text:
    Holloman v. State
    4D14-2592
    12/08/2016
   Aff.

Cir, Ct. (Bro-ward)


source: Caselaw Access Project

license: Public Domain

text:
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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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text:
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    12/06/2016
   Aff.

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    12/06/2016
   Aff.

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text:
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    12/06/2016
   Aff.

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text:
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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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   Aff.

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text:
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    5D16-1996
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   Aff.

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text:
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   Aff.

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   Aff.

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   Aff.

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text:
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   Aff.

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text:
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    5D16-264
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   Aff.

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text:
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    5D16-3540
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   Aff.

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text:
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   Aff.

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   Aff.

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text:
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   Aff.

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text:
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   Aff.

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text:
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   Aff.

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text:
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   Aff.

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   Aff.

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author: Levine, J.

text:
    Brian Kelly FLAHERTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4777
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]

      Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

In this case, we are confronted with facts that are highly unusual to say the least. In this case, an assistant state attorney assigned to appellant’s case filed a criminal information, offered appellant a plea deal, and provided discovery. Later in the same exact case, under circumstances not fully developed in this record, the very same prosecutor became appellant’s defense attorney at trial. Only after appellant was convicted, but before sentencing, did appellant bring this apparent conflict situation to the attention of the trial court.

Thus, we are confronted with the following issue: does the fact that appellant’s defense attorney was originally the prosecutor on the very same case require a reversal. We decline to adopt a “per se” rule, and And that although this factual situation presents, at least facially, a situation prompting possible ethical concerns, that nonetheless, we must make a determination on a case-by-case basis of whether appellant’s counsel labored under an actual conflict of interest. As to the present case, we find that the record before us does not support a finding that any potential conflict adversely affected trial counsel’s performance. Thus, we affirm.

Appellant was charged by criminal information with burglary of a dwelling, third-degree grand theft, dealing in stolen property, and several counts of giving false information to a pawnbroker. This criminal information and a subsequent amended information were signed by an assistant state attorney. This particular prosecutor also signed several filings on behalf of the state, including a demand for notice of alibi, three supplemental aijswers to appellant’s request for discovery, and finally, a conditional plea offer of fifteen years in prison. This prosecutor appeared in court on behalf of the state on this case for two hearings. Appellant apparently was not at either of the two hearings, which included a calendar call.

This prosecutor stopped appearing on behalf of the state on April 18, 2014, when another prosecutor began submitting filings on behalf .of the state. On April 16, 2015, previous private counsel withdrew from representing appellant, and the very same prosecutor, now a former prosecutor, who filed the information against appellant was retained as appellant’s new private counsel. As .appellant’s new counsel, she announced that she was ready to go to trial and did not inform the court of her prior prosecutorial role.

At trial, there was testimony that the victim, appellant’s sister, told police she had come home to find it in disarray with the window to her bedroom broken. Many of her personal belongings were also missing. The victim speculated that the perpetrator was her brother, appellant. Law enforcement found much of the victim’s missing property at pawnshops, and surveillance footage and testimony of the pawnshop employees identified appellant as the one who had pawned the victim’s property. The victim’s missing property was also found at a hotel where appellant was staying. At trial, however, appellant’s sister said she was mistaken when she initially accused appellant of stealing from her. The state introduced tapes of appellant admitting to stealing from the victim. In. these tapes, .appellant also encouraged the victim to lie on his behalf.. Appellant was found guilty of all charges.

After being found- guilty, appellant moved to discharge his counsel, believing that she did an inadequate job in his case. In appellant’s motion to discharge, appellant stated that he “has become aware that [his attorney] was also his prosecutor in the instant case which is now before the court.” Appellant then moved for a mistrial based on this conflict. At a subsequent hearing, appellant’s counsel stated that she could not “ethically” represent appellant any longer. After a Faretta hearing, the trial court found appellant competent to represent himself, and appellant, acting pro se, moved for a mistrial. The trial court took the motion for mistrial “under advisement.”

At sentencing, appellant moved to discharge his new counsel, a public defender, claiming that the public defender was doing an inadequate job. The trial-court proceeded with sentencing and did not rule on appellant’s prior motion for a mistrial nor was it brought up by his public defender. Following his conviction and sentence, appellant’s appeal ensued.

Appellant argues on appeal that trial counsel was ineffective. Since this is a direct appeal, trial counsel’s conflict of interest thus must appear on the face of the record. Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002). We therefore conduct a de novo review of the record. See Curtis v. State, 204 So.3d 463, 464 (Fla. 4th DCA 2016).

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel and representation free of conflict. Quince v. State, 732 So.2d 1059, 1064 (Fla. 1999). When determining whether counsel’s representation was free of conflict, we apply the conflict of interest test as annunciated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The Florida Supreme Court has described the Cuyler test as follows:

[I]n order to establish an ineffectiveness claim premised on an alleged, conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; see also Quince v. State, 732 So.2d 1059, 1065 (Fla. 1999). A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. To demonstrate an actual conflict, the defendant must identify specific evidence in the record thát suggests that his or her interests were compromised. See Herring v. State, 730 So.2d 1264, 1267 (Fla. 1998), A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. If a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer’s representation.

Hunter v. State, 817 So.2d 786, 791-92 (Fla. 2002).

Thus, the test from Cuyler, as applied in Hunter, requires appellant to demonstrate, first, that an actual conflict existed and, second, that the conflict adversely affected the attorney’s perform-anee. Even if we assume that the facts of this case, where the attorney worked as both a prosecutor and defense counsel on the very same case, met the first prong of Hunter, appellant has failed to demonstrate that “the conflict adversely affected the lawyer’s representation.” Brown v. State, 894 So.2d 137, 157 (Fla. 2004). Appellant “must identify specific evidence in the record that suggests his interests were impaired or compromised for the benefit of the lawyer or another party.” Id. See also State v. Alexis, 180 So.3d 929, 937 (Fla. 2015). (“Some adverse or detrimental effect on the representation, however, is required in order to establish an actual conflict of interest.”); People v. Abar, 99 N.Y.2d 406, 410-11, 757 N.Y.S.2d 219, 786 N.E.2d 1255 (2003) (affirming where the record showed a former prosecutor’s “conflict did not operate on the defense”).

Since appellant is unable to identify a single instance where trial counsel’s prior participation as a prosecutor “adversely affected” or compromised her representation of appellant, appellant asks us to fore-go requiring a showing of adverse effects and to adopt a “per se” rule as annunciat-ed in United States v. Ziegenhagen, 890 F.2d 937 (7th Cir. 1989). In Ziegenhagen, the court stated that “government employment in a prosecutorial role against one defendant and subsequent representation of that defendant in a defense capacity is not proper.” Id. at 940. The court found there was an actual conflict and presumed that the prior representation prejudiced the defendant.

Cuyler and Hunter mandate that this court reject any proposed “per se” rule and instead require appellant to demonstrate that the conflict had an adverse effect on his attorney’s performance. As stated before, appellant must identify specific evidence in the record showing his interests'were compromised. See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; Hunter, 817 So.2d at 791-92. See also Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (holding the defendant must “establish that the conflict of interest adversely affected his counsel’s performance”).

Although appellant argues for adoption of a per se rule for his own benefit, interestingly Florida Bar Rule 4-1.11, governing the conduct of former public employees in the representation of a private client, states a lawyer “shall not otherwise represent a client in connection with a matter in which, the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” (emphasis added). The record before us does not indicate whether ■ the state attorney’s office consented to the former assistant state attorney’s representation of appellant on the same case in which she was the prosecutor. The comment to the rule states that the bar rule is intended to prevent a lawyer “from exploiting public office for the advantage of.another client.” Thus, the main thrust of this rule is to protect the public office and not necessarily the private client.

