author: Kuntz, J.

text:
    STATE of Florida, Appellant, v. Lashundra FAIR, Appellee.
    No. 4D16-1067
    District Court of Appeal of Florida, Fourth District.
    March 15, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tatjana Ostapoffi Assistant Public Defender, West Palm Beach, for appellee.
   Kuntz, J.

The State appeals the court’s order granting the defendant’s motion to discharge for failure to file the charges at issue within the speedy trial time periods established by Florida Rule of Criminal Procedure 3.191. We affirm.

Following an accident involving the defendant’s vehicle, police officers conducted a driving under the influence (DUI) investigation and also located a bag containing a white powdery substance which they believed to be cocaine. The defendant was ultimately arrested for possession of cocaine, DUI, resisting arrest without violence, possession of drug paraphernalia, and culpable negligence. The State subsequently filed a “no information” as to the possession of cocaine and drug paraphernalia charges and transferred the remaining misdemeanor counts to county court.

The white powder was later tested by the Broward Sheriffs Office crime lab and determined to be pyrrolidinopentiophe-none (“PVP”). Based upon the result of that test, and over 175 days after the defendant’s arrest, the State filed the present case charging the defendant with one count of possession of PVP. The defendant moved to be discharged, arguing that the charge for possession of PVP was filed outside the speedy trial time limits established by Florida Rule of Criminal Procedure 3.191. The State argued to the court, as it does in this appeal, that the defendant waived her right to a speedy trial by requesting, and receiving, multiple continuances in the transferred misdemeanor case. The court rejected the State’s argument and discharged the defendant based on its conclusion that the PVP charge was filed after the speedy trial period had expired.

The issue on appeal relates to whether the continuances sought by the defendant in the misdemeanor case resulted in a waiver of her speedy trial rights in the felony case pursuant to the speedy trial rule. “The rule is a ‘procedural protection and, except for the right to due process under the rule, does not reach constitutional dimension.’” State v. Warren, 168 So.3d 337, 340 (Fla. 5th DCA 2015) (quoting State v. Bivona, 496 So.2d 130, 133 (Fla. 1986)).

Pursuant to the rule, “every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Fla. R. Crim. P. 3.191. The rule also states that a person is taken into custody “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged.” Fla. R. Crim. P. 3.191(d). As a result, our supreme court has held that the speedy trial period begins to run when the defendant is taken into custody and does not stop merely because the State does not file charges. State v. Williams, 791 So.2d 1088, 1091 (Fla. 2001). Nor does filing a no information or nol prossing of a charge toll the running of the speedy trial period. Palmer v. State, 76 So.3d 1016, 1018 (Fla. 2d DCA 2011) (citing State v. Agee, 622 So.2d 473, 475 (Fla. 1993)).

Discharge pursuant to the rule is not automatic if the State flies charges within the speedy trial period but fails to bring the case to trial or notify the defendant of the charges. State v. Nelson, 26 So.3d 570, 574 (Fla. 2010). In that situation, the rule is not self-executing, State v. Jimenez, 44 So.3d 1230, 1233 (Fla. 5th DCA 2010), and “the defendant may initiate application of the rule by filing and serving on the State a separate pleading entitled ‘Notice of Expiration of Speedy Trial Time.’” Nelson, 26 So.3d at 574. However, if the State does not file the charges within the speedy trial period, the defendant is generally entitled to a discharge.

In this case, the State argues that the court erred in discharging the defendant because the defendant had been granted three continuances in the misdemeanor case pending against her. We agree with the State that, generally, “a continuance that is chargeable to the defense ... waives a defendant’s speedy trial rights under the default period of the rule.” Id. at 580. However, based upon the facts of this case, we disagree that the continuance sought in the misdemeanor action constituted a waiver in the felony action.

The waiver of her speedy trial rights in the misdemeanor case can only be attributed to waiver in the felony case if the crimes are part of the “same criminal conduct” and “[c]rimes are deemed to be part of the same criminal conduct so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.” State v. Baynham, 72 So.3d 796, 798 (Fla. 4th DCA 2011) (citing Clevenger v. State, 967 So.2d 1039, 1041 (Fla. 5th DCA 2007)); see also Nelson, 26 So.3d at 576 (“This waiver is construed as an ongoing waiver of speedy trial rights as to all charges which emanate from the same criminal episode, including any newly filed charges arising out of the incident.”). We have explained that the fact that the crimes are committed at or near the same time is not dispositive “unless [the crimes] are based on substantially the same acts.” Id. (citing State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003)). In other words, the criminal conduct must be more than related; it must be the same conduct. Id. (citing Walker v. State, 390 So.2d 411, 412 (Fla. 4th DCA 1980)).

In Baynham, the defendant rode a bicycle and sold crack cocaine to an undercover officer. 72 So.3d at 797. He was arrested for riding a bicycle without a light and for providing a false name. Subsequently, the State dropped the charges relating to the bike light and use of a false name. Id. However, the State later filed felony charges for the sale of the cocaine. Id. The court discharged the defendant based upon the conclusion that the cocaine charge had not been filed within the speedy trial period of the previously dismissed misdemean- or charges. Id. We reversed, concluding that the cocaine charges and the bike light charge were based on separate conduct. Id. at 799. Because different conduct is at issue in a cocaine charge and a bicycle light charge, the speedy trial period of one is not attributed to the other. See id.

The Fifth District recently addressed a speedy trial issue involving multiple charges and held that “[c]rimes can constitute separate criminal episodes for speedy trial purposes even though they happen at the same time.” State v. Warren, 168 So.3d 337, 341 (Fla. 5th DCA 2015). In Warren, the defendant was in custody for loitering and prowling outside a building at the University of Central Florida. Id. at 339. While still at the building, the defendant admitted to taking certain items from within the building and returned those items. Id. Later, the defendant was charged with a single count of burglary and a single count of theft for crimes that i-elated to items taken at the time he was arrested for loitering. Id. The Fifth District agreed with the State that the arrest for loitering and the arrest for the theft did not arise from the same conduct or criminal episode. Id. at 341. That court, sitting en banc, reached the same result in State v. Pelham, 99 So.3d 599 (Fla. 5th DCA 2012), when it concluded that the charges for loitering and theft were “clearly not” charged based upon the same conduct or same act. Id. at 602.

Based on these cases, we conclude that the charge for possession of FVP did not arise from the same conduct or criminal episode as the DUI charge. Therefore, the waiver of speedy trial in the misdemeanor DUI action cannot be attributed to the defendant in the felony possession of PVP action. Because the waiver cannot be attributed to the defendant with regard to the felony charge and because the charge for possession of PVP was filed outside the 175-day speedy trial period, the court correctly granted the motion to discharge and the discharge order is affirmed.

Affirmed.

Levine and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    CITY OF RIVIERA BEACH, Florida, a Florida municipal corporation, Appellant, v. J & B MOTEL CORP., Wells Fargo Bank, N.A., Successor by acquisition to Wachovia Bank, N.A., Successor by merger to First Union National Bank, Successor by acquisition of Home Savings Bank, F.S.B., f/k/a Home Savings Bank of Florida, and Demolition King, Inc., Appellees.
    No. 4D16-0174
    District Court of Appeal of Florida, Fourth District.
    March 15, 2017
    Christy L. Goddeau and Jennifer H.R. Hunecke of Torcivia, Donlon, Goddeau & Ansay, P.A., West Palm Beach, for appellant.
    Steven M. Singer of Law Offices of Steven M. Singer, P.A., Plantation, and Alan M. Sorota of Feinstein & Sorota, P.A., Plantation, for appellee J & B Motel Corp.
   Damoorgian, J.

