One such principle is the requirement that “[mjutual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir.[ ]2002) (applying California law).

Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175-76 (9th Cir. 2014).

There are at least two types of agreements found in internet sales, a “browsewrap” and a “clickwrap” agreement. Id. A “clickwrap” agreement occurs when a website directs a purchaser to the terms and conditions of the sale and requires the purchaser to click a box to acknowledge that they have read those terms and conditions. “Clickwrap” agreements are generally enforceable. Id.

A “browsewrap” agreement occurs when a website merely provides a link to the terms and conditions and does not require the purchaser to click an acknowledgement during the checkout process. Id. at 1176. The purchaser can complete the transaction without visiting the page containing the terms and conditions. “Browsewrap” agreements have only been enforced when the purchaser has actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice. Id. at 1176-77.

The seller argues that the terms and conditions on its website were conspicuous enough to put the plaintiff on inquiry notice during the purchase. The seller filed a sworn affidavit from one of its officers in support of its motion to compel, attaching screenshots of the seller’s website showing where the hyperlink to the “terms and conditions of the sale” is situated on each webpage.

Throughout most of the purchase process, the hyperlink appears at the very bottom of the seller’s webpage and can be seen only if the purchaser scrolls to the bottom. Based on the webpage printouts, a purchaser would have to scroll through multiple pages of products before reaching the bottom where the link is located. The following screenshot of the bottom of the webpage shows the hyperlink circled:

When purchasers are ready to check out and click on their shopping cart, the hyperlink shifts over to the far right column, but it is still situated toward the bottom of the page. At this point, the hyperlink is labeled “terms and conditions,” not “terms and conditions of sale.” According to the affidavit, the “terms and conditions” hyperlink on the checkout page is in “bright blue” font. The following is a screenshot of the check-out page, which shows the hyperlink circled:

In response to the seller’s motion, the plaintiff filed an affidavit asserting that he did not have actual knowledge of the terms and conditions of the sale. He also filed an affidavit from one of his attorneys, attesting that he went through the purchase process on the seller’s website and was never directed to review the “terms and conditions of sale.” Screenshots from his transaction are attached to the affidavit as exhibits. With respect to hyperlink positioning, these screenshots match the screenshots attached to the seller’s affidavit.

The trial court denied the motion to compel, finding the hyperlinks were not conspicuous enough to put the plaintiff on inquiry notice of the “terms and conditions of sale.” From this order, the seller now appeals.

We have de novo review of “[a]n order granting or denying a motion to compel arbitration....” Berkowitz, Dick, Pollack & Bryant v. Smith, 49 So.3d 309, 311 (Fla. 4th DCA 2010). However, any findings of fact will be upheld if they are supported by competent substantial evidence. CFC of Delaware LLC v. Santalucia, 91 So.3d 899, 901 (Fla. 4th DCA 2012).

In Florida, to incorporate a collateral document into an agreement, the agreement must: (i) specifically provide that the collateral document is being incorporated; and (ii) sufficiently describe the collateral document being incorporated. BGT Grp., Inc. v. Tradewinds Engine Servs., LLC, 62 So.3d 1192, 1194 (Fla. 4th DCA 2011).

“Browsewrap” agreements have only been enforced when the hyperlink to the terms and conditions is conspicuous enough to place the user on inquiry notice. Nguyen, 763 F.3d at 1176-77. Uniformly, courts have declined to enforce “browse-wrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them. Id. at 1177.

The seller relies heavily on Hubbert v. Dell Corp., 359 Ill.App.3d 976, 296 Ill.Dec. 258, 835 N.E.2d 113, 121 (2005). There, the plaintiff sued a seller following a dispute regarding computers purchased on the seller’s website. Id., 296 Ill.Dec. 258, 835 N.E.2d at 117. To purchase the computers, the plaintiff had to complete three separate webpage forms, which expressly stated: “All sales subject to Dell’s Terms and Conditions of Sale.” Id. 296 Ill.Dec. 258, 835 N.E.2d at 121-22. Each webpage contained a blue hyperlink labelled “Terms and Conditions of Sale.” Id. 296 Ill.Dec. 258, 835 N.E.2d at 121. The court found the terms and conditions of sale were incorporated into the online contract.

The statement that the sales were subject to the defendant’s “Terms and Conditions of Sale,” combined with making the “Terms and Conditions of Sale” accessible online by blue hyperlinks, was sufficient notice to the plaintiffs that purchasing the computers online would make the “Terms and Conditions of Sale” binding on them.

Id. 296 Ill.Dec. 258, 835 N.E.2d at 122.

Here, unlike Hubbert, none of the webpages made the plaintiffs purchase subject to the “terms and conditions of sale.” The seller’s website allowed a purchaser to select a product and proceed to check-out without seeing the hyperlink to the "terms and conditions” because the hyperlink would not be visible unless the purchaser scrolled to the bottom of the page. Once on the check-out webpage, the hyperlink is only labeled “terms and conditions,” and the page contains no statement that the sale is subject to those “terms and conditions.”

