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    Vahtiece Alfonzo KIRKMAN, Appellant, v. STATE of Florida, Appellee.
    No. SC16-808
    Supreme Court of Florida.
    [January 11, 2018]

      James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Vahtiece Alfonzo ■ Kirkman appeals his conviction and sentence of death for the first-degree murder of Dariee Knowles. The trial judge sentenced Kirkman to death for the first-degree murder conviction after a jury recommended the death penalty by a vote of ten to two. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm Kirkman’s conviction, but we vacate the death sentence and remand for a new penalty phase based on the United States Supreme Court’s opinion in Hurst v. Florida (Hurst v. Florida), — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court’s opinion on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

FACTS AND PROCEDURAL HISTORY

On July 30, 2010, approximately four years after first being made aware of her murder, the Cocoa Police Department found the skeletonized remains of Dariee Knowles, a Bahamian citizen, in a heavily wooded and swampy area in Cocoa, Florida. The examination of Darice’s remains revealed that her hands and feet had been bound with duct tape, her mouth had been covered with duct tape, and she had been buried alive by being covered with concrete and dirt.

Cocoa police were led to the burial site a few days earlier by Christopher “Dread*’ Pratt, who had been Darice’s on-again, off-again boyfriend. Pratt, also a Bahamian citizen, led police to the burial site as part of a plea agreement he entered into while awaiting trial for his involvement in the separate murder of Willie Parker. For the Parker murder, Pratt had been indicted years before—in October 2006—along with Kirkman and a third individual, Jonathan Page.

Under the plea agreement, Pratt would receive a ten-year sentence for the second-degree murder of Parker, as well as a ten-year sentence for the second-degree murder of Darice, followed by ten years of probation. The plea agreement was conditioned on Pratt showing the police where Darice’s body could be located and on Pratt testifying truthfully against Kirkman in both murder cases. Pratt led the investigators to the burial area, and on the fifth day of searching, Darice’s remains were found.

On January 23, 2012, Kirkman was indicted for the first-degree premeditated murder of Darice Knowles. At trial, Pratt testified that on March 17, 2006, he (Pratt) bound Darice’s hands and feet, taped her mouth, dug a hole, and buried her alive in a shallow grave in a swampy area off of a dirt road in Cocoa by covering her with cement and dirt. Pratt explained that he did so all at the direction of, and while in the presence of, Kirkman. Pratt also explained that Kirkman wanted Darice dead because she had spent the previous night with a police officer, and Kirkman was concerned she was talking to the police about his criminal conduct. Pratt further explained that the shovel, cement, and duct tape used in the murder were all supplied by Kirkman and that Kirkman drove Pratt and Darice around in Pratt’s rented minivan for approximately thirty to forty minutes until Kirkman selected the burial location.

On April 8, 2016, the jury convicted Kirkman of first-degree murder. On April 12, 2016, the jury, by a vote of ten to two, recommehded a death sentence. On April 29, 2016, the trial court sentenced Kirk-man to death.

Guilt Phase

The evidence presented at the guilt phase primarily consisted of the' following: codefehdant Pratt’s testimony;' the testimony of Jovonnie Freeman, the former law enforcement officer with whom Darice spent her final night; the testimony of Kirkman’s girlfriend, Tamiko Smith; four recorded jailhouse phone calls made by Kirkman to Tamiko; the testimony of Officer Eric Austin of the City of Cocoa Police Department;- Kirkman’s recorded interview with -Officer Austin; and video and receipt information from the Home Depot showing Kirkman purchasing a bag of concrete mix, a shovel, and duct tape on-the day of Darice’s murder. The evidence established the following relevant pre-and post-murder events.

In November 2005, Pratt came to Bre-vard County, Florida, from the Bahamas for the specific purpose of dealing in narcotics. When Pratt arrived in Florida, he rented a gold Chrysler minivan. He then met up with Kirkman, whom he had previously met through Kirkman’s mother. Pratt saw Kirkman on a daily basis, which included staying with Kirkman for about two months in Melbourne at the home of the mother of Kirkman’s child, as well as occasionally staying with Kirkman in Rockledge at Tamiko’s home. During his time in Florida, Pratt was introduced by Kirkman to Carlos “Los” Buckner and Tony; “Bang” Rogers. Pratt also had a brother, Patrick “Bongo” -Pratt,1 who came. to Florida from the Bahamas at the end of March 2006, not long after Darice’s murder.