This case concerns the City of Riviera Beach’s attempt to foreclose a code enforcement hen encumbering commercial property owned by Appellee, J & B Motel Corp. The City recorded its lien in the public records in 2003, but did not sue to foreclose until 2015. Appellee moved to dismiss the foreclosure action, arguing that it was barred by either the four or five year statute of limitations set forth in sections 95.11(2)(c) and 95.11(3)(f) of the Florida Statutes. The court agreed and dismissed the City’s code enforcement hen foreclosure count with prejudice. We reverse because the statutes governing code enforcement hens provide that the City had twenty years from the date it recorded its lien to file its foreclosure suit.

Chapter 162 outlines the ways in which a local government can enforce code violations against violating property owners. One such way is to impose a fine. § 162.09(1), Fla. Stat. (2003). If the violator does not pay the ordered fíne, then the local government may record “a certified copy of an order imposing a fine” in the public records. § 162.09(3), Fla. Stat. (2003). The recorded order then becomes “a lien against the land on which the violation exists and upon any other real or personal property owned by the violator.” Id. If not paid within three months from the date of recording, the local government may “foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest.” Id. Section 162.10, titled “Duration of Lien,” provides, in pertinent part, that:

No lien provided under the Local Government Code Enforcement Boards Act shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action is commenced pursuant to s. 162.09(3) in a court of competent jurisdiction.

§ 162.10, Fla. Stat. (2003).

Thus, when read in conjunction with section 162.09(3), the plain language of section 162.10 establishes that a local government has twenty years from the date a code enforcement lien is recorded to file a lawsuit seeking to foreclose or recover a money judgment on the lien. This specific limitations period governs over any general limitations period contained in Chapter 96. § 95.011, Fla. Stat. (“A civil action or proceeding, called ‘action’ in this chapter, including one brought by the state, a public officer, a political subdivision of the state, a municipality, a public corporation or body corporate, or any agency or officer of any of them, or any other governmental authority, shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.”(emphasis added)).

Although the plain language implications of the statute of limitations as outlined in section 162.10 appears to be an issue of first impression, the above-outlined interpretation is consistent with the construction given to limitations periods contained in other lien statutes. For example, Florida’s Construction Lien Law contains a limitations section which is almost identical in structure to the one contained in Chapter 162. Section 713.22 is also titled “Duration of Lien” and, in pertinent part, states:

A lien provided by this part does not continue for a longer period than 1 year after the claim of lien has been recorded or 1 year after the recording of an amended claim of lien that shows a later date of final furnishing of labor, services, or materials, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.

§ 713.22(1), Fla. Stat. (2016). We have held that the plain language of this subsection creates a one year statute of limitations for filing a lawsuit to foreclose a construction lien. Privas v. Brisson Custom Homes, Inc., 817 So.2d 983, 984 (Fla. 4th DCA 2002). See also Pierson D. Constr., Inc. v. Yudell, 863 So.2d 413, 416 (Fla. 4th DCA 2003) (holding that more specific statute of limitations contained in chapter 713 controlled in construction lien foreclosure case as opposed to general limitations period outlined in Chapter 95). Employing this same logic to a reading of section 162.10, it is plain that the applicable statute of limitations for filing suit to foreclose a code enforcement lien is twenty years. The court erred in ruling otherwise.

Alternatively, Appellee argues that even if the City’s foreclosure suit was not barred by the statute of limitations, dismissal was proper. In addition to its foreclosure count, the City also sued Appellee for breach of contract. The City alleged that the parties entered into a settlement agreement whereby the City agreed to the conditional release of the code enforcement lien in exchange for Appellee’s perform-anee of certain conditions. Appellee asserts that the settlement agreement bars the City’s foreclosure count and, therefore, urges us to affirm under the “tipsy coachman” doctrine. We reject this argument because it was not raised in any fashion below. Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So.3d 866, 869 (Fla. 4th DCA 2012) (“The tipsy coachman doctrine does not permit a reviewing court to reverse on an unpre-served and unargued basis.”). Additionally, there is a fact question about whether the settlement agreement would act as a bar to the City’s foreclosure action. The agreement provides that the City will only execute and provide a “full release of all code enforcement liens” “upon the completion of demolition at the property and installation of ground cover.” The City alleged in its complaint that Appellee did not perform the aforementioned conditions. Thus, dismissal of the foreclosure count based on the settlement agreement would not have been appropriate at this stage in the litigation.

Reversed and remanded.

Gross and May, JJ., concur.


author: OSTERHAUS, J. WINSOR, J.,

text:
    OFFICE OF INSURANCE REGULATION, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    CASE NO. 1D16-2301
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017.

      Shaw P. Stiller, Chief Assistant General Counsel, and Elenita Gomez, Assistant General Counsel, Tallahassee, for Appellant.
    C. Sha’ron James, Insurance Consumer Advocate, and Jennifer M. Ferris, Chief Counsel, Tallahassee, for Insurance Consumer Advocate, Amicus Curiae in support of Appellant.
    Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for First Amendment Foundation, Inc., Amicus Curiae in support of Appellant.
    Tiffany A. Roddenberry and Karen D. Walker of Holland & Knight LLP, Tallahassee, for Appellee.
    Major B. Harding, Erik M. Figlio, and Ruth E. Vafek of Ausley & McMullen, Tallahassee, for Florida Chamber of Commerce, Inc., Amicus Curiae in support of Appellee.
   OSTERHAUS, J.

The Florida Office of Insurance Regulation appeals an order finding that State Farm Florida Insurance Company’s “QUASR data” meets the definition of trade secret under Florida law and is exempt from public disclosure. We affirm because the evidence supports the trial court’s conclusion.

I.

Section 624.424(10), Florida Statutes, requires insurers doing business in the State of Florida to file quarterly reports, known as QUASR reports, providing the following county-level data about its policies:

(a) Total number of policies in force at the end of each month.
(b) Total number of policies canceled.
(c) Total number of policies nonrenewed.
(d) Number of policies canceled due to hurricane risk.
(e) Number of policies nonrenewed due to hurricane risk.
(f) Number of new policies written.
(g) Total dollar value of structure exposure under policies that include wind coverage.
(h) Number of policies that exclude wind coverage.

In 2014, State Farm began filing its QUASR report with the Office on a diskette marked as confidential trade secret information. Aiming to keep its data confidential, its submission included a notice of trade secret as required by § 624.4213(1). After deducing that the Office intended to publicly release its QUASR data anyway, State Farm filed a complaint in circuit court seeking a declaratory judgment that its QUASR data constituted a trade secret exempt from Florida’s Public Records Act and an injunction to keep the Office from releasing it to the public.

State Farm’s complaint alleged that it wrote very limited new business from 2007 to 2014 and began writing additional new homeowners business in the first quarter of 2014. It claimed that the county-level data and information provided in its QUASR report was trade secret information that would allow competitors to identify where its business and marketing efforts were focused. The trial court ultimately held a non-jury trial in March 2016. Based on a statement of standards that the parties jointly submitted to the court, the trial court required State Farm to prove that its QUASR data (1) was information; (2) which derived independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (3) was the subject of reasonable efforts to maintain its secrecy. The trial court found that the only disputed prong was (2), whether State Farm’s QUASR data had actual or potential economic value. On this point, the court concluded from the evidence that State Farm satisfied the test. And it granted the relief that State Farm requested.