The Ninth Circuit, when considering the practice of switching sides by attorneys, stated that “[w]e by no means endorse the practice of switching sides in criminal cases; we merely hold that it does not necessarily create a conflict of interest for constitutional purposes, and that it did not in fact do so here. The practice may well raise serious ethical problems for practitioners.” Maiden v. Bunnell, 35 F.3d 477, 481 n.4 (9th Cir. 1994). Similarly, based on the record before us, we express no opinion as to the ethicality of the former prosecutor’s conduct in this case, but merely state that appellant did not meet the standard set in Cuyler and Hunter.

Finally, appellant argues that the trial court “knew or should have known” of the conflict and should have inquired further. The state responds that regardless, appellant must still demonstrate that conflict affected counsel’s performance. “When the claim is that the trial court failed to conduct an inquiry about a potential conflict which it knew or should have known about, the claimant must show that a conflict of interest affected counsel’s performance.” Alexis, 180 So.3d at 936. Once again, appellant can provide no evidence in the record that his trial attorney’s prior prosecutorial work in the same case impacted or affected her representation of him. In conclusion, based on Cuyler and Hunter, we affirm.

Affirmed.

Warner and Taylor, JJ., concur.

      . The grand theft count was nolle prossed before trial.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Although we assume the satisfaction of the first prong for the purposes of this opinion, , we note that McCaskill v. State, 638 So.2d 567 (Fla. 5th DCA 1994), presents somewhat similar facts to the present case yet did not find the prosecutor had a conflict of interest. In McCaskill, a post-conviction case, a prosecutor filed the original information and later came to represent the defendant. However, in that case, the prosecutor came to work for the defendant specifically at the defendant's request, Furthermore, the information was amended, and the former prosecutor-turned-defense attorney did not file the amended information.

      . This affirmance is without prejudice to appellant filing a timely motion for post-conviction relief.


author: Klingensmith, J.

text:
    Edna Louise BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-492
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Carey Haughwout, Public Defender, and 'Benjamin Eisénberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Edna Baker filed a pretrial motion for a hearing and appointment of an expert to evaluate her competency. The trial court thereafter entered an order appointing a doctor for an evaluation. Although Florida Rule of Criminal Procedure 3.210(b) requires a trial court to hold a competency hearing within twenty days of being presented with . reasonable grounds to question a defendant’s competency, appellant waived that requirement in her pretrial motion. Defense counsel never scheduled a competency hearing, and the record does not reflect that one was ever conducted. The case proceeded to trial, and appellant, was convicted of burglary of a dwelling and grand theft of a dwelling. Because the record does not show that there was a determination of appellant’s competency at the time of trial, we remand for further proceedings.

In the motion to evaluate competency, appellant’s counsel asserted there were “reasonable grounds to believe that [appellant] is incompetent to proceed,” The motion also stated that appellant “hereby waives the required 20 day hearing pursuant to Fla. R. Crim.= P. 3.210(b).”

Three days later, the trial court entered an order requiring the examination of appellant’s competency and an assessment of recommended treatment. The order appointed a doctor to examine appellant, and provided:

If the Doctor is appointed for the purpose of determining competency, pursuant to Fla. R. Crim. P. 3.210(b), a hearing shall [be] held within 20 days of the filing of this motion. The Defendant hereby waives this provision and shall schedule a competency hearing pursuant to the Florida Rules of Criminal Procedure should it become necessary, with notice to the State and Court.

(Emphasis in original). Without ever conducting a hearing on competency, the case was tried and appellant was convicted and sentenced to fifteen years in prison. This appeal followed.

Appellant asserts that the trial court reversibly erred by failing to conduct a competency hearing within twenty days of ordering a competency evaluation as required by Florida Rule of Criminal Procedure 3.210(b), despite appellant’s explicit waiver of such a, hearing in her motion for the evaluation..

The issue of “[w]hether the circuit court' fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review.” A.L.Y. v. State, 212 So.3d 399, 402 (Fla. 4th DCA 2017).

The procedure for determining a defendant’s competency is. outlined in Florida Rule of Criminal Procedure 3.210(b), which states:

(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall, immediately enter its order setting a time for a hearing to determine.the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state anti the defendant may be present at any examination ordered by the court.

Fla. R. Crim. P. 3.210(b) (emphases added). The mandatory language of the rule obligates courts to observe these specific competency hearing requirements to “safeguard a defendant’s due process right to a fair trial- and. to provide the reviewing court with an adequate record on appeal.” Bylock v. State, 196 So.3d 513, 514 (Fla. 2d DCA 2016) (quoting Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014)); see also Williams v. State, 169 So.3d 221, 223 (Fla. 2d DCA 2015) (“Under the plain language of rule 3.210(b), the terms ‘shall’ and ‘immediately’ reflect that a hearing is mandatory.”).

We find our decision in Deferrell v. State, 199 So.3d 1056 (Fla. 4th DCA 2016), to be analogous. Unlike appellant in this ease, competency evaluations were performed on the defendant, each finding that he was competent to proceed. Id. at 1061. Though the court set a date for the competency hearing, none was held and no discussion regarding the reports occurred on the record. Id. at 1060. Like the situation presented here, the court did not issue any order finding the defendant competent to proceed. Id. at 1061. On appeal, the State argued that the defendant waived his right to a hearing by not insisting on one, and that a hearing was unnecessary because the evaluations deemed him competent. Id.

We disagreed with the State’s arguments in Deferrell, reasoning:

The written reports are advisory to the trial court, which itself retains the responsibility of the decision. Under these circumstances a defendant may not waive his or her right to a competency hearing even if the experts unanimously find the defendant competent to proceed.
Two important details arise from this analysis. First, even if the evaluations unanimously agree that the defendant is competent, the court still must conduct a hearing. Second, in response to the State’s argument that [the defendant] waived his right to a hearing by not continuously requesting one ... even an express waiver of a hearing does not comport with the statute. It logically follows then, that an implicit waiver also would not serve to bypass the requirements of the statute.

Id. (internal citations and quotation marks omitted); accord Williams, 169 So.3d at 223.

The State’s arguments in Deferrell mirrored those made here. See also A.L.Y., 212 So.3d at 403 (reversing conviction due to the trial court’s failure “to hold a competency hearing and make an independent competency finding”). As in Deferrell and A.L.Y., we likewise find the State’s arguments to be unavailing. No matter the extent of appellant’s attempted waiver, “even an express waiver” of such a hearing cannot function to bypass or overcome the mandate of rule 3.210(b) requiring a trial court with reason to “believe that the defendant is not mentally competent to proceed” to hold a competency hearing within twenty days of the filing of the motion that prompted the competency evaluation (or of the court’s sua sponte evaluation order). Deferrell, 199 So.3d at 1060-61; see also A.L.Y., 212 So.3d at 403.

The appointed expert’s reports and findings are not included in the record, nor is there an indication that an evaluation by a physician was ever performed. Further, the trial court never conducted a competency hearing. If appellant’s competency was ever discussed in court prior to the trial’s commencement, or if the motion was ever withdrawn, such a discussion is not in the record. Even though appellant’s counsel clearly waived the rule 3.210(b) twenty-day hearing requirement in her motion for a competency evaluation, nothing indicates a complete waiver of the hearing itself was ever intended.

Although the record submitted to this court does not include a trial court order finding appellant competent or incompetent, the appellant’s mental health issues garnered notice from the court, who remarked at sentencing:

[W]ith this record twenty years is not unreasonable as a habitual felony offender. But I will say this—because I’ve had a chance to see [appellant] for some time now. And I don’t think this is one where she’s just recently concocted mental health issues in an effort to like malinger or avoid punishment. I think there’s been some longstanding issues here.

“There does not appear to be any discretion on the part of the trial court [to hold a competency hearing] once it makes the determination that there are reasonable grounds to believe that the defendant is not mentally competent.” Silver v. State, 193 So.3d 991, 993 (Fla. 4th DCA 2016) (quoting Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003)). “[A] trial court’s appointing experts to evaluate a defendant’s competency suggests there were reasonable grounds to do . so.” Id. When the court “has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.” Id. (quoting Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011)). Therefore, even without the trial court’s remarks at sentencing, its order granting counsel’s motion for a competency evaluation on its own compelled a competency hearing. Fla. R. Crim. P. 3.210(b).