In other cases cited by the seller, courts held that the “terms and conditions” were not incorporated into the agreement. Hines v. Overstock.com, Inc., 668 F.Supp.2d 362, 367 (E.D.N.Y. 2009) (holding that terms and conditions unenforceable where user would have to scroll to the bottom of the webpage to see the hyperlink); In re Zappos.com, 893 F.Supp.2d 1058, 1064 (D. Nev. 2012) (holding that terms and conditions were not incorporated where hyperlink was buried near the bottom of the webpage).

Finally, the seller claims that a message directing purchasers to review their orders, which appears at the bottom of the checkout webpage, is sufficient to put purchasers on inquiry notice of the terms and conditions. Specifically, the message reads: “Before submitting your order, please take a moment to make sure everything looks good.” This is hardly an admonition for the purchaser to check and agree to the terms and conditions of the sale.

The seller does riot claim that existing Florida case law supports its position. Indeed, Florida law does not support the seller. Florida law requires the agreement to specifically provide that the collateral document is being incorporated and to sufficiently describe the collateral document to be incorporated. BGT Grp., Inc., 62 So.3d at 1194. The seller’s webpages failed to advise the plaintiff that his purchase was subject to the terms and conditions of the sale and did not put him on inquiry-notice of the arbitration provision. See, e.g., Herman v. Seaworld Parks & Entertainment, Inc., 2016 WL 7447555 (Fla. M.D. Aug. 26, 2016).

We agree with the trial court that the terms and conditions of sale, including the arbitration agreement, were not sufficiently incorporated into the internet sales agreement between the plaintiff and the seller. The trial court correctly denied the seller’s motion to compel arbitration.

Affirmed.

Taylor and Gerber, JJ., concur.


author: Klingensmith, J.

text:
    VITAL PHARMACEUTICALS, INC., d/b/a VPX/Redline, a Florida corporation, Appellant, v. PROFESSIONAL SUPPLEMENTS, LLC, A Wisconsin Limited Liability Company, a/k/a Official Professional Supplements, D/b/a Wisconsin Professional Supplements, LLC; Pro Supps USA, LLC, A Texas Limited Liability Company, a/k/a Pro Supps d/b/a Professional Supplements; Thomas Humphreys, a/k/a T.J. Humphreys; Jason Arntz; Ronald Gallagher; Michael Guadagno, a/k/a Mike Guadagno; Brian Ikalina; and Victor Lanza, a/k/a J.P. Lanza, Appellees.
    No. 4D15-1123
    District Court of Appeal of Florida, Fourth District.
    February 15, 2017
    Beverly A. Pohl, P.A., and Christina Lehm of Broad and Cassel, Fort Lauder-dale, for appellant.
    Elliot B. Kula and William D. Mueller of Kula <& Associates, P.A., Miami, and Timothy W. Schulz of Timothy W. Schulz, P.A., West Palm Beach, for appellees.
   ON MOTION FOR REHEARING

Klingensmith, J.

We grant appellees’ motion for rehearing, deny rehearing en banc and certification, and withdraw our previous opinion. We hereby substitute the following.

In a previous appeal, we affirmed the trial court’s order dissolving a temporary injunction entered in favor of Vital Pharmaceuticals, Inc. (“VPX”) and against the appellees who are two former employees of the company. Vital Pharms., Inc. v. Prof'l Supplements, LLC, 114 So.3d 952, 952 (Fla. 4th DCA 2013). In this appeal, appellant VPX now challenges the court’s order granting those appellees’ entitlement to attorneys’ fees as damages stemming from the issuance of that wrongful injunction. Because the injunction was deficient as a matter of law and the statute relied on by appellees makes damages unrecoverable, we reverse.

VPX initially filed its underlying complaint against appellees, who include the former employees and their new employer, for various claims of tortious interference as well as alleged breaches of the employees’ non-compete agreements with VPX. At the same time, VPX also sought an emergency injunction to stop the former employees from continuing to work for the competing business. The trial court granted the temporary injunction, albeit without requiring VPX to post a bond as required by Florida Rule of Civil Procedure 1.610(b) and section 542.335(l)(j), Florida Statutes (2012). After another hearing, the trial court issued an order dissolving the temporary injunction without providing any specific reason for doing so. Thereafter, appellees moved to recover damages resulting from the injunction under section 60.07, Florida Statutes (2012). Based on evidence presented at multiple hearings, the trial court awarded the former employees $34,202.44. This appeal of that award followed.