The Office now seeks reversal on appeal, arguing that State Farm failed to demonstrate that its QUASR data is a compilation of information that has independent economic value.

II.

A.

Florida has a broad public records policy providing “that all state, county, and municipal records are open for personal inspection and copying by any person.” § 119.01(1), Fla. Stat. But the Legislature has exempted trade secrets from the public records law. See § 815.045, Fla. Stat. According to the statute, this is because “the public and private harm in disclosing trade secrets significantly outweighs any public benefit derived from disclosure, and the public’s ability to scrutinize and monitor agency action is not diminished by nondisclosure of trade secrets.” Id.

Under section 688.002(4), “trade secret” is defined as:

[Ijnformation, including a formula, pattern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

§ 688.002(4), Fla. Stat. Likewise, section 812.081(c) defines “trade secret” as:

[Tjhe whole or any portion or phrase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. The term includes any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

§ 812.081(c), Fla. Stat.

Florida law specifically provides a mechanism for insurers and others filing documents with the Office to claim a trade secret:

If any person who is required to submit documents or other information to the office or department pursuant to the insurance code or by rule or order of the office, department, or commission claims that such submission contains a trade secret, such person may file with the office or department a notice of trade secret as provided in this section.

§ 624.4213(1), Fla. Stat.

B.

We review a trial court’s determination of whether specific information is a trade secret for competent substantial evidence. See Sepro Corp. v. Dep’t Envtl. Prot., 839 So.2d 781 (Fla. 1st DCA 2003) (holding that the trial court’s finding that documents at issue contained trade secrets “necessarily rests on factual determinations that are assailable on appeal only if unsupported by competent, substantial evidence”). Here, the evidence put forth in the trial court showed State Farm’s QUASR data to be a trade secret as defined by Florida law. As to the central issue here—whether State Farm demonstrated that its data possessed independent economic value to others—the testimony of multiple witnesses supported State Farm’s case. A State Farm executive testified, for instance, that a competitor could use the data “to see where we’re actively growing. And then go someplace else deriving economic advantage by not having to invest marketing money where they know they can’t advance.” Another State Farm witness testified that a competitor appeared to be using its QUASR data, which wasn’t available elsewhere, to supplement their rate making data. And an expert witness confirmed the view that the QUASR data is valuable to competitors. Competent, substantial evidence thus supports the trial court’s conclusion that State Farm’s QUASR data has independent economic value, or potential value at least, satisfying the statutory definition of a trade secret.

Finally, we affirm the trial court’s order denying the Office’s laches defense. The evidence indicated that State Farm wrote very limited new business from 2007 to 2014. And so, once State Farm began writing additional homeowners business again in 2014, new and different business importance (and value to competitors) attached to its QUASR data. Competent, substantial evidence also supports the trial court’s conclusion that the Office suffered no prejudice resulting from State Farm’s 2014 request for trade secret protection.

III.

Because the trial court’s findings rest on findings supported by competent substantial evidence, we affirm the trial court’s order.

AFFIRMED.

JAY, J., CONCURS; WINSOR, J., CONCURS WITH OPINION.

WINSOR, J.,

concurring.

Our decision turns on the statutory trade-secret definition, the trial court’s findings, and the evidence supporting those findings. We would depart from our proper role as judges if we considered more. We cannot be swayed, for example, by arguments that the trial court’s order ■will harm consumers, undermine transparency, or increase the Office’s administrative burdens. The Office and its supporting amici have expressed concerns on these points, but those concerns cannot help us decide what we are supposed to decide: whether State Farm proved that its data meets the statutory trade-secret definition.

The Legislature weighed the competing public policy interests at issue, the Legislature chose to exempt trade secrets from the public-records law, and the Legislature established the statutory trade-secret definition. State Farm presented evidence— including expert evidence—that its data met the Legislature’s definition, and the trial court found that State Farm met its burden. The trial court’s findings are supported by competent, substantial evidence, and so our job is to affirm. I therefore join the majority opinion.

      . The Office also argued on appeal that QUASR data is not a "compilation” of information that qualifies as a trade secret. See § 688.002(4), Fla. Stat, But it waived this argument below by conceding in its closing argument that it "agrees that QUASR submissions are [a] compilation of information.”

      . As the majority opinion explains, Florida statutes actually include multiple trade-secret definitions. Whether there is some category of data that meets one definition but not another, that is not an issue here. The Office framed its appeal around section 688.002(4)’s definition, and the parties stipulated as to the factors State Farm needed to prove to establish its data was entitled to trade-secret protection.

      . The constitution guarantees broad access to public records, but it also gives the Legislature limited authority to establish exemptions. See Art. I, § 24, Fla. Const. The Office has not challenged the Legislature’s authority to exempt trade secrets.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Adrea Vernique WILEY, Appellee.
    CASE NO. 1D15-858
    District Court of Appeal of Florida, First District.
    Opinion filed March 23, 2017.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Appellee pled no contest to multiple offenses arising out of a “road rage” incident that started when she and the victim exchanged words in a Whataburger drive-thru line. Appellee’s scoresheet reflected a lowest permissible sentence of 58 months in prison, but after a hearing at which Appellee and her psychologist testified, the trial court imposed a downward departure sentence of 11 months and 30 days in jail, followed by 10 years of probation. The court relied on section 921.0026(2)(d), Florida Statutes (2018), which authorizes a downward departure when the court finds that “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction ... and the defendant is amenable to treatment.”

The State appealed Appellee’s downward departure sentence. We affirmed on preservation grounds, see State v. Wiley, 179 So.3d 481, 482 (Fla. 1st DCA 2015), but the Florida Supreme Court quashed that decision, see State v. Wiley, 42 Fla. L. Weekly S149, 210 So.3d 658, 2017 WL 526510 (Fla. Feb. 9, 2017). On remand, we reexamined the record and the arguments presented in the parties’ briefs. We now affirm on the merits.

A trial court’s decision whether to impose a downward departure sentence is a two-step process. In step 1, the court must determine “whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it.” Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999) (emphasis in original). In step 2, the court must determine “whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068 (emphasis in original). In making the determination in step 2, the court must “weigh the totality of the circumstances in the case, including aggravating and mitigating factors.” Id.

In its initial brief, the State concedes that “Appellee met the requirements of Step One,” and it only challenges the trial court’s ruling on step 2. This ruling was a “judgment call within the sound discretion of the trial court,” id. and based on our review of the record, we cannot say that the trial court abused its discretion by imposing a downward departure sentence under the circumstances of this case. Id. (explaining that “[discretion is abused only where no reasonable person would agree with the trial court’s decision.”); see also Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (“Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.”) (quoting Delno v. Market Street Railway Co., 124 F.2d 965, 967 (9th Cir.1942)). Accordingly, we affirm Appel-lee’s sentence.

AFFIRMED.

WETHERELL, ROWE, and RAY, JJ., CONCUR.


text:
    Victoria A. REID, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-241
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2017
    Gregory W. Eisenmenger, of Eisenmen-ger, Blaue & Peters P.A., Viera, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Victoria A. Reid (“Petitioner”) petitions for issuance of a writ of prohibition to prevent her from being tried for aggravated battery with a firearm while inflicting great bodily harm. This case arose after Petitioner shot her husband, James Wesley Reid (“Reid”), in the leg during a domestic dispute. Petitioner argues that she is immune from prosecution pursuant to section 776.032, Florida Statutes (2016), commonly referred to as “Stand Your Ground.” This section provides in pertinent part that “[a] person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution,” § 776.032(1), Fla. Stat. (2016). Section 776.012, Florida Statutes (2016), further provides that “[a] person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself against the other’s imminent use of unlawful force.” § 776.012(1), Fla. Stat. (2016). There is no duty to retreat under these circumstances. § 776.012(1), Fla. Stat. (2016). Petitioner contends that she was in reasonable fear that Reid was reaching for a firearm when she shot him.