In the middle of February 2006, Darice, who was twenty-two years old at the time, came to Florida from the Bahamas to visit Pratt. According to Pratt, he and Darice used to date when they were in the Bahamas and although they were no longer boyfriend and girlfriend at the time, they continued a sexual relationship. Darice stayed with Pratt and Kirkman at the home of Kirkman’s baby’s mother.

On February 28, 2006, two weeks after Darice arrived in Florida, Pratt participated in a robbery with Kirkman and another individual (Page). During the course of the robbery, one of the victims, Parker, was murdered.

On or around March 14, 2006, Pratt and Darice moved together to the Dixie Motel in Cocoa. Soon thereafter, on the night of March 16, 2006, Darice went out to a local bar where she created a disturbance that prompted a phone call to the police regarding her disorderly behavior. Officer Freeman of the City of Cocoa Police Department responded to the call and issued a trespass warning to Darice. Officer Freeman then drove Darice back to the Dixie Motel and the two exchanged phone numbers. After getting off work at 11 p.m. later that same night, Officer Freeman called Darice and she agreed to go out with him. Officer Freeman changed into civilian clothes and returned to the Dixie Motel in his personal vehicle to pick up Darice. Pratt returned to the Dixie Motel around that same time and saw Darice and Officer Freeman in the vehicle together. Although he did not know Officer Freeman’s name, Pratt recognized him as the police officer who had recently conducted a traffic stop in which Kirkman, Rogers, and Pratt were in the stopped vehicle and during which Rogers fled the scene. Pratt approached Officer Freeman’s personal vehicle and asked Darice what she was doing with the man. After Darice explained to Officer Freeman that Pratt was her ex-boyfriend and that everything was fíne, Darice and Officer Freeman left the Dixie Motel and spent the night together. Pratt admitted to being upset at seeing Darice leave with Officer Freeman.

Pratt then left the Dixie Motel because he was locked out of the room. He went to the Ramada on Merritt Island and called Kirkman to tell him what Pratt had witnessed back at the Dixie Motel. During the call, Kirkman asked Pratt for the officer’s name but Pratt did not know. Pratt then went to Tamiko’s house to meet with Kirk-man sometime around 2 a.m. on March 17, 2006, the day of Darice’s murder. There, Kirkman continued to ask Pratt questions regarding the officer’s identity. Tamiko, who was home at the time, testified that when Kirkman received Pratt’s late-night phone call, Kirkman got up and was pacing around. Tamiko also testified that after Pratt arrived, she was told that Darice had been drinking and causing problems. Later that morning, Kirkman told Tamiko that he and Pratt were going to take Darice to the airport.

Pratt left Tamiko’s house and went back to the Dixie Motel where he found the room door slightly open with no one inside. After resting briefly, Pratt packed up his and Darice’s belongings. Pratt testified that he was afraid of Darice’s involvement with the police, and he felt that he needed to move from that location because of the narcotics dealing going on there.

Later that same morning of March 17, 2006, Pratt watched Officer Freeman and Darice return to the Dixie Motel. At that time, Officer Freeman recognized Pratt as one of the individuals with whom he had previously made contact on a traffic stop. Officer Freeman left Darice at the Dixie Motel and then left the area: Darice went up to the room, where Pratt told her that it was time to leave and that he did not feel safe. Pratt then loaded up the van with their personal belongings. Darice told Pratt that she was only out having a little fun and that she had met the officer after he responded to a disturbance she had caused at a local bar and grill. Darice, who had been using Tamiko’s name, then showed Pratt a pink slip of paper from the Cocoa Police Department indicating the disturbance at the bar.

Pratt and Darice left the Dixie Motel and drove to Tamiko’s house. During- the drive, Pratt called Kirkman to tell him he was on his way. When Pratt and Darice arrived at Tamiko’s house, Kirkman. came out through the garage. Pratt saw Tamiko standing in the doorway that leads from the garage into the house, and Tamiko saw Pratt and Darice sitting in the van outside the house. Kirkman then got into the van and left with Pratt and Darice. Tamiko testified that this was the last time she ever saw Darice.

From Tamiko’s house, Pratt continued to drive and the three headed toward 1-95. Pratt testified that he intended to drop Darice off at the airport but after Kirkman made a phone call, Kirkman instructed Pratt to drive to the home of Rogers’ girlfriend. Pratt obeyed. During the drive, they discussed what happened the night before, and Pratt attempted to explain to Kirkman that nothing was going on with Darice and the officer.