VPX’s arguments in this appeal are essentially the same as those made at the entitlement hearing. In opposing appellees’ entitlement to damages resulting from the wrongful injunction, VPX asserts that ap-pellees were not entitled to any award since the absence of a bond made the injunction unenforceable, as any award was limited by law to an amount not exceeding the amount of the injunction bond. VPX submits, therefore, that because there was no bond, appellees could not recover on their claim for damages. Based on the language of rule 1.610(b), we agree.

“A party’s entitlement to an award of attorneys’ fees under a statute or a procedural rule is a legal question subject to de novo review.” Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

Rule 1.610(b) provides:

(b) Bond. No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision thereof, the court may require or dispense with a bond, with or without surety, and conditioned in the same manner, having due regard for the public interest. No bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.

Fla. R. Civ. P. 1.610(b) (emphasis added).

Additionally, section 60.07 provides that “[i]n injunction actions, on dissolution, the court may hear evidence and assess damages to which a defendant may be entitled under any injunction bond, eliminating the necessity for an action on the injunction bond if no party has requested a jury trial on damages.” (Emphasis added).

Considering these two provisions together, section 60.07 presupposes the existence of a bond because an injunction order requires a bond under rule 1.610(b) and is subject to dissolution until a bond is posted. Florida case law also supports this position. In Hathcock v. Hathcock, 533 So.2d 802, 804 (Fla. 1st DCA 1988), one of the reasons why the First District found a temporary injunction order in a dissolution proceeding to be deficient was that “the trial court failed to impose the bond requirements of Rule 1.610(b),” Consequently, the appellate court denied the appellant’s claim for damages (including attorney’s fees) resulting from the erroneous injunction, reasoning that such damages were not awardable under section 60.07 because there was no injunction bond filed. Id. As the Hathcock court explained:

Finally, appellant claims that he is entitled, on reversal and remand to the trial court, to compensatory and punitive damages and attorney’s fees as determined by the trial court based upon the erroneous issuance of the temporary order. As authority, appellant cites to Carpenters District Council of Jacksonville v. Waybright, 282 So.2d 193 (Fla. 1st DCA 1973), and Braun v. Intercontinental Bank, 452 So.2d 998 (Fla. 3d DCA 1984). Both cases rely upon Section 60.07, Florida Statutes, in holding that a defendant is entitled to recover damages (including attorney’s fees) which resulted from the issuance of the temporary injunction. However, fatal to appellant’s reliance upon the above authorities is the fact that Section 60.07 allowing the court in the main suit to determine and award damages upon dissolution of an injunction applies only where an injunction bond has been filed. See Hoffman v. Barlly, 97 So.2d 355 (Fla. 3d DCA 1957). Thus, any remedy appellant might have for damages for the erroneous issuance of the subject order must lie elsewhere than in the instant suit.

Id. (emphasis added) (footnote omitted).

Likewise, in Ross v. Champion Computer Corp., 582 So.2d 152, 153 (Fla. 4th DCA 1991), this court opined on a party’s ability to recover damages in the absence of a bond in light of our supreme court’s precedent in Parker Tampa Two v. Somerset Development Corp., 544 So.2d 1018 (Fla. 1989):

Parker stands for the proposition that if any damages incur to the party against whom an injunction is issued, where such injunction is later determined to have been wrongfully issued, the damages recoverable are limited to the amount of the bond, if any, required upon the issuance of the injunction. In the instant case, if it is later determined, upon a full hearing and the presentation of further evidence, that Champion’s injunction was wrongfully obtained, appellant would not be able to collect any damages, as there was no bond required.

Ross, 582 So.2d at 153 (emphasis added); see also Highway 46 Holdings, LLC v. Myers, 114 So.3d 215, 223 (Fla. 5th DCA 2012) (“[I]n the event no bond is posted, the wrongfully enjoined party, if any, is without recourse as to damages stemming from the wrongful injunction.”).

Here, appellees specifically sought damages under section 60.07. Section 60.07 allows “the court in the main suit to determine and award damages upon dissolution of an injunction,” but only where an injunction bond has been filed. Hathcock, 533 So.2d at 804. As a result, we reiterate the First District’s observation in Bath-cock that any remedy appellees might have must “lie elsewhere than in the instant suit.” Id.

Reversed.

Gerber and Levine, JJ., concur.


text:
    Roosevelt KIRK, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0059
    District Court of Appeal of Florida, First District.
    Opinion filed February 16, 2017.
    Roosevelt Kirk, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the order denying Appellant’s motion for postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. In summarily denying Appellant’s claim, the trial court relied on Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013), which was quashed by the Florida Supreme Court during the pen-dency of this appeal. See Atwell v. State, 197 So.3d 1040, 1050 (Fla. 2016). In light of the Florida Supreme Court’s precedent in Atwell, Appellant appears to be entitled to resentencing on the first-degree murder conviction. See Atwell, 197 So.3d at 1050.