An evidentiary hearing was held regarding Petitioner’s Stand Your Ground immunity. The State called as its only witnesses Reid and the 911 operator who took the emergency call placed by Petitioner at the time of the shooting. In addition, the State introduced the tape of the 911 call. Petitioner was the only other witness who testified during the hearing. The evidence and testimony reveal the following facts. At the time of the shooting, Petitioner and Reid had been married for over fourteen years. For the first eight years of their marriage, Reid suffered from alcohol abuse issues. During this time, he engaged in multiple acts of physical violence against Petitioner. On several occasions, Reid held a firearm to Petitioner’s head. Reid became sober for five years but began to drink again shortly before the shooting occurred. Petitioner testified that Reid’s resumption of drinking frightened her.

Petitioner and Reid kept firearms in every room of their home, including one under the cushion of the love-seat in the living room and one in a wooden case on the coffee table. On the evening in question, Petitioner and Reid entered into a discussion about their marriage that escalated into a heated argument. Reid reached in the direction of the love-seat cushion. Petitioner testified that he verbally threatened to shoot her and that she believed he was reaching for the gun to kill her.

Petitioner grabbed the firearm on the coffee table, which discharged and struck Reid in the leg. She testified that the firearm went off accidentally. Reid also testified that he believed the gun discharged accidentally because it had no safety. Petitioner immediately called 911. The transcript of the call reveals that Petitioner told the 911 operator, “My husband, he is injured. He threatened to shoot me and I shot him.”

Reid initially filed a petition with the trial court to prevent contact with Petitioner. However, he later testified that he believed Petitioner thought he was moving towards the firearm, although he was reaching for their dog. Reid stated that the shooting occurred solely because Petitioner feared he was about to harm her. For example, the record reveals that he was specifically asked, “Do you have any reason to believe that this incident occurred in any way other than a result of your wife’s fear that you were about to do bodily harm by threatening her?” Reid answered, “No.” He further testified that any statements he had made to the contrary were the result of the heavy pain medication he had been given following the shooting. Any statements Reid had previously made about the incident were not admitted into evidence at the hearing.

Despite the parties’ testimony, the trial court entered an order denying Stand Your Ground immunity to Petitioner. In the order, the trial court found that both Petitioner and Reid agreed in their testimony that Petitioner “believed [Reid] was reaching for a gun that was located near the parties” at the time Reid was shot. Nevertheless, the trial court concluded that the greater weight of the evidence presented at the hearing indicated that Petitioner shot Reid because of the argument rather than out of fear that he was reaching for a firearm.

We conclude that the trial court'erred in denying Stand Your Ground immunity to Petitioner because no factual disputes were raised in this case. See Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DGA 2008) (“[W]hen immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes.”). Both parties testified that Petitioner was afraid that Reid was reaching for a firearm when she shot him. They also testified that Reid had committed acts of domestic violence against Petitioner while he was under the influence of alcohol and that he had resumed drinking shortly before the shooting. The statements made by Petitioner during the 911 call were consistent with the testimony presented at the hearing and indicated that she believed Reid was about to shoot her.

Accordingly, because the evidence presented to the trial court at the Stand Your Ground hearing established that Petitioner reasonably believed that her conduct was necessary to defend herself against Reid’s imminent use of unlawful force and because there were no factual disputes regarding that issue, we grant the petition for writ of prohibition.

PETITION GRANTED.

SAWAYA, COHEN, and WALLIS, JJ., concur.


text:
    John Daniel CROSBY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4262
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    John Daniel Crosby, Lawtey, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 14, 2016, judgments and sentences in Case Nos. 2014-CF-2028, 2015-CF-38, 2015-CF-39, 2015-CF-59, 2015-CF-60, 2015-CF-61, 2015-CF-78, 2015-CF-79, 2016-CF-80, 2015-CF-81, and 2015-CF-82, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA and PALMER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    James T. AYERS, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3776
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    James T. Ayers, Jr., Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 9, 2015, judgments and sentences in Case Nos. 2013-CF-1014, 2014-CF-1562, 2014-CF-1613, 2014-CF-1614, 2014-CF-1624, 2014-1625-CF, 2014-1626-CF, 2014-CF-1627, 2014-CF-1628, 2014-CF-1629, 2014-CF-1631, 2014-CF-1633, 2014-CF-1634, and 2014-CF-1635, in the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    John E. TRAIL, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3648
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    John E. Trail, Jr., Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 2, 2015, judgments and sentences in Case Nos. 2013-CF-057944-A, 2014-CF-40763-A, 2014-CF-40764-A, and 2014-CF-42500-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., PALMER, WALLIS, JJ., concur.


text:
    Laura Kate ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3250
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Laura Kate Elliott’s conviction and sentence for violation of probation. With the benefit of counsel, Appellant admitted that she violated the terms of probation; however, the court’s order revoking her probation does not specify which conditions of probation she violated. Therefore, we remand the case to the trial court for the limited purpose of entering a written order specifying the conditions of probation Appellant violated.

AFFIRMED and REMANDED with instructions.

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


text:
    Julius MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3222
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    Julius Martin, Milton, pro se.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm Appellant’s judgment and sentences, but we do so without prejudice to Appellant to file a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(a)(5). See Abbas v. State, 53 So.3d 1207, 1208 (Fla. 5th DCA 2011) (affirming judgment and sentence following the trial court’s summary denial of the defendant’s motion to withdraw plea that was “devoid of factual allegations in support of the requested relief,” but without prejudice to the defendant filing “a timely, facially sufficient motion pursuant to [rule] 3.850”).

AFFIRMED.

SAWAYA, BERGER and LAMBERT, JJ., concur.


text:
    Brosnan Pearson HART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3050
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    James S. Purdy, Public Defender, and Sean K. Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Brosnan Pearson Hart (“Appellant”) correctly asserts, and the State agrees, that if he was indigent, he was entitled to the appointment of counsel to assist him in the preparation of a Florida Rule of Criminal Procedure 3.170 motion to withdraw his guilty pleas to attempted first-degree murder and robbery with a firearm. Appellant was represented by privately retained counsel at the plea hearing. The trial court confirmed during a thorough plea colloquy that Appellant understood the charges, that he had discussed the case with his counsel, and that he was freely and voluntarily pleading guilty. He was sentenced, as agreed, to two concurrent sentences of fifteen years in prison with a ten year minimum mandatory sentence for possession of a firearm, to be followed by ten years of probation.

Appellant’s privately- retained counsel moved to withdraw from representation twenty eight days after the sentencing hearing, and the motion was granted. On the same day counsel was permitted to withdraw, Appellant, then seventeen years old, drafted and mailed a motion to withdraw his guilty pleas. The record on appeal does not indicate that Appellant requested or was offered counsel. A hearing was held and the trial court denied Appellant’s pro se motion. The court also denied a subsequent motion to withdraw the guilty pleas.