Upon arriving at Rogers’ girlfriend’s home, Pratt parked the van in the backyard by a tree. He and Darice never got out of the van. Instead, Kirkman went inside the house and eventually came back outside with Buckner. Rogers also later came outside. Kirkman approached the van and stated that he did not believe there was nothing going on with Darice and the police officer. Kirkman then instructed Pratt and Darice to stay in the van while Kirkman, Buckner, and Rogers all left together in a car. Certain receipt and store video information provided by the Home Depot shows Kirkman shortly thereafter walking into the Home Depot store on Merritt Island and, at approximately 12:20 p.m. on March 17, 2006, purchasing ah eighty-pound bag of concrete mix, a shovel, and a roll of duct tape. The remaining events leading up to Darice’s murder are based solely on the testimony of Pratt.

While Pratt and Darice were sitting , in the van awaiting Kirkman’s return to Rogers’ girlfriend’s house, Pratt struck Darice in the face several times because he was angry that she had put the two of them in a life-or-death situation. Kirkman then returned with a shovel, a bag of cement, and a roll of duct tape, all of which Kirkman placed in the front passenger seat area of the van. Kirkman got into the van, took the keys, and did the driving.

. Kirkman instructed Pratt to tie Darice’s hands together with the duct tape, which Pratt did, and Kirkman then drove the van around for approximately thirty to forty minutes until reaching a dirt road off State Road 524. During the drive, Pratt and Darice attempted to explain to Kirkman that she was not cooperating with the police, but Kirkman informed Pratt that it had to either be Darice’s life or the lives of both Pratt and Darice. Pratt was scared of Kirkman.

When Kirkman finally stopped the van off the dirt road, Kirkman,- who was carrying a gun, ordered Pratt to use the duct tape, to tie up Darice’s feet and to cover her mouth. Pratt complied. Kirkman then instructed Pratt to carry Darice, towards the woods, to dig a hole to Kirkman’s specifications, and to get water from'a nearby pond and then mix up the cement, all of which Pratt did. Pratt fetched the water by using a plastic storage bin from the back of the van, and he used the shovel to mix the cement. Kirkman then ordered Pratt to throw Darice in the hole. Pratt complied. Darice was alive and terrified, and her positioning in the hole was such that her upper body was lower than her legs, with her toes extending up out of the hole. While Darice was in the hole, Kirk-man pointed his gun at her but did not shoot. Kirkman then ordered Pratt to cover Darice with cement and dirt. Pratt complied. After noticing that Darice’s toes were sticking out, Kirkman ordered Pratt to cover her toes with cement. Pratt complied. Kirkman never left the burial scene during this time, and after Pratt finished burying Darice, he and Kirkman left' together. They then discarded Darice’s clothes at different garbage disposal areas and placed the shovel and duct tape in Tamiko’s garage.

In May 2006, Pratt, Kirkman, and Buckner were arrested in South Carolina on unrelated federal charges. Soon thereafter, Florida investigators, acting on leads in the Willie Parker murder investigation, traveled to South Carolina and interviewed all three men. During their interview of Buckner, the investigators first became aware of Darice’s murder. They then returned to Florida and began searching for Darice’s body in the same remote, swampy area in Cocoa where Darice’s remains would eventually be found four years later. The investigators also went to Tamiko’s home. There, they asked Tamiko about Darice and about a minivan that Pratt had rented. They also removed two shovels from Tamiko’s garage and requested that Tamiko not tell Kirkman about their visit to her house. But Tamiko promptly told Kirkman about the visit, during several jailhouse calls she received from Kirkman later that same day. The recorded calls were introduced into evidence and played for the jury in their entirety.

During the calls, Tamiko told Kirkman all of the following regarding the visit by police: they were looking for some “stolen goods” in her garage; they asked if she knew Kirkman; they talked about Pratt and wanted to get in touch with Darice; they knew about the van (but the van was not at her house at the time); and they took two shovels from her garage. Kirk-man repeatedly instructed Tamiko to remove his belongings from her house. Also, using code language, Kirkman repeatedly instructed Tamiko to have Pratt’s brother, Bongo, “torch” the van. Tamiko testified at trial that after Kirkman’s third phone call, she followed Bongo to an industry road close to the salvage yard in Cocoa, where Bongo burned the van. She later testified that the van burned by Bongo was the same van in which she last saw Darice.

In June 2006, Cocoa police spoke with Pratt about Darice (and about Parker). Pratt lied about Darice’s whereabouts by telling the investigators that he had dropped Darice off at the airport on March 17, 2006. The investigators also ■, interviewed Kirkman. Prior to interviewing Kirkman, the investigators—based on information received as well as a bar code on one of the shovels they removed from Tamiko’s house—were able to obtain video and receipt information from the Home Depot on Merritt Island correlating to the purchase of that shovel on March 17, 2006, along with the purchase of duct tape and a bag of concrete mix. Kirkman’s recorded interview with investigators was introduced into evidence and played for the jury in its entirety.