On appeal, the State argues that it is not apparent from the record whether Appellant was actually a juvenile at the time of the offense. The record on appeal does not contain any documents pertaining to this issue. Therefore, we remand for the trial court to conduct such proceedings as are necessary to determine whether Appellant was a juvenile at the time of the offense. If the trial court determines that Appellant was a juvenile at the time of the offense, he should be resentenced in conformance with chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Atwell v. State, 197 So.3d at 1050; Woods v. State, 2016 WL 7217231 (Fla. Dec. 13, 2016).

REVERSED and REMANDED with instructions.

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


author: SILBERMAN, Judge.

text:
    Dennis E. NEELEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1183
    District Court of Appeal of Florida, Second District.
    Opinion filed February 17, 2017.

      Ryan C. Torrens of Torrens Law Group, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

Dennis Neeley appeals the order summarily denying his motions filed under Florida Rule of Criminal Procedure 3.850. We affirm the portions of the postconviction court’s order that summarily deny claims one, two, and three of the first motion and claims one and three of. the amended motion. We reverse the portion of the order that summarily denies claim two of the amended motion and remand for further proceedings.

In ground two of his amended motion, Mr. Neeley asserted that his trial counsel was ineffective for failing to object when the prosecutor repeatedly told the jury in closing argument that his theory of defense was despicable, desperate, and a “re-victimization” of the victim. The postcon-viction court ruled that certain of the prosecutor’s statements were improper but that “based on the testimony presented at trial, the Defendant has failed to demonstrate there is a reasonable probability that the outcome of the proceedings would have been different if counsel had objected to these statements.”

The portions of the trial transcript that the postconviction court attached to its order in support of this ruling reflect that despite the substantial evidence presented by both parties, the case hinged upon the victim’s testimony. The victim testified that Mr. Neeley sexually battered and molested her, and Mr. Neeley testified and denied her allegations. The State presented evidence of the victim’s prior statements to support her testimony, and Mr. Neeley’s wife testified to facts in support of the defense theory. The record attachments do not show that the State presented physical evidence of the crimes or evidence that Mr. Neeley ever confessed to the crimes asserted by the victim. The attachments also show that during her initial and rebuttal closing argument, the prosecutor referred to Mr. Neeley’s theory of defense as a “re-victimization” of the victim five times, she ridiculed his defense as desperate five times, and she twice disparaged his defense as despicable. Indeed, the attachments show that the prosecutor concluded her rebuttal closing argument by imploring the jury: “And I just want to close once again with ‘don’t do it.’ As [the victim] said, ‘don’t do it.’ Don’t re-victimize her.”

The prosecutor’s repeated references to Mr. Neeley’s defense as desperate, despicable, and a “re-victimization” of the -victim are unquestionably improper. See Sheridan v. State, 799 So.2d 223, 225-26 (Fla. 2d DCA 2001) (recognizing that the prosecutor “repeatedly made improper statements during closing argument, including the reference to a defense theory as ‘desperate’ ”); Brown v. State, 593 So.2d 1210, 1211-12 (Fla. 2d DCA 1992) (stating that the prosecutor’s comments that the victim was again “victimized” by having to testify at trial and that “he wanted to be able to call the victim and say that the jury had the courage to see the truth and that he was not victimized a second time” were improper appeals for sympathy that would create “hostile emotions toward the accused” and were improper expressions of personal belief); Kelly v. State, 842 So.2d 223, 227 (Fla. 1st DCA 2003) (determining that a new trial was required, in part, because “a very large portion of the prosecutor’s closing remarks appear to be calculated to generate hatred and ill will towards the defendant” and “invited the jury to make a finding of guilt for a reason other than evidence that demonstrated [the defendant] committed the crime”); Jenkins v. State, 563 So.2d 791, 791 (Fla. 1st DCA 1990) (determining that the prosecutor’s statements accusing defense counsel of further victimizing the victim were “clearly improper”).

The record attachments do not reflect that Mr. Neeley’s trial counsel objected to any of the statements now being challenged. Had counsel objected, improper argument that urged the jury to return a guilty verdict based on sympathy for the victim could have been avoided. To demonstrate prejudice on an ineffective assistance of counsel claim, “the defendant must show a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Taylor v. State, 120 So.3d 540, 548 (Fla. 2013) (quoting Johnston v. State, 63 So.3d 730, 737 (Fla. 2011)); see also Carter v. State, 175 So.3d 761, 767 (Fla. 2015).