Appellant argues and the State concedes that a rule 3.170 motion to withdraw plea is a critical stage of the proceeding, entitling the defendant to representation and assistance of counsel. Tipler v. State, 149 So.3d 1192, 1193 (Fla. 1st DCA 2014). An indigent defendant is entitled to the appointment of counsel. See e.g., Searcy v. State, 971 So.2d 1008, 1011 (Fla. 3d DCA 2008) (“Many courts have held, and we agree, that an indigent defendant has the right to court-appointed counsel to assist in the Sling of a [rule 3.170] motion.”). If counsel withdraws before a rule 3.170 motion is Sled, then counsel must be offered to an indigent defendant. Tipler, 149 So.3d at 1193. Although Appellant had privately retained counsel at the plea and sentencing hearings, the trial court appointed counsel to represent him on appeal. We remand this case to the trial court to determine whether Appellant was indigent during the time he filed, or could have timely Sled, a motion to withdraw his pleas. If the trial court determines that Appellant was indigent, it shall set aside its previous orders denying Appellant’s motions to withdraw his pleas, appoint counsel for the purpose of filing a motion to withdraw pleas should Appellant desire to so proceed, and conduct a new hearing on Appellant’s motion to withdraw his guilty pleas.

REVERSED AND REMANDED with instructions.

PALMER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: PER CURIAM. KELSEY, J., MAKAR, J.,

text:
    Camilla B. ZARZAUR, Petitioner, v. Joseph A. ZARZAUR, Jr., Respondent.
    CASE NO. 1D16-3454
    District Court of Appeal of Florida, First District.
    Opinion filed March 27, 2017

      James L. Chase and Hunter R. Higdon of James L. Chase & Associates, PLC, Pensacola, for Petitioner.
    Robert R. Kimmel, Pensacola, for Respondent.
   PER CURIAM.

Petitioner, Wife, seeks certiorari review of the trial court’s discovery order requiring her to disclose “all her records regarding treatment, diagnosis, care and medications from all her psychologists, psychiatrists, counselors, and medical doctors who have treated her for any mental health issues or prescribed pain medication or any mental health medications to her in the last seven (7) years.” The order also requires Wife to submit to deposition questioning and answer interrogatories with the same scope. We grant Wife’s Petition in part.

Certiorari Jurisdiction.

We have certiorari jurisdiction to review orders granting discovery that create a material injury not remediable on appeal and constitute a departure from the essential requirements of law. State, Dep’t of Children & Families v. B.D., 102 So.3d 707, 708 (Fla. 1st DCA 2012); Mullins v. Tompkins, 15 So.3d 798, 800 (Fla. 1st DCA 2009). Erroneous disclosure of medical records qualifies as irremediable harm. Scully v. Shands Teaching Hosp. & Clinics, Inc., 128 So.3d 986, 988 (Fla. 1st DCA 2014) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995); James v. Veneziano, 98 So.3d 697, 698 (Fla. 4th DCA 2012)).

Facts and Procedural History.

Upon filing for dissolution in 2012, the parties agreed to 50/50 timesharing of their minor child, born in 2008. The parties maintained 50/50 timesharing until February of 2015, when Husband initiated involuntary commitment proceedings against Wife under the Marchman Act, alleging Wife abused prescription drugs, had been under the influence of drugs or medications while driving their child, and had exhibited suicidal tendencies and episodes of violence. He simultaneously moved to suspend 50/50 timesharing, based on the Marchman Act proceeding and his allegations supporting it. The court gave him total parental responsibility, suspending Wife’s parenting time. After one day of Marehman Act evaluation, the examining physician’s report concluded there was “no documented abuse.”

Wife then moved to reinstate 50/50 time-sharing, which Husband opposed. Both parties consented to independent psychological evaluations pursuant to section 61.20 of the Florida Statutes. The trial court appointed an independent psychologist, who obtained medical/psychological and counseling records, interviewed Wife and Husband separately, administered written tests, conducted home visits, and interviewed the head of the child’s school. He completed a written evaluation addressing the statutory factors of the child’s best interests. § 61.13(3), Fla. Stat. He recommended that the child continue to live with Husband until the end of the 2016 school year pending an updated evaluation, but that Wife should be given more time with the child during that time.

After an evidentiary healing, the trial court gave Wife some supervised timeshar-ing with the child, but the parties continue to dispute the proper timesharing. In connection with the continued dispute, Husband sought disclosure of Wife’s mental health records, asserting that Wife had placed her mental health at issue. Wife’s counsel argued that Wife had not placed her mental health at issue in a claim or defense, and that the requested discovery was overbroad and improper. Further, Wife’s counsel argued that any issues had already been addressed by the independent psychological exam to which both parties had agreed, eliminating any basis for the broad discovery Husband requested. Wife’s counsel requested an evidentiary hearing and in-camera review of any other mental health documents to determine whether they should be produced.

The Order Under Review.

In the order under review, the trial court granted Husband access to Wife’s mental health records for the past seven years, not limited to those provided to the independent psychologist, and without requiring in-camera review. We quash this order in part.

(1) The Psychotherapist-Patient Privilege.

The parties agree that Wife has a psychotherapist-patient privilege under section 90.503(2) of the Florida Statutes as to confidential communications and records of mental health treatment or diagnosis. The issue is whether, and to what extent, it applies here. A court cannot set aside the privilege on the basis of “mere allegations of mental or emotional instability.” Oswald v. Diamond, 576 So.2d 909, 910 (Fla. 1st DCA 1991). Any invasion of the privilege must be limited to what is demonstrably necessary on the facts of each case. Further, where parenting is at issue, “[w]hat is relevant to the trial court’s determination regarding child custody is the parties’ present ability and condition.” Schouw v. Schouw, 593 So.2d 1200, 1201 (Fla. 2d DCA 1992) (emphasis added); see also Scully, 128 So.3d at 988-89 (requiring that discovery be limited to what is relevant and temporally related); O’Neill v. O’Neill, 823 So.2d 837, 840 (Fla. 5th DCA 2002) (holding waiver of privilege is evaluated based on what occurs “during a pending custody dispute”). Previous substance abuse problems and treatment, without more, are insufficient to invade the privilege. Koch v. Koch, 961 So.2d 1134, 1135 (Fla. 4th DCA 2007).

Here, the trial court did not appropriately limit the temporal reach of its order, even assuming the facts otherwise justified overcoming the privilege. Husband’s most recent motion requested only three years’ worth of discovery, but the court granted access to seven years’ worth of records, without explaining why. In further proceedings, the parties and the trial court must focus on Wife’s present parenting ability and fitness. If older records are pertinent to present ability, the trial court may order disclosure upon proper findings; but there must be some basis for doing so.

(2) Waiver.

Next, we consider whether Wife waived her psychotherapist-patient privilege. A court may deem the privilege involuntarily waived under extreme circumstances. In O’Neill, for instance, an involuntary waiver occurred when the court found the existence of a “calamitous event” after a mother threatened to kill herself and her children and then voluntarily committed herself to a psychiatric ward. 823 So.2d at 840. See also Miraglia v. Miraglia, 462 So.2d 507, 507-08 (Fla. 4th DCA 1984) (allowing testimony of former wife’s psychiatrist following wife’s suicide attempt undertaken while final judgment of dissolution was pending on rehearing); Critchlow v. Critchlow, 347 So.2d 453, 455 (Fla. 3d DCA 1977) (finding wife’s voluntary commitment for mental health treatment during custody dispute constituted waiver).

It appears the trial court either deemed the Marchman Act proceeding itself a “calamitous event,” or relied on Wife’s behavior before the Marchman Act proceeding as constituting the “event.” At this juncture we need not determine whether a course of past conduct can constitute a “calamitous event.” If and only if Husband adduces appropriately recent competent evidence of a genuine “calamitous event” could the trial court properly evaluate the existence of such an event as a potential involuntary waiver of Wife’s privilege, and then only after an evidentiary hearing.