During his one-hour interview with investigators, Kirkman admitted to telling Tamiko and Bongo to “torch” Pratt’s rented van but stated that he did so because he knew that the van had been reported as stolen by the rental company and that investigators had asked Tamiko about the van. Kirkman also watched the Home Depot video and admitted to-.purchasing the items but stated that he did so for his employer, a company called Rainbow Concrete, and that the owner of the company eventually told Kirkman to keep the shovel. The owner of Rainbow Concrete testified at trial that he never purchased any concrete from Home Depot, that he and his ex-girlfriend were the only individuals who purchased concrete for the business, that he knew Kirkman but Kirkman never worked for him, that he never asked Kirk-man to buy any materials for any job, and that he never told Kirkman to keep any shovel.

At the conclusion of the guilt phase, the jury was instructed on both first-degree premeditated murder and first-degree felony murder. On April 8, 2016, the jury returned a verdict of guilty on the sole count of first-degree murder.

Penalty Phase

At the penalty phase, the State presented thé following six aggravators: (1) that Kirkman was previously convicted of a felony and under sentence of imprisonment or on felony probation;' (2) that Kirkman was previously convicted of another capital felony or a felony involving the threat or use of violence to the person; (3) that the capital felony was committed while Kirk-man was engaged or an accomplice in the commission of or an attempt to commit or flight after committing or attempting to commit any kidnapping; (4) that the capital felony was committed for the sole or dominant purpose of avoiding, or preventing a lawful arrest; (6) that the capital felony was especially heinous, atrocious, or cruel (HAC); and (6) that the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP).

The State introduced evidence that on the day of Darice’s murder, Kirkman was still on' probation for a felony burglary conviction. In addition to introducing a certified copy of the judgment for the burglary conviction, the State' presented the testimony of the' following individuals: the correctional probation specialist, a witness to.the burglary, and the law enforcement officer who investigated the burglary.

The State also introduced evidence of Kirkman’s prior conviction for the first-degree murder of Parker. In addition to introducing a certified copy of the judgment for the murder conviction, the State called Pratt, who testified to the following: he, Kirkman, and Page were involved in the Parker robbery-turned-murder; the robbery was planned by Buckner ahd Kirkman; Pratt participated at Kirkman’s request; Pratt was the driver, while Kirk-man and Page each had a gun; and Pratt saw Kirkman twice shoot into the passenger side of Parker’s vehicle. Pratt later testified that Darice did not know about the Parker murder but that she did know about the drug dealing.

The State presented the testimony of Dr. Qaiser, the Medical Examiner, who testified earlier in the guilt phase. Dr. Qaiser concluded that Darice was in a struggle to escape and that her body went into an extreme form of rigor mortis known as cadaveric spasm, which happens when a person is in terror and fear while at the same time trying to escape. Dr. Qaiser testified that Darice’s body was maintained in the escape-attempt position because of the “cement-like substance.” He also testified that Darice would have lost consciousness within twenty seconds and would have died within four to six minutes.

The State called Officer Austin, who testified earlier in the guilt phase and who was involved in both murder investigations (Darice’s and Parker’s). Officer Austin testified regarding the progression of both murder investigations, including the relative difficulty investigators were having in finding corroborating evidence against Pratt in the Parker murder case. Officer Austin also testified regarding the plea deal entered into with Pratt and how, up to that point, the authorities were losing hope of finding Darice’s body.

The defense then called its only witness, 'Kirkman’s godsister. She testified that Kirkman was the “perfect brother,” that they talked every day, that even when he was incarcerated he made sure she did her homework, and that he was at the hospital for the birth of her first daughter.

The defense proposed the following miti-gators: (1) that Kirkman was an accomplice in first-degree murder committed by another person and Kirkman’s participation was relatively minor; and (2) any other factors in Kirkman’s character, background, or life, or the circumstances of the offense that would mitigate against the imposition of the death penalty.

On April 12, 2016, the jury, by a vote of ten to two, determined that Kirkman should be sentenced to death. In doing so, the jury unanimously found that the State proved five of the six proposed aggrava-tors beyond a reasonable doubt. The jury did not unanimously find the proposed ag-gravator that the capital felony was committed for the sole or dominant purpose of avoiding or preventing a lawful arrest. Kirkman declined a presentence investigation, waived a Spencer hearing, and chose to go straight to sentencing.