The State asserts that if relief is warranted, a retroactive inquiry into appellant’s competency will suffice. We have seen no evidence in the record that would assist the court in making such a retroactive determination of the appellant’s competency at the time of her trial, as there exists no record that a contemporaneous evaluation was ever conducted. See Dougherty, 149 So.3d at 679 (holding that a nunc pro tunc competency evaluation is possible if “a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial” are available for a retrospective hearing (internal quotation marks omitted) (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986))); see also A.L.Y., 212 So.3d at 404.

Thus, on remand, if the court can make a nunc pro tunc finding as to appellant’s competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order. Presley, 199 So.3d at 1019; see also Frye v. State, 41 Fla. L. Weekly D2151, D2151, — So.3d -, -, 2016 WL 4944084 (Fla. 2d DCA Sept. 16, 2016) (“A nunc pro tunc competency witness cannot ... rely solely on a cold record.”). However, if the court finds, for any reason, that an evaluation of appellant’s competency at the time of trial cannot proceed in a way that ensures appellant’s due process rights, then the court should adjudicate her current competency and, if she is competent, conduct a new trial on all counts. A.L.Y., 212 So.3d at 404.

Based on the foregoing, we reverse and remand for a nunc pro tune competency determination, if it is possible under the circumstances. We find no merit in the other arguments raised by appellant on appeal, and affirm on those issues.

Affirmed in part, Reversed in part and Remanded with instructions,

DAMOORGIAN and GERBER, JJ., concur.

      . A full, formal competency hearing might not be required if ”[t]he parties ... stipulate to deciding competency based on the written expert reports rather than live expert testimony.” Rumph v. State, 217 So.3d 1092, 1095, 2017 WL 1372097 (Fla. 5th DCA Apr. 13, 2017). "A status hearing may constitute a sufficient competency hearing if the court reviews a written competency evaluation at the parties’ direction and makes an independent finding that the defendant is competent to proceed.” Presley v. State, 199 So.3d 1014, 1018 (Fla. 4th DCA 2016). However, "the defendant and the other parties may not stipulate to competency itself ... as the trial court must make an independent determination on the issue.” Rumph, 217 So.3d at 1095; see also Arnold v. State, 214 So.3d 739, 740 (Fla. 2d DCA 2017) (stating that while a “trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant’s competency, and must enter a written order if the defendant is found competent to proceed” (quoting Dougherty, 149 So.3d at 679)); B.R.C. v. State, 210 So.3d 243, 245 (Fla. 2d DCA 2017) ("A court's determination of competency may not be based on a stipulation of competence; the court must make its own independent determination, even where all of the experts agree that the defendant is competent.”).


author: Damoorgian, J.

text:
    Marybeth F. NEWMAN n/k/a Marybeth Farrell, Appellant, v. Jon Michael NEWMAN, Appellee.
    Nos. 4D14-4842, 4D15-0792, 4D15-1324
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Charles H. Burns, Tequesta, for appellant.
    Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca Raton, for appellee.
   Damoorgian, J.

In these consolidated appeals, Marybeth Newman (“Former Wife”) and Jon Newman (“Former Husband”) each challenge aspects of the final judgment dissolving the parties’ seventeen-year marriage (case no. 14-4842) and Former Husband challenges the court’s entry of separate money judgments for sums awarded in the final judgment of dissolution (cases no. 16-0792 and 16-1342). We find merit in Former Wife’s challenge to the court’s alimony determination as reflected in the final judgment of dissolution, and reverse-and remand for further proceedings. Finding no merit in the remaining arguments raised by the parties, we affirm the remainder of the final judgment of dissolution and ensuing money judgments without further comment,

The parties were married in 1995 and Former Wife filed her petition for dissolution of the marriage in August of 2012. During the course of the marriage, Former Husband operated several marine related family businesses and Former Wife was a stay-at-home mother. The parties enjoyed a comfortable middle-class lifestyle throughout the marriage, acquiring a house in a nice neighborhood and a 41’ custom-built boat with little debt. In her petition, Former Wife asked for temporary and permanent periodic alimony as well as child support for the parties’ minor , children.

From the inception of the dissolution proceedings, Former Husband was' less than cooperative in providing Former Wife with adequate discovery regarding the value of his business interests and income. This was especially true as it pertained to a boat-chartering business run by Former Husband, Dykoke Enterprises, Inc. In each of his financial affidavits, Former Husband claimed that he earned no income from the charter business and did not -assign a value to his- interest in the business. Despite Former Wife’s multiple requests for production as well as the trial court’s order compelling Former Husband to produce the requested records, Former Husband failed to produce invoices or adequate bank records relating to his charter business.

The case proceeded to trial wherein Former Wife testified that after filing for dissolution, she began working as a housekeeper and earned approximately $20,000 a year. Former Wife testified that' after factoring in the cash Former Husband earned from his charter business; Former Husband actually earned more than double what he was reporting in his tax returns and financial affidavits. She testified that over the last four years, Former Husband chartered an average of four trips a week and charged upwards of $1,000 per trip. Based on Former Husband’s representa-1 tions to her during their marriage, Former Wife believed Former Husband earned about $70,000 a year cash operating his charter business. She admitted that she did not have proof of this, but explained that it was because Former Husband, refused to provide her with the business and financial records she requested.

■ Former Husband’s forensic accountant, on the other hand, testified'that the only asset of Dykoke Enterprises, Inc. as of the date of Former Wife’s petition was a bank account containing $99. Although the -accountant was not provided with any tax returns for the company, he opined that Former-Husband did not earn any income from Dykoke Enterprises, Inc. and testified that Former Husband’s average annual income was around $66,660.- Former Husband testified that his charter business did not generate any revenue past the carrying costs for the boat. This was despite the fact that he admitted to having clients such as the Discovery Channel, National Geographic, the BBC, and the University of Miami who he charged $1,500 - $3,000 a day. :

Considering the evidence, the court denied Former Wife’s request for permanent periodic alimony. Although the court found that Former Wife had a need for alimony, it also found, after making a balancing payment and paying child support, Former Husband would not have enough liquidity or leftover income to pay alimony. The trial court found that Former Husband’s net monthly income for purposes of determining his ability to pay alimony was $4,325. In arriving at this figure, the court did not consider any income from Former Husband’s charter business, explaining that there was “insufficient proof’ of the amount. This was despite its findings that Former Husband’s testimony was “incredulous” and that the lack of proof was because “[Former] Husband did not provide in discovery the invoices or all of the bank statements necessary to determine the actual earnings of his charter boat business.” We hold that the court’s ability to pay determination was error.

Section 61.08, Florida’s alimony statute, provides that when determining the proper type and amount of alimony, the court must consider “[a]ll sources of income available to either party.” § 61.08(2)(i), Fla. Stat. (2012). The court must do the same when making a need and ability to pay determination. Mills v. Mills, 62 So.3d 672, 675-76 (Fla. 2d DCA 2011) (reversing and remanding an alimony determination because “the trial court did not include the value of the former husband’s business income or the value of in kind payments made on his behalf when it determined the former husband’s ability to pa/’); Smith v. Smith, 575 So.2d 228, 229 (Fla. 2d DCA 1991) (trial court erred when making its ability to pay determination by not considering all sources of income available to husband).

Section 61.046 broadly defines “income” as follows:

[A]ny form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.

§ 61.046(8), Fla. Stat. (2012).

“Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth.” Ugarte v. Ugarte, 608 So.2d 838, 840 (Fla. 3d DCA 1992). Thus, when the circumstances suggest that a self-employed spouse has not accurately reported his or her income, the court may properly assign a higher income value than that claimed by the spouse. See Child v. Child, 34 So.3d 159, 161 (Fla. 3d DCA 2010). This is especially true when the spouse fails to comply with discovery orders and does not disclose all pertinent financial information. See Nadrich v. Nadrich, 936 So.2d 15, 18 (Fla. 4th DCA 2006) (“Under the circumstances and in light of the husband’s failure to-'comply with many discovery orders to disclose his financial information, the court had no choice but to impute some amount of income to the husband beyond what his pay stubs showed.”).