(3) Effect of Independent Evaluation.

A separate issue is whether and to what extent Wife voluntarily waived her privilege by participating in the independent psychological evaluation contemplated in section 61.20 of the Florida Statutes. The independent evaluation process is intended to avoid the privilege-invasion that would result from disclosing past records. Leonard v. Leonard, 673 So.2d 97, 99 (Fla. 1st DCA 1996) (“[W]e reject the husband’s meritless assertion that both he and the independent examiner are entitled to take depositions and examine the records of mental health professionals who treated the wife and her son.”). See also Flood v. Stumm, 989 So.2d 1240, 1242 & n.1 (Fla. 4th DCA 2008) (noting that independent evaluation assists the trial court without invading psychotherapist-patient privilege) (citing Schouw, 593 So.2d at 1201). Although the independent valuation process is intended to avoid disclosure of past records, records that the parties voluntarily give the independent evaluator lose their privileged status. See McIntyre v. McIntyre, 404 So.2d 208, 209 (Fla. 2d DCA 1981). Likewise, the parties’ communications to the evaluator are not privileged. § 90.503(4)(b), Fla. Stat.

Consistent with these principles, the parties agreed that both of them could discover records furnished to the independent psychologist, subject to protective order against outside disclosure or dissemination. They also agreed they would have the right to depose the independent psychologist, which the law allows. Kern v. Kern, 333 So.2d 17, 20 (Fla. 1976); see also Hill v. Hill, 371 So.2d 573, 575 (Fla. 1st DCA 1979) (applying Kern to child custody evaluation prepared by authorized state agency). Because of the parties’ agreement to provide records to the independent psychologist, and their failure to object to the scope of the order giving the psychologist access to records, we deny Wife’s petition insofar as the trial court’s order granted Husband access to records actually provided to the independent psychologist.

The trial court erred, however, in failing to limit disclosure of the parties’ records to those produced to the independent psychologist. This was a departure from the essential requirements of law because it improperly invaded Wife’s privilege. In further proceedings, the trial court may not allow disclosure of Wife’s privileged information without determining whether specific information is within the scope of the waiver resulting from Wife’s agreement to disclose records to the independent psychologist. Any disclosures beyond what Wife agreed to provide the independent psychologist may be ordered only upon a record of competent, appropriately relevant, and timely evidence showing an actual or involuntary waiver by the Wife within the meaning of the relevant authorities.

(4) In-Camera Review Required.

Florida courts consistently require in-camera review of medical records so the trial court can ensure that only relevant, timely documents are disclosed; and in this context, that only non-privileged documents or documents as to which the privilege has been waived are disclosed. Such an in-camera review is mandatory. Scully, 128 So.3d at989 (requiring in camera review); James, 98 So.3d at 698 (“[W]hen a party challenges a discovery order concerning material to which the party asserts his or her constitutional right to privacy, the trial court must conduct an in camera examination to determine the relevance of the materials to the issues raised or implicated by the lawsuit.”) (emphasis added) (citing Bergmann v. Freda, 829 So.2d 966, 967 (Fla. 4th DCA 2002)); Barker v. Barker, 909 So.2d 333, 338 (Fla. 2d DCA 2005) (finding departure from essential requirements of law by not holding in camera inspection of broad grant of medical records discovery). No documents may be disclosed to Husband or his counsel until after the trial court makes the required in-camera inspection to determine that every document disclosed is relevant, timely to the issue of Wife’s then-present fitness as a parent, and either not privileged or within a valid waiver of Wife’s privilege.

Order QUASHED.

WINSOR, J., CONCURS; KELSEY, J., CONCURS SPECIALLY WITH OPINION and MAKAR, J., CONCURS IN PART, DISSENTS IN PART WITH OPINION.

KELSEY, J.,

concurring specially with opinion.

I write separately to encourage the parties and the trial court to advance this case to disposition expeditiously and with due concern for the impact that continued litigation has on everyone involved, particularly the child. This case, like too many others involving similar issues, has languished far too long. The parties’ minor child was three years old when the dissolution action was filed, and will turn nine shortly after the opinion is released. Yet the principal issues relating to the marriage, time-sharing, finances, and property distribution remain unresolved. The very pendency of litigation and accompanying discovery, hearings, and disputes, is good for no one (except potentially for generating attorney fees).

The best interests of the child are paramount. § 61.13(3), Fla. Stat. (2016) (“[T]he best interest of the child shall be the primary consideration.”). It appears this child has never been aware of a time when her parents were not embroiled in this ongoing tug of war, and she cannot have any memory of a time when she had anything resembling a normal relationship with her mother—in spite of the fact that the independent psychologist rendered an official report over a year ago recommending that the maternal relationship be substantially expanded and strengthened. Two mental health care professionals who evaluated Wife noted that marital discord, the dissolution proceeding itself, and deprivation of timesharing with her child have contributed substantially to Wife’s stress levels, which she described as “unbelievably” stressful and “beyond words.” Especially in cases where there may be an imbalance of emotional strength as well as of finances, care should be taken to avoid prolonging disposition unnecessarily.

MAKAR, J.,

concurring in part, dissenting in part.

At issue is a discovery order requiring that Camilla B. Zarzaur disclose “all her records regarding treatment, diagnosis, care and medications from all her psychologists, psychiatrists, counselors, and medical doctors who have treated her for any mental health issues or prescribed pain medication or any mental health medications to her in the last seven (7) years.” The order arises in this dissolution/time-sharing dispute due to the need to determine whether Ms. Zarzaur has the ability to resume greater visitation with her daughter or return to the custodial arrangement in place before court orders were entered curtailing her contact with her daughter based on judicial findings that she posed the potential for harm to herself and others arising from substance abuse and mental health issues. Ms. Zarz-aur asks that we grant her petition and quash the trial court’s order, which should be done in only one limited respect. Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838, 844 (Fla. 2001) (On certiorari review, our role is “to halt the miscarriage of justice, nothing more,” leaving the parties to proceed thereafter as if “the order reviewed not been entered.”) (citation omitted).

The trial court’s order extends to seven years of records, but Mr. Zarzaur initially requested only three years and later made the duration unlimited. No basis in the record exists for a durational limit of seven years (which appears to coincide with the child’s age) or beyond, though an adequate basis exists for the three-year period initially sought, during which much occurred relative to the Ms. Zarzaur’s fitness. For this reason, the order should be quashed to the extent that it requires disclosure of records that existed more than three years before the date of the order (excepting out those provided to the independent psychologist), leaving open whether a greater duration is justifiable upon an adequate showing of need.

But that is the extent to which relief is justified because the record establishes that Ms. Zarzaur’s self-destructive behavior has placed her mental health and substance abuse at issue in determining what degree of parental responsibility she is capable of achieving, thereby implicitly waiving her statutory privilege in the documents requested. O’Neill v. O’Neill, 823 So.2d 837, 841 (Fla. 5th DCA 2002) (statements and behavior of parent can collectively “constitute a calamitous event and support an implicit waiver of the statutory privilege”); see also Critchlow v. Critchlow, 347 So.2d 453, 455 (Fla. 3d DCA 1977) (holding waiver of patient-psychiatrist privilege where former wife was voluntarily committed for mental health treatment and mental health was vital to a proper determination of custody); see generally Bruce G. Borkosky & Mark S. Thomas, Florida’s Psychotherapist-Patient Privilege in Family Court, Fla. B.J., May 2013, at 35, 36 (providing examples of waiver of privilege where spouse was “too emotionally distraught to enter into a settlement agreement,” where “information sought relates directly to the well-being of the child or to the parent’s ability to adequately care for the child, and the child may be in danger,” or where a “calamitous event has occurred, such as an attempted suicide”).