Sentencing

On April 29, 2016, the trial court sentenced Kirkman to death for the first-degree murder of Darice. The trial court found the same five aggravators that were unanimously found by the jury: (1) Kirk-man was previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation (great weight); (2) Kirkman was previously convicted of another capital felony or a felony involving the use or threat of violence to the person (very great weight); (3) the crime was committed while Kirkman was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any kidnapping (substantial weight); (4) HAC (very great weight); and (5) CCP (great weight). The trial court declined to consider the sixth aggravator presented by the State— that the capital felony was committed for the sole or dominant purpose of avoiding or preventing a lawful arrest. The trial court noted that the jury did not unanimously find the existence of that aggravator.

Additionally, the trial court found the following sole mitigator: Kirkman was caring and helpful towards his relatives (moderate weight). The trial court determined that the other proposed mitigator—that Kirkman was an accomplice whose participation was relatively minor—was not reasonably established by the evidence. Instead, the trial court determined that the evidence showed that Kirkman played a major role in the planning and carrying out of the murder.

Lastly, the trial court addressed whether a death sentence for Kirkman would be disproportionate when compared to the ten-year sentence received by Pratt for his plea to second-degree murder. The trial court rejected a relative culpability miti-gator, finding that Kirkman intended to kill Darice, was a major participant in the underlying felony, and demonstrated a reckless indifference to human life. The trial court noted that the evidence established that Kirkman planned, directed, and controlled every aspect of the murder.

This appeal follows.

ANALYSIS

On appeal, Kirkman raises and properly briefs only one distinct guilt phase claim. Namely, he argues that the trial court reversibly erred by allowing Pratt to testify that he and Kirkman were involved in the Parker murder. For the reasons explained below, we conclude that Kirkman is not entitled to a new guilt phase on this. issue.

Kirkman also raises three penalty phase issues: (1) his death sentence violates Hurst; (2) Florida’s death penalty scheme is unconstitutional in that it fails to narrow the category of cases eligible for the death penalty; and (3) his death sentence is disproportionate when compared to Pratt’s sentence, in violation of' Enmund and Tison. Because we conclude that Kirk-man is entitled to a new penalty phase under Hurst, we decline ¡to address any other penalty phase claims, as we have similarly declined to do in other recent cases on direct appeal. See, e.g., Davis v. State, 217 So.3d 1006, 1020 (Fla. 2017).

In addition to addressing Kirkmaris guilt phase claim and his Hurst claim, we conduct an independent review of whether the evidence in this death penalty -case was sufficient to sustain Kirkman’s first-degree ■ murder conviction.

Guilt Phase Claim

Prior to -trial, the State filed a Notice of Intent to Offer Evidence of Other Criminal Offenses (Williams Rule Evidence) under section 90.404(2), Florida Statutes (2015), proposing to introduce certain evidence regarding the Parker murder, including that Pratt and Kirkman were both involved, that Pratt watched Kirkman shoot and kill Parker, and that Kirkman ordered and directed Pratt to assist in murdering Dar-ice because Kirkman thought she was providing information to the police regarding the Parker murder. The State argued that the evidence was relevant both to show' that Kirkman had a motive to kill Darice and to show why Pratt was fearful of Kirkman. The State also theorized that the evidence was “inextricably intertwined with the homicide of Darice Knowles.” Defense.counsel argued that the incidents were not necessarily intertwined and that the State should be “severely limited in bringing in this prior criminal history aspect.” Defense counsel also argued that the .case was about Pratt being mad that his girlfriend wenjt out with a police officer.

The trial court determined that the Parker murder issue involved pure relevancy-type questions as opposed to actual Williams rule issues. The court determined that “parts of’ the Parker murder could be “inextricably intertwined” and relevant.. Namely, the court determined that it was relevant to prove motive, that is, that Pratt was directed and ordered to assist in murdering Darice because of the belief that she was providing information to the police about the Parker murder. The trial court thus allowed the State to mention the Parker murder and that Pratt and Kirkman were both involved. But the court determined that going into the specifics of the Parker murder was unnecessary 'and would be unfairly prejudicial; The judge concluded that the State would have to establish Pratt’s fear of Kirkman without mentioning that Kirkman shot and killed Parker. In short, Pratt could “say that he was indicted along with Mr) Kirkman and agreed to testify” but could not mention the gun or that Kirkman shot Parker. The State complied with the trial court’s ruling.