Here, it was apparent from the record that Former Husband was earning some income from his charter business. Indeed, the trial court found that Former Husband’s claim to the contrary was “incredulous.” Although the actual amount of income earned was not established at trial, this was because of Former Husband’s wrongful conduct in failing to comply with Former Wife’s discovery requests and the court’s ensuing orders. Under these circumstances, it was error for the trial court not to consider Former Husband’s charter business income when making its alimony determination. Therefore, the case is reversed and remanded for a rede-termination by the trial court of Former Husband’s ability to pay alimony. Upon remand, the court should enforce its prior discovery orders. In the event Former Husband refuses to comply, the court should assign a value to his charter business income as equity requires.

Affirmed in part, reversed in part, and remanded.

Gerber and Forst, JJ., concur.


author: Kuntz, J.

text:
    Milton THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1466
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction and sentence of life imprisonment, a sentence imposed after he was found guilty on one count of carjacking with a firearm, three counts of robbery with a firearm, and a fifth count of possession of a firearm by a convicted felon.

He raises three issues on appeal, and we affirm without further discussion as to the first two. As for the third issue, we affirm, and write to distinguish the State’s comments during closing in this case, which are discussed below, from the comments made in the three cases upon which the Defendant relies. See Ruiz v. State, 743 So.2d 1 (Fla. 1999), Gore v. State, 719 So.2d 1197 (Fla. 1998), and Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014).

The Defendant challenges multiple comments the State made during its closing argument, arguing the court abused its discretion in overruling his objections to each. These statements include argument by the State that to accept the Defendant’s theory, you had to conclude that the officer “not only got all of that wrong, but so did the victims,” that the officer “was completely wrong in his entire testimony of this case,” and that the officer “completely made up his turn of events.” The State also noted during its closing argument that the Defendant is a “three-time convicted felon who’s also been convicted of lying, giving a false statement.” Finally, the State argued to the jury “that [this crime] was committed by someone who thinks that they can get away with anything.”

We find the comments in this case distinguishable from the comments made in the cases relied on by the Defendant.

In Ruiz, the prosecutor equated the defendant to Pinocchio. See 743 So.2d at 5. Later, during sentencing, she gave personal stories of her father, a physician and commander in the military during Operation Desert Storm, who was dying of brain cancer. Id, She equated her father’s “duty” to serve despite the hardships of dying of cancer'with that of the “duty” imposed on jurors to sentence defendant to “the ultimate sentence.” Id. at 6-7. Our supreme court found these comments “crossed the line of acceptable advocacy by a wide margin,” and stated:

This blatant appeal to jurors’ emotions was improper for a number of reasons: it personalized the prosecutor in the eyes of the jury and gained sympathy for the prosecutor and her family; it contrasted the defendant (who at that point had been convicted of murder) unfavorably with [the prosecutor’s] heroic and dutiful father; it put before the jury new evidence highly favorable to the prosecutor; it exempted this new evidence from admissibility requirements and from the crucible of-eross-examinar tion; and most important, it equated [the prosecutor’s] father’s noble sacrifice for his country with the jury’s moral duty to sentence [the defendant] to death.

Id. at 7, 9.

Similarly, in Gore, our supreme court classified the prosecutor’s behavior as “antithetical to his responsibilities as an officer of the court.” 719 So.2d at 1202. During cross-examination, the prosecutor stated on the record that “you know what, you’re right, I am [trying to kill you], because somebody who does what you do deserves to die." Id. at 1201 (emphasis supplied). The prosecutor also was described as engaging in “needless sarcasm” and remarked “Oh, Gore is a Jewish name? What did you have for Passover, a bunch of Matzo this year?" Id. (emphasis in original). Later, during closing argument, the prosecutor told the jury that “there’s a lot of things I can say or can’t say, but there’s one thing the Judge can’t ever make me say and that is he can never make me say that’s [the defendant ⅛] a human being.” Id. (emphasis added).

Crew also contains comments far more egregious than the comments during closing argument in this case. The comments in Crew include: “There isn’t a moralistic thing about the defendant. Not one.... Please. The defendant doesn’t- have a moralistic thing about him. Not one.... The defendant is nothing more than a hopeless old crack addict ....” Crew, 146 So.3d at 104-05, Later, the prosecutor stated that “this is a person who has a limitation on what’s wrong and what’s right? No. Not at all.” Id. In lieu of referring to the defendant by his name or defendant, the prosecutor used a different term, “crackhead,” stating: “[A]nd so that crackhead, that crackhead was all in .... [He] got high off of ten or 20, little pieces. He’s going to have ten times that in his room again. My God, imagine how high he’s going to be. His little crackhead eyes are going to glow.” Id. at 105.

Here, to the extent the Defendant challenges the State’s reference to his prior conviction, the Defendant himself testified about his prior convictions during this trial. No new facts were introduced during closing as they were in Ruiz. Further, the comments in Ruiz, Gore, and Crew, as described by our supreme court, crossed the line of acceptable advocacy by a wide margin. In this case the prosecutor’s comments were perhaps ill-advised but did not reach that line. Therefore, we affirm the Defendant’s conviction.

Affirmed

May and Klingensmith, JJ., concur.


text:
    Matthew ROMANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4817
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Carey Haughwout, Public Defender, and Zainabu Rumala, Nora Gay, and Erika Follmer, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

In this appeal, appellant claims the trial court erred in (1) excluding a character witness from appellant’s workplace, (2) not instructing the jury on justifiable use of deadly force, (3) denying a motion for downward departure, and (4) imposing drug offender probation. We affirm the first two issues. As to the third issue, which raised two grounds for departure, we reverse as to one ground and remand for resentencing, and we affirm as to the other ground. Finally, we reverse the last issue with directions.

Appellant and the victim were at a bar when appellant confronted the victim about an incident involving appellant’s girlfriend. Appellant became belligerent, threatened the victim, and cursed at him. The victim moved to the other end of the bar. Appellant walked past the victim two times and pushed him both times. Appellant then left the bar.

The victim stayed in the bar for another thirty or forty-five minutes before leaving. As he walked towards his car, appellant accosted the victim and punched him in the face. Appellant repeatedly punched the victim, causing him to fall, and continued to punch the victim while he was on the ground. The victim begged appellant to stop. The victim never threw a punch and did not do anything except try to stop the attack. After appellant left, the victim managed to drag himself back into the bar. The victim was taken by ambulance to the hospital. As a result of the attack, the victim sustained fractured orbital sockets, torn cartilage on three ribs, and a broken tooth, and was beaten so badly that blood came out of his ears.

Appellant testified in his defense that the victim struck him in the face without provocation, causing appellant to fall. Appellant and the victim rolled around on the ground, and appellant hit the victim “a couple of times.”

The defense attempted to present testimony of a character witness from appellant’s work who would testify to appellant’s reputation for peacefulness in the community. The state argued the witness did not meet the foundation for reputation testimony because the witness knew appellant only in the workplace and did not know appellant’s general reputation in the community. The trial court agreed and excluded the testimony as not sufficiently broad-based.

The trial court instructed the jury on the defense of the justified use of non-deadly force. The jury found appellant guilty as charged of aggravated battery.

Appellant moved for a downward departure sentence on the ground that the offense was committed in an unsophisticated manner and was an isolated incident for which he had shown remorse. The trial court found that the offense was an isolated. incident and that appellant was remorseful. However, the court found that the victim’s injuries demonstrated that this was not an unsophisticated crime. Specifically, the court stated:

However, I wanted to look at these pictures again, because these pictures clearly demonstrate—they are in evidence—that this was not an unsophisticated crime.
The [victim’s] orbital socket was damaged, like he said.
I’m. not going to- go through his injuries, because he testified and he testified in court. These are evidence and they will be part of the sentencing today.
I do not find the beating this man. got to be an unsophisticated crime.
Also, that he was left in the parking lot, and luckily he made his way back to the bar, and' luckily the woman, that was the manager or owner of the bar, saw this gentleman and said, oh, my gosh, what happened to you, and then he got help, because clearly he could have died Cut there. So I do not find that prong has been met.