Here, the attachments to the trial court’s order reflect that the trial was a credibility contest. The attachments fail to show that there is not a reasonable probability that the outcome of Mr. Neeley’s trial would have been different if his counsel had objected. We therefore reverse the portion of the posteonviction court’s order that summarily denies claim two of the amended motion and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Thomas MCGILL a/k/a Thomas C. McGill, Appellant, v. NATIONSTAR MORTGAGE, LLC, Elite Trust and Escrow Company, LLC, as Trustee of the 205 Shady Day Land Trust dated November 5, 2007, et al., Appellees.
    Case No. 5D16-4137
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 17, 2017
    Kelley A. Bosecker, St. Petersburg, for Appellant.
    Nancy M. Wallace, of Akerman LLP, Tallahassee, and William P. Heller, of Ak-erman LLP, Ft. Lauderdale, for Appellee, Nationstar Mortgage, LLC.
    No appearance for other Appellees.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Nationstar Mortgage, LLC’s Concession of Error, we reverse the Summary Final Judgment of Foreclosure and remand to the trial court for further proceedings.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    David J. PRESTANO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2500
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 17, 2017

      David J. Prestano, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

David J. Prestano appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Prestano’s motion presented eight grounds for relief. We affirm the summary denial of each ground except for ground two—Prestano’s allegation that his counsel misadvised him as to the potential of his defense. Because the record on appeal does not conclusively refute this claim, we remand for further proceedings.

Prestano pleaded no contest to one count of leaving the scene of an accident that resulted in death (Count 1), one count of DUI manslaughter (Count 11), and one count of driving while license suspended (Count 111). In ground one of his motion for postconviction relief, Prestano argued that his convictions for both DUI manslaughter and leaving the scene of an accident that resulted in death violated the prohibition against double jeopardy. He asserts that State v. Cooper, 634 So.2d 1074 (Fla. 1994), and State v. Chapman, 625 So.2d 838 (Fla. 1993), forbid the use of a single death to “enhance the degree” of two crimes. Prestano urges that in this case, the death from the manslaughter was unlawfully used to “enhance” the leaving the scene of the accident charge. We disagree.

Where a defendant is convicted of DUI manslaughter and a non-homicide traffic offense that does not require proof that the defendant caused a death, Cooper and Chapman do not apply and double jeopardy is not violated unless the offender’s failure to render aid is used to enhance the DUI from a second-degree felony to a first-degree felony. See Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010) (“There is no double jeopardy prohibition against convictions for both DUI manslaughter and leaving the scene of a fatal accident.” (citing Kelly v. State, 987 So.2d 1237 (Fla. 2d DCA 2008))). Prestano pleaded no contest to second-degree DUI manslaughter, an unmodified homicide offense, and leaving the scene of an accident that resulted in death, a non-homicide traffic offense. Accordingly, his convictions do not violate double jeopardy.

In ground two of his postconviction motion, Prestano alleged that he wanted to plead guilty on Count 11 and proceed to trial on Count 1, but that his counsel mi-sadvised him that his defense for Count I was not viable. Prestano further alleged that but for his counsel’s ineffectiveness, he would have proceeded to trial on Count I and prevailed.

In denying ground two, the trial court relied on Prestano’s general waiver of all defenses during his plea colloquy. A general waiver of defenses, however, does not conclusively show that Prestano was not misadvised as to the legal sufficiency of his defense. See Hayes v. State, 120 So.3d 640, 640-41 (Fla. 2d DCA 2013). Accordingly, we remand for the trial court to either attach portions of the record conclusively refuting this allegation or to conduct an evidentiary hearing on ground two. We find no merit in Prestano’s remaining claims for relief.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

COHEN, C.J., EDWARDS, J. and JACOBUS, B. W., Senior Judge, concur.

      . Prestano wished to claim lack of mental capacity, which could be a valid defense to the crime of leaving the scene. See § 316.027(l)(b), Fla. Stat. (2012); Martin v. State, 323 So.2d 666, 667 (Fla. 3d DCA 1975).


author: COHEN, C.J.

text:
    William WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D14-3543
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 17, 2017
    Eric A. Latinsky and Aaron D. Delgado, of Damore, Delgado & Romanik, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

COHEN, C.J.

Factual Background

William Williams was arrested for driving under the influence, and was subsequently asked to undergo a breath-alcohol test to determine his blood-alcohol content, which he refused to do. Williams was then issued five uniform traffic citations, including a citation for refusal to submit in violation of section 316.1939, Florida Statutes (2013). That section provides that any person who has previously had his or her license suspended for refusing to submit to a lawful breath, urine, or blood test, and who refuses to submit a second time when there is probable cause to suspect the driver is under the influence, is guilty of a misdemeanor. § 316.1939, Fla. Stat. (2013).

Williams filed a motion to dismiss the refusal to submit charge, arguing that the statute is unconstitutional as applied to him. For purposes of the motion, the parties stipulated that: (1) the police had probable cause to ask Williams to submit to a breath test; (2) the initial stop of Williams’s vehicle was lawful; (3) Williams refused to take the breath test; (4) Williams’s driving record reflected a prior refusal to submit to a breath test; and (5) the motion to dismiss was dispositive as to the refusal to submit charge. The county court denied the motion to dismiss and certified the following question as one of great public importance:

If the implied[-]eonsent statute provides consent to search as an exception to the Fourth Amendment warrant requirement, then can that consent be withdrawn by refusal to submit to an otherwise lawful test of breath, blood or urine and can the second such refusal be punishable as a criminal offense? []

The court then accepted Williams’s no-contest plea, which specifically reserved the right to appeal the denial of the motion to dismiss. Williams was sentenced to time served.