During opening statements,, the State mentioned the Parker murder without going into any specifics. The State recounted that Darice was killed because Kirkman thought that Darice was talking to the police about his and Pratt’s activities. The State also mentioned that Pratt was under indictment, along with Kirkman and Page, for the murder of Parker. And the State mentioned that in 2010, while Pratt’s case for his involvement in the Parker murder was still pending, Pratt made a deal with the State , that was contingent on him showing law enforcement where Darice’s body was located and on him testifying truthfully against Kirkman in both homicide cases. Lastly, the State later mentioned that Pratt would be given a total of twenty years, and ten years’ probation, to testify truthfully against Kirkman in both cases.

A review of Pratt’s testimony during direct examination reveals certain brief exchanges regarding the Parker murder. Namely, it was mentioned that in June 2006, Cocoa police spoke with Pratt about Darice and Parker. It was also mentioned that shortly thereafter, Pratt, Kirkman, and Page were all indicted for the Parker murder. And it was mentioned that Pratt later entered into a plea agreement. Finally, after a sidebar, the trial court allowed Pratt to state the date of the Parker murder—which was two to three weeks prior to Darice’s murder—to attempt to show why Pratt was afraid of Kirkman. The State did not mention the Parker murder in any other part of the guilt phase, including closing remarks.

Kirkman argues that the trial court erred by not limiting Pratt’s testimony concerning the specific criminal activity that Kirkman might have feared was being communicated by Darice to the police. Kirkman concedes that it was relevant and probative for the jury to hear that he and Pratt were engaged in an ongoing criminal enterprise at the time of Darice’s murder but argues that informing the jury about the specific crime of murder was unduly prejudicial and its relative probative value was negligible. We conclude that the trial court did not abuse its discretion regarding this evidentiary matter.

A trial court’s determination that evidence is admissible will not be disturbed unless the trial court abused its discretion. See McGirth v. State, 48 So.3d 777, 786 (Fla. 2010). “That discretion, however, is limited by the rules of evidence.” Hudson v. State, 992 So.2d 96, 107 (Fla. 2008). With respect to collateral crimes evidence, this Court has long noted that such evidence falls into one of two categories: similar fact evidence, which is considered Williams rule evidence, and dissimilar fact evidence. McGirth, 48 So.3d at 787. The former is governed by section 90.404, Florida Statutes, whereas the latter is governed by the general rule of relevancy, .in section 90.402, Florida Statutes (2015). Id. This Court has described admissible dissimilar fact evidence as follows:

Thus, evidence of uncharged crimes which áre inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams' rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Griffin v. State, 639 So.2d 966, 968 (Fla. 1994) (alterations in .original) (quoting Charles W. Ehrhardt, Florida Evidence, § 404.17 (1993 ed.)). Ultimately, “evidence that helps to put the entire case into perspective” is admissible “to the extent that its relevance is not outweighed by its prejudicial effect.” Kopsho v. State, 84 So.3d 204, 212 (Fla. 2012).

In the instant case, the trial court concluded that the Parker evidence was not true Williams rule evidence and' should be analyzed under the general relevancy provisions. We agree. Consequently, the trial court’s decision is reviewed under section 90.402 and the general rules of relevancy.

Here, the evidence relating to Parker’s murder helped to establish the relevant context and “was relevant to developing the circumstances leading up to the murder.” Bradley v. State, 787 So.2d 732, 742 (Fla. 2001). The State attempted to show that Kirkman had a sufficient motive to-have Darice killed and to1 show-why another person, Pratt, would agree to do the killing at Kirkman’s command, The State’s theory of motive was consistent with Pratt’s testimony regarding Kirk-man’s repeated inquiries into the identity of the police officer who picked up Darice at the Dixie Motel, as well as with Pratt’s repeated statements to Kirkman that Dar-ice was not cooperating with the police. The State’s theory was also consistent with Tamiko’s testimony that she was told that Darice had been causing problems. And it was consistent with Tamiko’s testimony that Kirkman was pacing around after Pratt called him in the early morning hours of March 17, 2006, the day of Dar-ice’s murder. In short, “[t]hese factors were necessary to adequately describe the events leading up to [the victim’s] murder.” McGirth, 48 So.3d at 787. The evidence at issue that Kirkman was involved in Parker’s murder thus was that a murder took place: (1) after Darice arrived in Florida; (2) less than three weeks before Darice’s murder; and (3) in which Pratt, the man whom Darice came to visit and with whom Darice stayed, also participated. This evidence was relevant to and inextricably intertwined with the crime charged. See id.