Appellant also sought a downward departure on the basis that he cooperated with the state to resolve another offense. A prosecutor' in a separate criminal matter involving a different defendant testified that appellant cooperated with him, but admitted that appellant’s assistance did not solve the case. The trial court, citing State v. Knox, 990 So.2d 665 (Fla. 5th DCA 2008), stated that in order to depart on this ground, it needed the testimony of “law enforcement.” The trial court further stated that even assuming it could depart, the court did not find it should depart.

The trial court sentenced appellant to eight years in prison followed by three years of drug offender probation. During the pendency of this appeal, appellant filed a motion to correct sentencing error, arguing that the trial court was not statutorily authorized to .sentence him to drug offender probation. The trial court denied the motion, .

On appeal, appellant first argues that the trial court erred in excluding evidence of his reputation for peacefulness. A trial court’s exclusion of evidence is reviewed for abuse of discretion as limited by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). Reputation evidence is “evidence of one’s reputation in the community for a particular character trait.” Johnson v. State, 108 So.3d 707, 709-10 (Fla. 5th DCA 2013). Reputation evidence must be “sufficiently broad-based and should not be predicated on mere personal opinion, fleeting encounters, or rumor.” Nieves v. State, 849 So.2d 435, 438 (Fla. 3d DCA 2003) (citing Morrison v. State, 818 So.2d 432 (Fla. 2002)).

The trial court did not abuse its discretion in excluding the testimony because appellant did not show the witness’s testimony was sufficiently broad-based. See Wisinski v. State, 508 So.2d 504, 506 (Fla. 4th DCA 1987) (finding no abuse of discretion in excluding reputation witness testimony based on three or four people who worked with appellant). Additionally, reputation testimony from coworkers is admissible only in the limited circumstances where there is a showing of an “absence of sufficient contact with a community of residence to establish a reputation.” Parker v. State, 458 So.2d 750, 754 (Fla. 1984) (citing Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937)). See also Fla. E. Coast Ry. Co. v. Hunt, 322 So.2d 68, 70 (Fla. 3d DCA 1975); Webster v. State, 500 So.2d 285, 287. (Fla. 1st DCA 1986). Here, appellant made no showing of the unavailability of reputation witnesses from his residential community.

Appellant next claims the trial court committed fundamental error in . not instructing the jury on the justified use of deadly force. The failure to instruct on an affirmative defense is not fundamental error if the affirmative defense was not the defendant’s sole or .primary defense, or if the affirmative defense ■ claim was , “extremely weak.” Martinez v. State, 981 So.2d 449, 455-56 (Fla. 2008). In Gregory v. State, 211 So.3d 292 (Fla. 4th DCA 2017), like the instant case, the trial court instructed the jury on the justifiable use of non-deadly force. The defendant did not request an instruction on the justifiable use of deadly force. This court found that although the defendant introduced evidence that would support giving a deadly force instruction, this error did not rise to the level of fundamental error. This court reasoned that because the instruction went to the defense and not to an essential element of the crime charged, it did not amount to fundamental error. Following Gregory, we find no fundamental error occurred in the instant case.

Appellant further claims the trial court erred in denying his motion for downward departure. “A trial court’s decision whether to depart from the guidelines is a two-part process.” Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999). The trial court must first 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. Id. “This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if, competent substantial evidence supports its ruling.” Id. The trial court must then determine whether it-should depart. Id. at 1068. This aspect of the court’s decision is reviewed for abuse of discretion. Id.

A trial court may depart where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse ” § 921.0026(2)(j), Fla. Stat. The trial court found that the offense was- isolated and that appellant had shown remorse. Thus, the only issue remaining is whether the trial court erred in finding that the offense was not unsophisticated. Courts have defined a crime as unsophisticated when “the acts constituting the crime are ‘artless, simple, and not refined.’ ” State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009) (citation omitted). Additionally, “courts have considered evidence of ‘several distinctive and deliberate steps’ as an analytical factor to determine sophistication.” State v. Fureman, 161 So.3d 403, 405 (Fla. 5th DCA 2014) (citation omitted).

In the instant cáse, the trial court did not apply the correct standard in determining whether the offense was committed in an unsophisticated matter. The trial court found that the offense was not unsophisticated because of the' extent and severity of the victim’s injuries. However, the nature of the victim’s injuries does not go to the issue of whether the offense was “artless, simple, and not refined.” Nor did the trial court consider whether appellant engaged in “several distinctive and deliberate steps.” Because we are unable to determine whether the trial court “would have imposed the same sentence[ ] if it had understood that it had the discretion to depart under subsection (2)(j) upon proof of each element of that subsection,” we vacate appellant’s sentence and remand for resentencing. Kezal v. State, 42 So.3d 252, 256 (Fla. 2d DCA 2010). On resentencing, the trial court must use the proper standard in determining whether to depart on this ground.

Appellant also challenges the denial of a departure on the grounds that he “cooperated with the state to resolve” another offense. § 921.0026(2)(i), Fla. Stat. Although not dispositive, the trial court erred in finding that the testimony of “law enforcement” was necessary in order to depart. Nothing in the statute or in the Knox case cited by the trial court contains this requirement. Nevertheless, we affirm because the trial court found that even if it could depart, a departure was not warranted. Additionally, because appellant’s cooperation did not resolve an offense, as testified to by the prosecutor, a departure was not authorized.

Lastly, appellant asserts the trial court ¿rred in sentencing him to a term of drug offender probation where he had not committed a qualifying offense. “The legality of a sentence is a question of law and is subject to de novo review.” Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). A court may place a defendant on drug offender probation if “the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a) [prohibiting the purchase or possession of certain controlled substances], or other nonviolent felony.” § 948.20(1), Fla. Stat. None of these conditions apply to the instant case. Because drug offender probation was not authorized under the statute, we revérse the portion of appellant’s sentence imposing drug offender probation and remand “with leave for the trial court to substitute a term of probation with or without special conditions related to substance abuse,” provided such special conditions are appropriate. Andrew v. State, 988 So.2d 158, 159 (Fla. 4th DCA 2008); Biller v. State, 618 So.2d 734 (Fla. 1993).

In sum, we reverse appellant’s sentence and remand for resentencing using the proper standard; we reverse the drug offender probation and remand for the trial court to impose probation with or without special conditions related to substance abuse; and we affirm on all other issues.

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

Warner and Forst, JJ., concur.

      . We note that’ 'there was evidence from which the trial court cotlld have potentially found that the crime was committed in a sophisticated manner, such as appellant waiting outside to accost the victim when he left the bar.


author: Conner, J.

text:
    Robert SOLOMON, Appellant, v. Melanie SOLOMON n/k/a Melanie Anne Megregian, Appellee.
    Nos. 4D16-1365 and 4D16-2804
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      Stephanie L. Serafín and Jane Kreus-ler-Walsh of Law Office of Kreusler-Walsh, Compiani' & Vargas, P.A., West Palm Beach, and Lewis R. • Shafer and Stephanie R. Amkraut of Shafer Cohen, LLP, Boca Raton, for appellant.
    Daniel S. Weinger and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, and Martin B. Kofsky of Kofsky Law Office, P.A., Stuart, for appellee.
   Conner, J.

In this dissolution of marriage case, the husband has appealed and the wife has cross-appealed the final judgment of dissolution of marriage and the rehearing order. We affirm, without discussion, the issues raised in the husband’s appeal. As to the wife’s cross appeal, we reverse the final judgment and remand for an order authorizing relocation and for proceedings to determine a new timesharing schedule based on the relocation.