Procedural History

In Williams v. State, 167 So.3d 483 (Fla. 5th DCA 2015), this Court answered the certified question in the affirmative and held that breath-alcohol tests are generally reasonable. Williams sought review in the Florida Supreme Court, which accepted jurisdiction. Williams v. State, 2015 WL 9594290 (Fla. Dec. 30, 2015). While this case was pending, the United States Supreme Court issued its decision in Birchfield v. North Dakota, _ U.S. _, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), holding, among other things, that breath-alcohol tests administered without a warrant are permissible as searches incident to a lawful arrest for driving under the influence. The Florida Supreme Court then vacated our decision in Williams and remanded the case to this Court for reconsideration in light of Birchfield. Williams v. State, 2016 WL 6637817 (Fla. Nov. 9, 2016). We allowed supplemental briefing and again affirm Williams’s conviction.

Discussion

Birchfield has made our task significantly easier. Under the Florida Constitution, our Fourth Amendment jurisprudence is governed by decisions of the United States Supreme Court. Art. I, § 12, Fla. Const. Thus, we adopt the holding in Birchfield that breath-alcohol tests are permissible under the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement. We once again answer the certified question in the affirmative as applied to Williams and affirm his conviction. See Birchfield, 136 S.Ct. at 2184-85.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.

      . Although the certified question tracks the statutory language by including blood and urine tests as well as breath tests, Williams challenges the statute solely as applied to his refusal to submit charge. It is undisputed that Williams was only asked to undergo a breath test, so we need not address the legality of blood and urine tests. We note, however, that the United States Supreme Court's decision in Birchfield makes clear that blood and urine tests raise more substantial privacy concerns and are not subject to the search-incident-to-arrest exception to the Fourth Amendment’s general warrant requirement. See Birchfield v. North Dakota, _ U.S. _, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016).

      . In his supplemental brief, Williams requests this Court to remand his case so that he can withdraw his plea. We decline to provide this relief. Williams knowingly entered into his plea agreement to challenge his conviction on constitutional grounds. Absent further review in the Florida Supreme Court, that challenge has now run its course.


text:
    Alfred WOODS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-4352
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Andy Thomas, Public Defender; and Steven, L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

The Supreme Court of Florida has quashed this Court’s decision in this case and remanded to this Court with instructions that we further remand to the circuit court “for resentencing in conformance with sections 775.082, 921.1401, and 921.1402 of the Florida Statutes. See Atwell v. State, 197 So.3d 1040 (Fla. 2016).” Accordingly, we remand this matter to the circuit court for resentencing in accordance with the supreme court’s mandate. No motion for rehearing is permitted.

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


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    STATE of Florida, Petitioner, v. Timothy Scott HAMILTON, Respondent.
    Case No. 2D16-2754
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, Elba Martin-Schomaker, Assistant Attorney General, Tampa, and Jerry Hill, State Attorney, and Victoria J. Avalon, Assistant State Attorney, Bartow, for Petitioner.
    Ita M. Neymotin, Regional Counsel, and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Respondent.
   ROTHSTEIN-YOUAKIM, Judge.

The State seeks second-tier certiorari review of the circuit court’s order granting Defendant Timothy Scott Hamilton’s petition for writ of prohibition and ordering the county court to dismiss the charge against Mr. Hamilton for refusing to submit to a breath, blood, or urine test. The circuit court ruled that the county court should have granted Mr. Hamilton’s motion to dismiss because, under Florida Rule of Criminal Procedure 3.151, the offense underlying the refusal charge was related to the offense underlying a DUI charge of which he had been acquitted one day before the State had filed the information on the refusal charge. We grant the State’s petition and quash the circuit court’s order because the circuit court ignored well-established case law holding that prohibition is available only to prevent a lower tribunal’s unauthorized exercise of jurisdiction.

Background

A Polk County Sheriffs deputy arrested Mr. Hamilton for driving under the influence. At the Polk County jail, Mr. Hamilton twice refused to provide a breath sample, the second time occurring after the deputy had read him the statutory implied-consent warning. The State charged Mr. Hamilton with DUI (two prior convictions), see § 316.193(l)(a), (2)(b)(2), Fla. Stat. (2011), but a county court jury found Mr. Hamilton not guilty. The following day, the State charged Mr. Hamilton with refusing to submit to a breath test. See § 316.1939(1). Mr. Hamilton moved to dismiss the refusal charge pursuant to rule 3.151(c), arguing that the offenses underlying the refusal charge and the DUI charge were related and that the State’s prosecution of the DUI demonstrated that it would have been able, by due diligence, to obtain sufficient evidence to warrant charging the refusal. The county court denied the motion.