Even though dissimilar fact evidence may be relevant, a trial court “must also balance whether the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” Truehill v. State, 211 So.3d 930, 945 (Fla. 2017). This Court has held that introduction of evidence of dissimilar bad acts, even when otherwise relevant, constitutes reversible error when the trial court allows the evidence to become a feature of the trial:

This Court has explained that “relevant evidence of collateral crimes impermissi-bly becomes a feature of the trial when the evidence ‘transend[s] the bounds of relevancy to the charge being tried’ and the prosecution ‘devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’ ” Peterson v. State, 2 So.3d 146, 155 (Fla. 2009) (alteration in original) (quoting Conde v. State, 860 So.2d 930, 945 (Fla. 2003)). Where evidence does, in fact, become a feature of the capital trial, reversible error will result.

McCray v. State, 71 So.3d 848, 877 (Fla. 2011).

Here, the trial court did not allow the relevant dissimilar fact evidence to imper-missibly become a feature of the trial. Instead, the trial court carefully examined and ruled on the State’s Notice of Intent by restricting the evidence so that it did not unfairly prejudice Kirkman. The State then proceeded within the confínes established by the trial court. Namely, the State generally mentioned the indictment three times during opening statements and on a few brief occasions during its direct examination of Pratt. The State did not mention any specifics of the Parker murder, including that Pratt watched Kirkman shoot Parker. And the State did not mention the Parker murder at any other time during the guilt phase, including during closing. The record simply does not support the conclusion that the evidence became “a feature of the capital trial.” McCray, 71 So.3d at 877; see also Sexton v. State, 775 So.2d 923, 929-30 (Fla. 2000) (concluding that collateral bad acts testimony regarding the mysterious death and subsequent burial of the defendant’s infant grandchild was admissible because: (1) it was relevant to explain the defendant’s motive for killing his son-in-law (the father of the dead baby) and to show that the defendant had sufficient control over the defendant’s mentally challenged twenty-two-year-old son such that the son would agree to physically commit the murder at the command of the defendant; and (2) “there were no graphic details of the infant’s death or burial” and the testimony “did not become the focal point of the trial”). Although the evidence regarding the Parker murder was obviously prejudicial, it cannot be said that the danger of unfair prejudice substantially outweighed the probative value. § 90.403, Fla. Stat. (2015); see also Victorino v. State, 23 So.3d 87, 100 (Fla. 2009) (“On this record, we cannot say that the trial court abused its discretion in admitting the challenged evidence.”). Accordingly, the trial court did not abuse its discretion.

Lastly, Kirkman attempts to support his argument that he was unfairly prejudiced during the guilt phase by pointing to the following two events that subsequently took place during the penalty phase: (1) Pratt testified that Darice knew of their drug dealing but did not know of their involvement in the Parker murder; and (2) the jury rejected the State’s proposed witness-elimination aggravator. Even assuming that these penalty phase events are pertinent to Kirkman’s guilt phase claim, his arguments do not merit a new trial.

As an initial matter, the issue of whether Darice had actual knowledge of the Parker murder is not the same as the issue of whether Kirkman believed she had or may have had such knowledge. And as to the proposed witness-elimination aggravator, it is simply unknown why the jury did not unanimously find that the aggravator was proven beyond a reasonable doubt. We decline to speculate regarding the many possible reasons. What is known, however, is that the disputed evidence was relevant to prove the State’s theory of the case and was not unfairly prejudicial. What is also known is that the jury unanimously concluded that Kirkman was responsible for Darice’s murder. As explained next, there was competent, substantial evidence to support the jury’s conclusion.

Competent, Substantial Evidence

Kirkman does not separately challenge the sufficiency of the evidence. Nevertheless, this Court independently reviews the record in all death penalty cases to determine whether competent, substantial evidence supports the conviction. See Fla. R. App. P. 9.142(a)(5); Pham v. State, 70 So.3d 485, 501 (Fla. 2011). In conducting its independent review, this Court “view[s] the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006).

Here, Kirkman was charged with first-degree premeditated murder. Because the indictment charged premeditated murder, the State was permitted to prosecute Kirk-man “under alternative theories of premeditated and felony murder.” Kearse v. State, 662 So.2d 677, 682 (Fla. 1995). Indeed, the jury was instructed on both first-degree premeditated murder and first-degree felony murder, with the underlying felony being kidnapping. The jury then found Kirkman guilty of first-degree murder but did not specify whether the State proved premeditated murder, felony murder, or both. Consequently,- Kirkman’s conviction should be upheld if “the evidence is sufficient to establish either felony murder or premeditation.” Crain v. State, 894 So.2d 59, 78 (Fla. 2004). We conclude that there is competent, substantial evidence to support Kirkman’s conviction under either form of first-degree murder.