The record reflects a prolonged series of troubling events such as a suicide threat, prescription drug abuse, full-time illegal marijuana use, endangering her child due to reckless and dangerous acts such as nodding off while driving on a bridge, neglecting her child’s needs at school and allowing truancy, having a live-in boyfriend in violation of the parenting plan, alleging incapacity from use of Lunesta® in entering the settlement agreement, and so on. Her friends, the nanny, a boarder, and others unvaryingly testified that these types of major problems exist, which supported judicial intervention to protect her children and a waiver of her privilege in the requested mental health and medication records. That the Marchman Act proceeding, standing alone, didn’t result in confirmed substance abuse doesn’t negate the substantial evidence establishing mental health or substance abuse problems.

And Ms. Zarzaur’s behavior is not just affecting her child with Mr. Zarzaur. In a parallel proceeding, before another circuit judge, the same story is playing out as to her older child from a previous marriage, who lives with her; the two proceedings are mirror images of one another. Based on Ms. Zarzaur’s serious problems, the trial judge in that case has taken much the same steps as in this case to shield Ms. Zarzaur’s children from her. The sad reality is that the oldest child appears to be the “adult in the room,” raising the mom and sheltering her from a further downward spiral. The trial judge in this case was very aware of the evidence and rulings in the parallel case, and was and continues to be in a superior position to determine the extent to which Ms. Zarz-aur’s ongoing behavior justifies release and review of records related to her mental health and substance abuse (subject to the protective order that was entered). On the current record, it is plain that the discovery sought is germane and potentially critical in determining the' extent to which Ms. Zarzaur can undertake a greater role in her children’s upbringing.

The trial court held an evidentiary hearing but didn’t make an explicit finding that the series of disquieting events individually or collectively crossed the threshold and became “calamitous,” thereby supporting a broad waiver and scope of discovery. In this regard, Ms. Zarzaur makes the point that appellate review is made difficult without explicit factual findings that a calamity exists, which is true. Perhaps judicial hesitancy exists to conclude that a “calamitous event” has occurred due to its stigma on the parent; but, the counterpoint is that the situation in this case is little different from that in O’Neill, which involved substance abuse, ideations of suicide, mental health problems, and related factors that compromised the children’s safety and well-being and impliedly waived the parent’s privilege in the records sought. 823 So.2d at 839-41. In that case, the Fifth District concluded that the wife’s “statements, when joined with appropriate supporting behavior, as here, constitutes a calamitous event and support an implicit waiver of the statutory privilege. A trial court is not required to wait until a calamitous event becomes a tragedy.” Id. (Emphasis added). As in this case, “there was additional testimony demonstrating that [the parent] was unable to function as a properly nurturing parent” and that “she had driven a motor vehicle when she was apparently intoxicated with one of her children as a passenger.” Id. at 841. Though not identical, the two situations are nearly bookends, justifying the discovery order below.

Present fitness to parent is a function of the totality of all relevant information, including records of mental health and substance abuse from the recent past, provided a showing is made as to how they contribute to understanding present fitness. The Second District highlighted this point in Schouw v. Schouw, 593 So.2d 1200, 1201 (Fla. 2d DCA 1992), saying that “[w]hat is relevant to the trial court’s determination regarding child custody is the parties’ present ability and condition,” but saying in the next sentence that “[tjhere was no showing by the wife that the husband’s prior psychological records would contribute to such a determination.” Id. In sharp contrast to Schouw, the three-year window of records and the testimonial evidence here show an interwoven pattern of distressing conduct that contributes to the determination of the “present ability and condition” to parent. The trial court is required to weigh all relevant evidence in making this judgment, discounting what doesn’t contribute to an accurate prognostication of current fitness; but it is not required to wear judicial blinders.

      . The Marchman Act permits involuntary commitment and assessment for substance abuse issues. See generally §§ 397.301, .601, .675, Fla. Stat (2016).

      . Section 61.20 authorizes the court to order a "social investigation and study” in actions where the parents cannot agree on a parenting plan, to gather relevant facts and make recommendations to the court. The court may consider the report and recommendations and may order additional study if the court determines that the investigation and study are insufficient. § 61.20(1), Fla. Stat.

      . The trial court also entered a protective order, prohibiting dissemination or publication of any records produced, which we approve.

      . Husband also asserted that Wife waived her privilege by attempting to set aside the parties’ settlement agreement for incapacity from an adverse reaction to Lunesta, which she had been prescribed and had taken before signing the agreement. Wife sought only to set aside the financial terms of that settlement, not putting her reaction to Lunesta at issue in relation to timesharing.


author: WINSOR, J.

text:
    Gregory Edward WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1807
    District Court of Appeal of Florida, First District.
    Opinion filed March 27, 2017.

      Andy Thomas, Public Defender, and W. C. McLain, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, for Appellee.
   WINSOR, J.

Gregory Williams appeals his first-degree murder conviction and his resulting life sentence. He raises only one issue on appeal, claiming the State’s closing argument deprived him of a fair trial. More specifically, he argues that the State’s argument comparing him and his codefen-dants to “a pack of wolves” crossed the line and resulted in fundamental error. We reject this claim.

I.

In March 2013, emergency workers responded to an apartment fire and found an unconscious woman on the floor. The woman had severe burns and also suffered “obvious blunt force trauma to her head.” She was pronounced dead at the scene.

An investigation led police to Williams. Williams admitted his involvement, but he told police that his friend forced him to go to the victim’s apartment and help with the killing. Williams explained that once at the apartment, he put the victim in a choke-hold, and he and the friend wrestled the victim to the ground. Williams said he, the friend, and a third person then began beating the victim with a hammer, a pipe, and a crowbar. Then, Williams said, the friend lit the victim’s bed on fire.

The jury convicted Williams of first-degree murder but acquitted him of arson. It did so after hearing the following argument during the State’s closing, which Williams argues deprived him of a fair trial:

Anthony Pressley, Kiesha Pugh, [and] Gregory Williams[] all went to [the victim’s] apartment like a pack of wolves. And when [the victim] opened the door and let them inside her home, this defendant, Gregory Williams, pounced on her like prey. He grabbed her in a chokehold when she turned her back, and as she said, why are y’all doing this to me, she was wrestled to the ground, she was beaten repeatedly, and she was murdered viciously. And then her home was set on fire as the three of them scurried off into the night unaware that they were on video surveillance.

This is the entirety of the comment that Williams claims warrants a new trial. He identifies no other part of the closing argument that he considers improper, and he identifies no other asserted error below.

II.

“It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness.” Gore v. State, 719 So.2d 1197, 1201 (Fla. 1998). Accordingly, courts have frequently found arguments referring to defendants as animals to be improper. See, e.g., Carroll v. State, 815 So.2d 601, 622 (Fla. 2002) (finding it improper to refer to defendant as a “creature that stalked the night”); Bullard v. State, 436 So.2d 962, 963 (Fla. 3d DCA 1983) (finding it improper to refer to defendant as “this creature, this thing”); Blunt v. State, 397 So.2d 1047, 1048 (Fla. 4th DCA 1981) (finding it improper to refer to defendant and state that “[a]nimals belong in cages”); cf. also Fabregas v. State, 829 So.2d 238, 241 (Fla. 3d DCA 2002) (suggesting that it was improper to refer to defendant’s experts as a “wolving pack of wolves what attack cases as a team [sic]”).