Factual Background

The husband and wife were married for twelve years and have two minor children, who were ages eight and six at the time of the final judgment. One of the primary issues in the underlying dissolution of marriage proceeding was the wife’s petition to relocate back to Virginia with the couplé’s two minor children, which the husband opposed. The record reflects that the couple had lived in Virginia for fifteen years prior to moving to Florida in 2012, for just two years before the wife filed for divorce in 2014. The wife alleged the relocation back to Virginia would be in the children’s best interest and that it would eliminate her need to constantly travel for her job, which requires her to meet with key clients near her place of employment. It appears the parties moved to Florida in 2012 after the husband lost his job in Virginia. Meanwhile, the wife continued to travel to1 Virginia for work. Additionally, the wife alleged the husband suffers from mental health issues related to his compulsive gambling, which is what led to the wife’s decision to file for the dissolution of marriage and to return home to Virginia.

The matter proceeded to a six-day bench trial, in which a substantial portion'of the testimony concerned the wife’s request for relocation to Virginia, as well as the husband’s gambling addiction. The wife testified that the marriage began to deteriorate in 2011 with the discovery that the husband had gambled away the family's ample savings.. There was also substantial evidence of the husband’s mental health issues. The wife testified that when the husband was unhappy, he would have periods of non-communication where he would stay in bed for multiple, days and not function as part of the family unit. The husband acknowledged his mental health issues, expressing his understanding that he needed to get better so that he could be a part of the family and be able to do things with his children. Initially, the wife decided to give the husband another chance on the condition that he seek help and stop gambling, However, she testified that since 2011, the husband continued to have his ups and downs, and that she offered her support until 2014 when she caught the husband gambling on two occasions, prompting her to file for divorce. Notably, there was evidence that the husband’s behavior and mental state got progressively worse between the time the. wife announced her intention to end the marriage and the time of the trial, including continued compulsive gambling and an incident three days prior to trial in which the husband was pulled over by the police and called the wife in the early morning hours to pick him up, appearing to be drunk.

Following trial,- the trial court issued its final judgment. With respect to the wife’s petition for relocation, the trial court evaluated the evidence based on the statutory factors provided in section 61.13001, Florida Statutes. Ultimately, the trial court found that the wife proved by a preponderance of the evidence that relocation was in the best interest of the children. However, the trial court noted that pursuant to the statute, after the burden is met by the wife, it then shifts to the husband to overcome the wife’s proofs. The trial court noted that the husband’s position was that he would give up his gambling behavior and work harder on .his mental health issues. It stated that the question before it was “whether to give the husband, in essence another chance.” In this regard, the trial court found that although the wife did meet her burden of proof, “the husband will be able to overcome the wife’s burden of proof, provided the following takes place.” The trial court then listed several conditions which required, in part, that the husband not gamble or enter any casinos, that he attend Gamblers Anonymous, disclose to the wife the identity of his therapist, maintain regular therapy, take any prescribed medication concerning his mental health, and to actually exercise his timesharing with the children. The trial court found that “if the husband does all of those things,” the best' interests of the children will be enhanced. The- trial court noted that the wife’s burden of proof had been met “absent the husband meeting his conditions, ” Based on the above, the trial court denied the wife’s petition for relocation.

Analysis

On cross appeal, the wife argues that the trial court abused its discretion by permitting the husband to rebut the trial court’s finding that relocation was in the best interests of the children through nothing more than the promise of a change to his future behavior. We agree.

The standard of review for a trial court’s order on a petition to relocate is abuse of discretion. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003). In this regard, an appellate court reviews whether there is competent substantial evidence to support the trial court’s findings of fact, but does not engage in reweighing the evidence. Id.

Section 61.13001(8), Florida Statutes (2016), governs the burden of proof for rulings on relocation and provides as follows:

(8) BURDEN OF PROOF.—The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

§ 61.13001(8), Fla. Stat. (2016) (emphasis added).

In this case, the wife bore the initial burden of showing that relocation was in the best interest of the children, and the trial court found that the wife met her burden. The burden then shifted to the husband to prove by a preponderance of the evidence that relocation was not in the children’s best interest. However, the trial court made no finding that the husband met this burden of proof. Instead, it made clear that the husband had not met this burden, stating that the “husband will.be able to overcome the wife’s burden of proof, provided the following takes place.” The trial court then proceeded to deny the petition for relocation based on events that had not yet occurred in hopes that the husband could change his ways. However, this was error. The husband could only satisfy his burden of proof by actually producing evidence sufficient to meet the standard set forth in section 61.13001(8), and not merely by a promise to. do better. A court may not consider potential future, or even anticipated, events as a substitute for evidence. See Purin v. Purin, 158 So.3d 752, 753 (Fla. 2d DCA 2015) (quoting Nelson v. Nelson, 651 So.2d 1252, 1254 (Fla. 1st DCA 1995)). As the wife argues, the trial court in this case essentially-relieved the husband of meeting his burden of proof altogether because it denied the motion for relocation even after finding that the husband did not otherwise rebut the wife’s showing that relocation was in the best interests of the children.

In addition, the trial .court’s ruling violated our supreme court’s mandate in Arthur v. Arthur, 54 So.3d 454 (Fla. 2010), requiring that best interest determinations concerning petitions for relocation be made “at the time of the final-hearing” and be supported by competent substantial evidence. Id. at 459, The supreme court in Arthur rejected a “prospective based” analysis concerning petitions for relocation, stating:

Indeed, a trial court 'is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that, the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because tridl courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, ie. a “present-based” analysis.

Id. (emphasis added). In this case, by permitting the husband to overcome his burden of proof against relocation through a promise to change his behavior in the future, the trial court violated Arthur. As such, we determine that the trial court abused its discretion in denying the wife’s petition for relocation, where the trial court found that the wife had satisfied her burden of proof and'where the husband had not.

We therefore reverse the final judgment and remand for an order authorizing the wife’s relocation to Virginia with the minor children and for proceedings to determine a new timesharing schedule based on the relocation. We note that the trial judge who issued the final judgment is no longer serving on the bench, thus, a further evi-dentiary hearing is necessary to establish an appropriate timesharing schedule.

The remainder of the issues raised concerning the imposition of conditions, monitoring criteria, the automatic relocation upon any violation of the conditions, and the propriety of the timesharing schedule approved in the final judgment, are thereby rendered moot. To the extent the wife argues it was error to deny an agreed upon social investigation, we affirm the ruling without prejudice should a social investigation be sought on remand for purposes of determining the new timesharing schedule. See § 61.20(1), Fla. Stat. (2014).

Affirmed in part, reversed in part, and remanded

Gross and Kuntz, JJ., concur.


author: Per Curiam.

text:
    Erick TREVINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1094
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]
    Erick Trevino, Carrabelle, pro se.
    No appearance required for appellee.
   Per Curiam.

Erick Trevino appeals the summary denial of his rule 3.801 motion for correction of jail credit. We affirm, without prejudice to Trevino’s right to pursue administrative remedies within the Department of Corrections. See Salazar v. State, 995 So.2d 1058 (Fla. 4th DCA 2008); Colson v. State, 830 So.2d 194 (Fla. 4th DCA 2002).

Warner, Gerber, and Levine, JJ., concur.


text:
    Randall BARDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1038
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]
    Randall Barde, Crawfordville, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed, without prejudice to appellant’s timely filing a rule 3.850 motion alleging, if appropriate, that he does not qualify for sentencing as a habitual felony offender and/or as a prison release reoffen-der. Bover v. State, 797 So.2d 1246 (Fla. 2001); Hampton v. State, 941 So.2d 1198 (Fla. 4th DCA 2006).

Affirmed.

May, Damoorgian and Levine, JJ., concur.


author: Gross, J.

text:
    WELLS FARGO BANK, N.A., Appellant, v. Suleiman F. SHEIKHA, Appellee.
    No. 4D16-1308
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]

      Kimberly S. Mello, Jonathan S. Tannen, and Danielle M. Diaz of Greenberg Trau-rig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauder-dale, for appellant.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellee.
   Gross, J.