Mr. Hamilton petitioned for a writ of prohibition and requested the circuit court to bar prosecution on the refusal charge either pursuant to rule 3.151, or, alternatively, because it would constitute double jeopardy. The circuit court rejected Mr. Hamilton’s double-jeopardy argument but granted the petition based on its conclusion that the DUI and the refusal were related offenses under rule 3.151(a). The circuit court, however, did not address the threshold question of whether prohibition was available to preclude prosecution under rule 3.151(c).

Discussion

A second-tier petition for writ of certiorari is the appropriate vehicle to review a circuit court’s order on a petition for writ of prohibition. See Sutton v. State, 975 So.2d 1073, 1080-81 (Fla. 2008). This court’s review is limited to whether the circuit court afforded the petitioner procedural due process and whether it departed from the essential requirements of law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010). Such a departure must be more than simple legal error, because second-tier certiorari relief is available only “when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Id. This “clearly established law” can include constitutional law, statutes, rules of court, and recent controlling case law that deals “with the same issue of law, an interpretation or application of a statute, a procedural rale, or a constitutional provision.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003).

The writ of prohibition is an extraordinary remedy that “may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction.” English v. McCrary, 348 So.2d 293, 296 (Fla. 1977); see also Taylor v. State, 65 So.3d 531, 533 (Fla. 1st DCA 2011) (“Prohibition is an extraordinary remedy that [is] used to restrain the unlawful use of judicial power.”). The writ is available, for example, to prevent prosecutions that the trial court lacks jurisdiction to entertain based on double jeopardy or speedy trial considerations. See, e.g., Sherrod v. Franza, 427 So.2d 161, 163 (Fla. 1983) (“Prohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. A court does not have jurisdiction to try a defendant when he is entitled to discharge on the ground of double jeopardy or collateral estoppel, or if he is entitled to a discharge because of a violation of his immunity from prosecution or his right to a speedy trial.” (internal citation omitted)); Moody v. State, 931 So.2d 177 (Fla. 2d DCA 2006) (granting writ to prevent retrial on charges on which defendant already had been acquitted because retrial would violate Double Jeopardy Clause); State ex rel. Wilhoit v. Wells, 356 So.2d 817, 821-22, 825 (Fla. 1st DCA 1978) (granting writ to prevent trial on charges to which defendant had already pled nolo contendere because trial would violate double jeopardy clause).

In this case, however, after rejecting the merits of Mr. Hamilton’s double-jeopardy argument, the circuit court addressed the merits of his rale 3.151 argument without first considering whether rule 3.151 implicates the county court’s jurisdiction to entertain his prosecution on the refusal charge. And, in short, it does not. See Von Deck v. Evander, 622 So.2d 1160, 1162 (Fla. 5th DCA 1993) (“Rule 3.151(c) provides for dismissal of related offenses not consolidated for trial; however, this procedural rule does not invoke double jeopardy concerns.... An allegedly erroneous denial of a rule 3.151(c) motion to dismiss does not affect the trial court’s subject matter jurisdiction as does the erroneous denial of a motion to dismiss based on double jeopardy grounds.”); see also State v. Mateen, 678 So.2d 449, 451 (Fla. 2d DCA 1996) (“Unlike the Blockburger[ v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)] test, rule 3.151(b) defines related offenses as those that may be tried in the same court and those that are based on the same act or transaction or two or more connected acts or transactions. This rule is separate and distinct from the doctrine of double jeopardy.” (internal citation omitted)). In failing to address the threshold question of whether the extraordinary remedy of prohibition was even available, the circuit court violated a clearly established principle of law. See Custer, 62 So.3d at 1092-93.

Furthermore, this violation resulted in a miscarriage of justice. See id. First, the erroneous grant of prohibition impermissi-bly infringed on the county court’s lawful exercise of its jurisdiction, as defined by statute pursuant to article V, section 6(b), of the Florida Constitution. See § 34.01(l)(a), Fla. Stat. (2013) (vesting county courts with original jurisdiction over “all misdemeanor cases not cognizable by the circuit courts”). Moreover, it wholly negated the State’s ability to proceed with its prosecution and left the State with no other avenue for review. Cf. State v. Roess, 451 So.2d 879, 880 (Fla. 2d DCA 1984) (denying state’s petition for second-tier certiorari review of circuit court’s order reversing criminal defendant’s conviction and ordering a new trial because “respondent has not been exonerated of criminal wrongdoing” and “state has not been deprived of its day in court”).

Conclusion

Based on the foregoing, we grant the State’s petition for writ of certiorari and quash the circuit court’s order granting Mr. Hamilton’s petition for writ of prohibition.

Petition granted; order quashed.

NORTHCUTT and LUCAS, JJ., Concur.