But it is not enough for Williams to argue the comments were improper. He did not object below, meaning his burden now is to show the comments rose to the level of fundamental error. Salazar v. State, 188 So.3d 799, 821 (Fla. 2016). As courts regularly note, “[fjundamental error is 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.’ ” Id. at 822 (quoting Card v. State, 803 So.2d 613, 622 (Fla. 2001)). In some instances, a prosecutor’s argument can be so prejudicial that a court will find fundamental error and award a new trial. See Reynolds v. State, 580 So.2d 254, 256 (Fla. 1st DCA 1991) (concluding that “prosecutor’s racial comments, which focused on the crucial issue of consent and improperly injected the issue of race into the prosecution, were so egregious and so pervasive” that they resulted in fundamental error); Peterson v. State, 376 So.2d 1230, 1231 (Fla. 4th DCA 1979) (holding that “prosecutor’s final argument to the jury was so thoroughly and pervasively improper that it” resulted in fundamental error). But a single, isolated reference to a “pack of wolves” is not enough to meet this daunting standard. Cf. Salazar, 188 So.3d at 822 (“[W]hen considered against the weight of all the other evidence presented, the comments ‘ “did not go to the heart of the case” [and] were not critical to the jury’s verdict.’”); cf. also Carroll, 815 So.2d at 622 (“[T]he prosecutor’s isolated comments were not as egregious or cumulative in scope as in cases where this Court has found fundamental error.”). Williams’s judgment and sentence are therefore AFFIRMED.

RAY and MAKAR, JJ., CONCUR.

       Anthony Pressley was the friend to whom Williams referred in his confession. Kiesha Pugh was the third person Williams’s confession implicated.


text:
    Cheryl H. MORRISON, Appellant, v. BRANCH BANKING AND TRUST COMPANY, Capital One Bank, NA, United States of America, Appellees.
    Case No. 5D16-1683
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 28, 2017
    Benjamin C. Haynes and Daniel de Paz, of Haynes & de Paz, P.A., Longwood, for Appellant.
    A. Lee Bentley, III, United States Attorney and David P. Rhodes and Holly L. Gershow, Assistant United States Attorneys, Tampa, for The United States of America, Department of Agriculture, Ap-pellee.

      A. Lee Bentley, III, United States Attorney and Roberta Josephina Bodnar, Assistant United States Attorney, Orlando, for The United States of America, USDA Rural Development, Appellee.
    No appearance for other Appellees.
   PER CURIAM.

AFFIRMED. United States v. Summertin, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 L.Ed. 1283(1940).

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


text:
    William R. RUPP, Petitioner, v. HMC ASSETS, LLC, in its Capacity as Separate Trustee of Cam X Trust, Respondent.
    CASE NO. 1D16-3748
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017
    Claire Cubbin of Claire Cubbin, Esq., Fort Lauderdale, for Petitioner.
    Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for Respondent.
   PER CURIAM.

Through his August 19, 2016 emergency petition for writ of mandamus, William Rupp sought to halt a trial set for August 25. According to the petition, the action was not “at issue” because pleading issues remained outstanding. Accordingly, Rupp argued, the trial court violated Florida Rule of Civil Procedure 1.440 by setting the case for trial.

Shortly after Rupp filed his petition, and several days before the scheduled trial, this court’s motions panel issued an order staying the trial pending resolution of Rupp’s petition. The stay effectively removed the case from the August- 25th docket, which is all the petition sought. At this point, there is nothing to do but dismiss the petition as moot.

DISMISSED.

OSTERHAUS, JAY, and WTNSOR, JJ., CONCUR.


text:
    R & S EXCAVATION, INC., Petitioner, v. Debbie EDDLEMAN, Respondent.
    CASE NO. 1D16-3951
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.
    Steven E. Oole of Johnson & Oole, LLC, Tallahassee, for Petitioner.
    Tyler B. Everett of Morgan & Morgan, Tallahassee, for Respondent. .
   PER CURIAM.

Because the petition fails to demonstrate the requisite “irreparable harm” not remediable on postjudgment appeal, the petition for writ of certiorari is dismissed for lack of jurisdiction. See F.T.M.I. Operator, LLC v. Limith, 140 So.3d 1065, 1066 (Fla. 1st DCA 2014).

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


text:
    EVERGREEN COMMUNITIES, INC. and Palafox, LLC, Appellants/Cross-Appellees, v. PALAFOX PRESERVE HOMEOWNERS’ ASSOCIATION, INC., a Florida Corporation, Robert N. Braswell and Wynona C. Braswell, Appellees/Cross-Appellants.
    CASE NO. 1D16-3367
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    W. Douglas Hall and James Parker-Flynn of Carlton Fields, Tallahassee, for Appellants/Cross-Appellees.
    Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for Appel-lees/Cross-Appellants.
   PER CURIAM.

Appellants, Evergreen Communities Inc. and Palafox, LLC, challenge a final summary judgment in which the circuit court found that a declaration of covenants and restrictions limits the use of appellants’ land to commercial use. Appellees, who are the Palafox Preserve Homeowners’ Association and individual homeowners Robert and Wynona Braswell, filed a cross-appeal challenging other issues. We affirm the issues on cross-appeal without discussion. However, we reverse the final summary judgment because the record contains disputed issues of material fact that cannot be resolved on summary judgment.

The standard of review of a final summary judgment is de novo. Bowman v. Barker, 172 So.3d 1013, 1014 (Fla. 1st DCA 2015). “A summary judgment proceeding is not a trial by affidavit or deposition.” Id. at 1015. “The movant must demonstrate conclusively that no genuine issue exists as to any material fact, and the court must draw every possible inference in favor of the party opposing summary judgment.” Id. “‘A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.’ ” Id. (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)).

“[Rjestraints [on the use of real property] ‘are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.’ ” Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015), reh’g denied (Feb. 20, 2015) (quoting Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003)). “In construing restrictive covenants the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant.” Wilson, 839 So.2d at 930 (quoting Thompson v. Squibb, 183 So.2d 30, 32 (Fla. 2d DCA 1966)). If a restrictive covenant is ambiguous, parol evidence regarding the developer’s intent is material. Barnett v. Destiny Owners Ass’n, Inc., 856 So.2d 1090, 1092 (Fla. 1st DCA 2003). A statement in a restrictive covenant explaining that certain restrictions are intended to “‘facilitate’ a particular development and use” is insufficient to restrict the future use of the property to that particular development and use; instead, such a statement “does nothing more than explain why the enumerated restrictions were imposed.” Orlando Lake Forest Joint Venture v. Lake Forest Master Cmty., 105 So.3d 646, 648 (Fla. 5th DCA 2013).

Here, we find language in the declaration of covenants and restrictions that expressed the developer’s personal intent to develop the property for commereial use is ambiguous as to whether the developer intended to create a restriction on the property such that it could only be used for commercial purposes. Appellants submitted an affidavit in which the developer stated that he did not intend to create a restriction on use. The trial court rejected this assertion as “disingenuous.” However, we find this affidavit was parol evidence that created a disputed issue of material fact as to the developer’s intent, which is paramount in interpreting a land use restriction. Because disputed issues of material fact remain, we reverse the final summary judgment and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.