As the successor in interest to the original mortgagee, appellant Wells Fargo, N.A. had possession of the underlying note at the time it filed a foreclosure action. On the back of the note was a special indorsement—“PAY TO THE ORDER OF FANNIE MAE WITH RECOURSE WORLD. SAVINGS BANK, FSB” with the signature of the “assistant custodian of records” of the original lender, World Savings Bank. Over the indorsement was stamped the word “Cancelled.”

At a bench trial, it was established that appellee executed the note and mortgage in favor of World Savings Bank. Prior to the filing of the foreclosure action, World Savings Bank changed its name to Wacho-via and later merged with Wells Fargo. Wells Fax-go established appellee’s default and evidence of damages. '

The trial court granted appellee’s motion for involuntary dismissal for the bank’s failure to show that Fannie Mae had taken some action to transfer the note back to Wells Fargo. This was error, because Wells Fargo was entitled to cancel the special indorsement.

Possession of the original note is a significant event under the Uniform Commercial Code. For example, a “negotiation” requires “a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than tjhe issuer to a person who thereby becomes the holder.” § 673.2011(1), Fla. Stat. (2014). Here, there are two realistic possibilities of what happened to the- note after the special indorsement was placed upon it. Under either possibility, Wells Fargo was entitled to cancel the indorsement.

First, the most likely scenario is that because it had possession of the original note, Wells Fargo reacquired the note from Fannie Mae, “by negotiation or otherwise.” § 673.2071, Florida Statutes (2014). As a former holder of the note, Wells Fargo was entitled to cancel in-dorsements made after it first became a holder of the note. This is the procedure authorized by section 673.2071: '

Reacquisition.—Reacquisition of an instrument occurs if it is transferred to a former holder, by negotiation or otherwise. A former holder who reacquires the instrument may cancel indorsements made after the reacquirer first became a holder of the instrument. If the cancellation causes the instrument to be payable to the reacquirer or to beai*er, the i-eac-quirer may negotiate the insti-ument. An indorser whose indorsement is canceled is discharged, and the discharge is effective against any subsequent holder.

Id. As the Uniform Commercial Code Comment explains, the section 673.2071 procedure is an exception to the rule in section 673.2051(1) that the person identified in a special indorsement must indorse the note to allow a later transferee to acquire the status of a holder:

Reacquisition refers to cases in which a former holder reacquires the instrument either by negotiation from the present holder or by a transfer other than negotiation. If the reacquisition is by negotiation, the former holder' reacquires thé status of holder. Although Section 3-207 allows the holder to cancel all indorse-ments made after the holder first acquired holder status, cancellation is not necessary. Status of holder is not affected whether or not cancellation is made. But if the reacquisition is not the result of negotiation the former holder can obtain holder status only by striking the former holder’s indorsement and any subsequent indorsements. The latter case is an exception to the general rule that if an instrument is payable to an identified person, the indorsement of that person is necessary to allow a subsequent transferee to obtain the status of holder.

Uniform Commercial Code Comment to Section 673.2071 (italics supplied). The Comment explains that section 673.2071 implements “a rule of convenience” which relieves the reacquirer of “the burden of obtaining an indorsement, that serves no substantive purpose. The effect of cancellation of any,, indorsement under Section [673.2071] is to nullify it.”

A second potential scenario is that World Savings Bank never transferred the note and that the special indorsement was placed on the note by mistake. If the note was never transferred, it was not negotiate ed, and Fannie Mae never acquired the status of. a holder. See §§ 673.2011(1), 673.2031(1), Fla. Stat. (2014). Under this scenario, Wells Fargo was entitled to cancel the special indorsement. See Handley v. Horak, 82 Misc.2d 692, 370 N.Y.S.2d 313 (N.Y. Gen. Term 1975), “[I]f a holder can cancel an endorsement after delivery and reacquisition it can cancel an endorsement before delivery, whatever the reason for the cancellation.” Id. at 316; compare Los Alamos Credit Union v. Bowling, 108 N.M. 113, 767 P.2d 352, 352-53 (1989) (observing that “a cancellation, release, or surrender of [an] instrument is ineffective if it is unauthorized, unintentional, or done by mistake”).

The appellee in default demonstrated no prejudice from the lack of explanation from Fannie Mae. Because the original note was introduced in evidence, there was no likelihood that- Fannie Mae would later seek to enforce the same note.

We reverse the dismissal order entered in favor of the borrower and remand for further proceedings.

Ciklin, C.J., and Conner, J., concur.

      . “With recourse” means that the indorser is liable to pay the amount due on the instrument pursuant to section 673,4151(1), Florida Statutes (2014), Section 673.4151(2) providés that if "an indorsement states that it is made ‘without recourse’ or otherwise disclaims liability of the indorser, the indorser is not liable under subsection [673.4151](1) to pay the instrument.” See also Fla. Coast Bank of Broward Cty. v. Monarch Dodge, Inc., 430 So.2d 607 (Fla. 4th DCA 1983) (discussing the application of section 673.414(1), Florida Statutes (1977)).


text:
    Thomas BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3134
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]

      Jacob M. Noble of Noble Law, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Thomas Byrd appeals his conviction and sentence for one count of first degree murder and one count of armed robbery. On appeal, Appellant argues that the trial court reversibly erred by: (1) allowing the State to introduce a co-defendant’s recorded statement to rebut Appellant’s alibi witness; (2) admitting certain cell-phone records into evidence; and (3) prohibiting the defense from cross examining the State’s crime scene technician about the results of a presumptive gun-shot residue test performed on a co-defendant. We affirm on issues 2 and 3 without further comment. We reverse on issue 1 and remand for a new trial.

Appellant, along with two other men, Kevin Sammiel and Sherman Colson, were charged with the robbery and murder of Dustin Deckard (the “Victim”). The evidence established the Victim was shot and killed while walking to a friend’s home shortly after 12:30 a.m. Surveillance video from a nearby house depicted the Victim walking by while talking on his cell-phone at 12:31 a.m. About a minute later, the tape caught a light colored mini-van slowly driving by. Shortly thereafter, a witness saw two men struggling with the Victim, and noticed a “beat-up” “grayish-green” minivan idling nearby. At first, the witness assumed that the van was stopping to call the police, but then saw the two men run towards the van, get in the passenger-sliding door, and watched the van speed away in a northbound direction. The witness called 911 at 12:38 a.m. and the police immediately put out a BOLO for the van. Around the same time, another witness called the police anonymously and reported that there was a dead body lying on the sidewalk.

The first officer to respond to the BOLO reported seeing what appeared to be a gold colored minivan with damage on the driver’s side about three blocks north-east of the shooting at 12:40 a.m. At 12:48, an officer a few miles north spotted a van matching the BOLO description. That officer pursued the van and, as soon as he turned on his overhead lights, a passenger (who turned out to be Appellant) jumped out of the van. The driver (Colson) pulled over and police arrested him and the remaining passenger, Sammiel. Appellant was quickly apprehended with the assistance of a K9 unit. Law enforcement recovered the Victim’s cell-phone from inside the van. The murder weapon was never found.

Upon being arrested, Appellant refused to speak with the police. Colson, on the other hand, admitted to his role in the murder and identified Appellant as, the shooter. Sammiel spoke with police, but denied any involvement in the robbery and shooting, claiming that an unspecified “they” came and picked him up from his aunt’s house presumably after the shooting.

Relevant to the issue on appeal is Appellant’s pretrial motion to sever his case from his two co-defendants’ cases because both co-defendants gave statements to police implicating Appellant in the murder. In response to Appellant’s motion to sever, the State agreed that both Colson and Sammiel made statements to the police which would constitute inadmissible hearsay if used against Appellant. The State also acknowledged that it intended to offer Colson’s statement into evidence and, therefore, agreed that Colson’s case should be severed. However, the State informed the court that it did not intend to use Sammiel’s statement and, therefore, maintained that Appellant and Sammiel should be tried together. Based on the State’s representations, the court granted Appellant’s motion to sever as it pertained to Colson but denied it as it pertained to Sammiel.