      . The State also argues that even if prohibition were an available remedy, certiorari relief would still be warranted because the refusal and DUI are not "related" offenses . under rule 3.151(a). Because we conclude that prohibition was not available, we do not reach the merits of this alternative argument or of Mr. Hamilton’s rule 3.151 motion.

      . "For purposes of these rales, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R. Crim. P. 3.151(a).


text:
    Christopher GALLOWAY, etc., et al., Appellants, v. SUNTRUST BANK, et al., Appellees.
    Case No. 5D14-2878
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Michael E. Rodriguez, of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.
    Charles P. Gufford, of McCalla Raymer, LLC, Orlando, for Appellee, SunTrust Bank.
    No Appearance for other Appellees.
   PER CURIAM.

Christopher M. Galloway and Carmen E. Galloway appeal the final judgment of foreclosure entered by the trial court in favor of SunTrust Bank (SunTrust) after the trial court granted SunTrust’s motion for summary judgment. The Galloways argue that SunTrust failed to conclusively show that there was no genuine issue of material fact as to whether SunTrust complied with the condition precedent to acceleration and foreclosure in paragraph 22 of the mortgage requiring thirty days’ notice prior to acceleration of the loan. We agree and reverse.

To establish its right to foreclose in its summary judgment motion, SunTrust was required to, among other things, show it complied with the condition precedent in paragraph 22 of the mortgage. DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439 (Fla. 2d DCA 2013) (citing F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962)). In support of its motion, SunTrust filed an affidavit of indebtedness; however, the affidavit did not address the acceleration letter. As such, the acceleration letter was unauthenticated and could not be used to support Sun-Trust’s motion for summary judgment. See Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 198 (Fla. 5th DCA 2015) (citing Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 n.2 (Fla. 5th DCA 2013)); Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (holding that bank’s filing of unauthenticated notice letter failed to support summary judgment where defendant denied receiving notice of default); Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (finding unauthenticated copies of default letters purportedly sent to defendant by bank were insufficient for summary judgment purposes (citing Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997))); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”).

In order to factually dispute Galloway’s denial of SunTrust’s compliance with paragraph 22 of the mortgage, SunTrust “needed only to have a competent witness execute a legally sufficient affidavit authenticating the letter, attach the letter to the affidavit, and then timely file the affidavit.” Colon, 162 So.3d at 199. Because it failed to do so, we are compelled to reverse the final judgment of foreclosure and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA, BERGER and LAMBERT, JJ., concur.


author: WALLIS, J.

text:
    Clint Steven BROWN, Appellant, v. Angela BROWN, Appellee.
    Case No. 5D16-737
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Jamie Billotte Moses, of Holland & Knight LLP, Orlando, for Appellant.
    Angela Brown, Lake Mary, pro se.
   WALLIS, J.

Clint Steven Brown (“Former Husband”) appeals the trial court’s order of indirect civil contempt for failure to pay alimony to Angela Sue Brown (“Former Wife”). Florida Family Law Rule of Procedure 12.615(d)(1) provides:

An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.

(emphasis added). Here, despite including general findings regarding Former Husband’s finances, the trial court failed to expressly find that he had the present ability to pay support. The absence of such a finding warrants reversal “for the limited purpose of allowing the trial court to enter an order in compliance with rule 12.615(d)(1).” Trisotto v. Trisotto, 966 So.2d 986, 988 (Fla. 5th DCA 2007); accord Holtz v. Holtz, 95 So.3d 457, 458 (Fla. 4th DCA 2012). Thus, we reverse and remand for entry of a compliant order.

REVERSED and REMANDED with Instructions.

SAWAYA and BERGER, JJ., concur.


text:
    Peter A. SHAPIRO, Petitioner, v. Davina CRAIG, Respondent.
    Case No. 5D17-410
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Peter A. Shapiro, of The Law Offices of Peter A. Shapiro & Jonathan D. Wilson, Orlando, pro se.
    No Appearance for Respondent.
   WALLIS, J.

Peter Shapiro petitions this court for a writ of prohibition following the dismissal of his motion to disqualify the trial judge. Trial courts determine the legal sufficiency of a motion to disqualify by considering whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981) (citing Brewton v. Kelly, 166 So.2d 834 (Fla. 2d DCA 1964)). The allegations cited in the motion to disqualify concerned the trial judge’s prior representation of the respondent, Davina Craig, as well as a prior case where Shapiro and the trial judge represented opposing parties in contentious litigation ten years ago. We find that Shapiro’s allegations created a well-founded fear in his mind that he would not receive a trial by an impartial tribunal. See Livingston v. State, 441 So.2d 1083 (Fla. 1983); Kasser v. Woodson, 549 So.2d 802 (Fla. 5th DCA 1989). Therefore, we grant the petition for writ of prohibition.

PETITION GRANTED.

TORPY and EDWARDS, JJ., concur.