Shortly before trial, both Appellant and Sammiel filed a notice of intent to call their aunt as an alibi witness. In response, the State notified the court that it wished to introduce Sammiel’s statement to rebut the' aunt’s statement that both Appellant and Sammiel were at her house at the time of the murder. Based on the State’s notice, Appellant renewed his motion to sever, arguing that Sammiel’s statement constituted inadmissible hearsay as it pertained to Appellant and' if introduced, would violate Appellant’s Sixth Amendment Confrontation Clause rights. The court denied Appellant’s motion and Appellant and Sammiel were tried together.

At trial, both Appellant and Sammiel argued that they were not in the van at the time of the shooting and were instead at their aunt’s house. In support of this position, they presented testimony from a private investigator, who testified, that the aunt’s house was only a minute away from the location where the van was spotted before it was ultimately stopped. They also called their aunt as a witness. She testified that on the night of the murder, Appellant, Sammiel, and Colson came to her house around 8 p.m. and the four proceeded to drink and smoke marijuana' together. At around 11:45 p.m., they ran out of drugs and alcohol and sent Colson out to get more. According to the aunt, Colson pulled back up in front of her house after 12:30 a.m., “jumped out,” gave the aunt back the money she had given him to buy drugs and alcohol, and told Appellant arid Sammiel to get in the van. The three men then left. On cross-exam, the aunt admitted that she waited more than two years to tell anyone about her nephews’ purported alibi.

To rebut the aunt’s testimony, the State introduced an excerpt from Sammiel’s recorded statement to the police. In that statement, the interviewing detectives confronted Sammiel with the .911 caller’s recount and in response, Sammiel stated “what that got to do with me?' I just told you, they came and they picked me up from my auntie’s house.”

During its closing, the State' emphasized the unbelievable nature of the aunt’s alibi testimony, arguing:

Now the timeframe is important because it’s not just that Sherman Colson would have gotten to drive all the way back to [the aunt’s house], and then tell the two to get in the car ... if there’s two other men, two other men that did this, not only does Sherman Colson have to drive back, but somewhere along the way, let these other two guys out of the van, because we don’t see or hear from them again. And then while fleeing the scene, decide I’m going to stop by, and pick up Mr. Byrd and Mr. Sammiel. ...
So not only does the van come back, take a round about through 13th Ave, but Sherman Colson, while in flight, away from a murder that he just committed with two random, never seen from again, black males, picks up these two other individuals, who are not involved, round abouts, and does it in approximately 3 minutes, it doesn’t make sense. If it doesn’t make sense, it’s inconsistent. It’s inconsistent because it lacks credibility. Her tale lacks' credibility-
And what does one base their conviction on? Credibility. Consistency, and the truth. The truth doesn’t waver, the truth endures. Because after two. years— again, she’s had time to think about this, But she still gets her statement wrong. She comes in and said, Mr. Sammiel and Mr. Byrd, these two Defendants, they were with me, Colson went alone.
.Mr.- Sammiel says something quite different, and the devil is in the details. Mr. Sammiel says ‘they came and picked me up, they went without me. I was at "my auntie’s house.’ And that’s a subtle difference that is so important; because it shows that those two stories, they don’t match up, they’re inconsistent. Again, the inconsistencies in the alibi,

The jury found Appellant guilty of both counts as charged. This appeal follows.

Appellant argues that Sammiel’s recorded statement to police constituted inadmissible hearsay and its introduction at Appellant’s trial to impeach Appellant’s alibi witness was improper and violated Appellant’s Confrontation Clause rights. The State counters that as used at trial, Sammiel’s statement was not hearsay as it was not being used to prove the truth of the matter asserted—namely that Sammiel was not present when the Victim was shot and robbed—but was instead being used to impeach an alibi witness. In this capacity, the State maintains that the introduction of Sammiel’s statement was proper and did not violate Appellant’s Confrontation Clause rights. We hold that the statement was not admitted as hearsay and also note that when properly introduced as non-hearsay impeachment evidence, a co-defendant’s statement does not violate the defendant’s Confrontation' Clause rights. However, in this case, Sammiel’s statement was not proper impeachment evidence. Therefore, we reverse.

"hARSAY" deis defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2014). “ ‘A statement may, however, be offered to prove a variety of things besides its truth.’ ” Jean-Philippe v. State, 123 So.3d 1071, 1079 (Fla. 2013) (quoting Foster v. State, 778 So.2d 906, 914 (Fla. 2000)). As such, a statement which constitutes inadmissible hearsay if used as substantive evidence of its truth can still be admissible for an alternative purpose, such as impeachment. Dias v. State, 812 So.2d 487, 495 (Fla. 4th DCA 2002).

Here,’ Sammiel’s statement to the effect of. “they came and picked me up” was not being used to prove the truth of the matter asserted. Indeed, Sammiel’s statement, if true, exonerated Sammiel as it established he vyas not in the van at the time the Victim was robbed and shot. Clearly, the State was not trying to prove the truth of Sammiel’s statement as it was prosecuting Sammiel for the Victim’s murder. Rather, as highlighted by the prosecutor' during closing, Sammiefs statemént established that no one—not the aunt nor Sammiel—was telling, the' truth about Sammiel and Appellant’s whereabouts at the time of the murder. In this context, Sammiel’s statement was admitted for the non-hearsay purpose of impeaching the aunt. As such, the statement also did not invoke the protections of the Confrontation Clause. Calloway v. State, 210 So.3d 1160, 1188 (Fla. 2017) (noting that “[a] codefen-dant’s incriminating statements that are 'admitted for nonhearsáy purposes, such as impeachment, do not invoke the protections of the Confrontation Clause”).

Although Sammiel’s. statement was not hearsay, under the facts of the case, it was also not proper impeachment evidence. “In Florida, a witness may not be impeached by any means not recognized in the Evidence Code.” Pantoja v. State, 990 So.2d 626, 629 (Fla. 1st DCA 2008). Florida’s evidence code provides the following complete list of. the ways .in which a party may .impeach a witness:

(1) Introducing statements of the witness which. are inconsistent with the witness’s present testimony.
(2) Showing that the witness is biased.
(3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610,
(4)- Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.
(5) Proof by other witnesses that material facts are not as testified to by the witness being impeached.

§ 90.608, Fla. Stat. (2014).

Our reading of section 90.608 leads us to conclude that the impeachment evidence in this case does not fall into any of the' categories by which a witness’ credibility may be attacked. The only provision which is remotely applicable, “proof by other witnesses that material facts are not as testified to by the witness being impeached,” does not permit Sammiel’s statement to impeach the aunt because Sammiel was not a witness. Accordingly, we hold that while Sammiel’s statement is not hearsay and its introduction would not violate the Confrontation Clause, the introduction of the statement to impeach the aunt was nonetheless improper under section 90.608 of the Florida Statutes.

Having concluded that Sammiel’s statement was not proper impeachment evidence, we next consider whether its introduction was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Appellant argues that Sammiel’s statement implicated Appellant in the murder because it suggested that Appellant was one of the “they” that picked up Sammiel from the aunt’s house. Therefore, the jury may have convicted Appellant in part because of Sammiel’s statement. The State counters that the eye witness’ testimony was so compelling that Appellant would have been convicted in any event. The State also argues that the aunt’s testimony was incredible, suggesting that no reasonable juror would have believed the alibi. While it is worth noting that the alibi witness waited two years to come forward with her story and provided a tale inconsistent with the timeline of events as corroborated by independent witnesses and law enforcement, we cannot conclude beyond a reasonable doubt that the improper impeachment of the alibi witness’s testimony did not contribute to the jury’s verdict. Id. This is especially true in light of the prosecutor’s closing argument, which focused on the inconsistency in the aunt’s testimony created by Sammiel’s statement. Therefore, we are compelled to reverse and remand for a new trial.

Reversed and remanded.

Gerber and Klingensmith, JJ., concur.

      . We note that as it pertains to Sammiel, the effect of the admission of Sammiel’s statement did not have the same effect as it did not implicate Sammiel in any way.