Regarding ■ first-degree premeditated murder, the State produced direct evidence from Pratt that Kirkman planned, ordered, and directed the murder, including that Kirkman supplied the- items used in the murder. Pratt testified to the time-line of events that culminated in the murder, beginning with Pratt seeing Darice with an off-duty police officer and then promptly telling Kirkman about it. Pratt testified that Kirkman believed Darice was cooperating with police and that Kirkman ordered Pratt to bury Darice or else both he (Pratt) and Darice would be killed. Pratt also testified to the details of the murder, including . that Kirkman drove around for more than thirty minutes before selecting the burial site and that Kirkman, who was carrying a gun, then directed and controlled every step in the process.

Pratt’s vei’sion of events was corroborated by the testimony of Tamiko, Kirkman’s girlfriend. She testified that Pratt called Kirkman and then came over around 2 a.m. on March 17, 2006, the day of Darice’s murder. She also testified that Kirkman was pacing around after receiving Pratt’s call. And she further testified that after Pratt left her house and then came back with Darice later that morning, Kirkman got into the van and left with' the two' of them. Pratt’s version of events was also corroborated by the video from Home Depot showing that instead of taking Darice to the airport as Kirkman had told Tamiko they were going to do, Kirkman instead went to the local Home. Depot and purchased a shovel, a bag of concrete mix, and a roll of- duct tape—the very three things used to murder Darice later that same day. And Pratt’s testimony regarding the physical details of. the burial was corroborated upon the discovery and examination of Darice’s remains.

Based on a review of the evidence in-this record, we conclude that the jury could have found that Kirkman had a “fully formed conscious purpose to kill.” Asay v. State, 580 So.2d 610, 612 (Fla. 1991). We also conclude' that premeditation can be inferred in this case simply from “the manner in which the homicide was committed.” Bradley, 787 So.2d at 738 (quoting Norton v. State, 709 So.2d 87, 92 (Fla. 1997)). The testimony of both Pratt and the Medical Examiner showed that Darice was alive and bound with duct tape at the time she was buried. The evidence also showed that Kirkman made a conscious decision to put-chase the burial supplies from Home Depot and then to stand over and direct the burial process, including the pouring of concrete over the victim. It is evident that Kirkman “had time even after he began” orchestrating and directing the process “to stop himself before” the murder was completed. Sparre v. State, 164 So.3d 1183, 1200 (Fla.), cert. denied, — U.S, —, 136 S.Ct. 411, 193 L.Ed.2d 325 (2015); see also Patrick v. State, 104 So.3d 1046, 1063 (Fla. 2012) (“The record here demonstrates sufficient evidence for the jury to have inferred that [the defendant] did intend for [the victim] to die.”). In short, there is competent, substantial evidence here to suppox’t a conviction of first-degree premeditated murder. ‘

Regarding first-degree felony murder, with the underlying felony being kidnapping, the trial court gave the standard jury instructions. See Fla. Std. Jury Instrs. (Crim.) 7.3, 9.1. To specifically prove the underlying felony of kidnapping, the State was required to prove the following three elements beyond a reasonable doubt: (1) Kirkman forcibly, secretly, or by threat, confined, abducted, or imprisoned Darice against her will; (2) Kirkman had no lawful authority to do so; and (3) Kirkman acted with intent to inflict bodily harm upon or to terrorize Darice or another person. See § 787.01(l)(a), Fla. Stat. (2005); Fla. Std. Jury Instr. (Crim.) 9.1.

Here, the evidence established that Dar-ice was unlawfully abducted against her will and that Kirkman intended'to inflict bodily harm upon or to terrorize1 her. Indeed, the evidence established that Kirk-man intended for Darice to be buried alive. Again, the State produced direct evidence from Pratt that Kirkman planned, ordered, and directed thé kidnapping and murder. That planning included: (1) Kirkman purchasing and supplying the items, including the duct tape; (2) Kirkman driving Pratt and Darice around until personally selecting the burial site; and (3) .Kirkman ordering Pratt to restrain Darice with the duct tape to prevent her from escaping. In addition to Pratt’s testimony, Tamiko’s testimony placed Kirkman in the van with Pratt and Darice on the day of the murder, the Home Depot video shows Kirkman then purchasing the murder items, and the discovery and examination of Dariee’s remains confirmed that her hands and feet had been bound with duct tape and that her mouth' had been covered with duct tape. Lastly, Pratt and the Medical Examiner both testified that Darice was alive at the time she was buried, and Pratt testified that Darice was terrified during the ordeal.

Based on a review of the evidence in.this record, we conclude that competent, substantial evidence exists to support a conviction of first-degree felony murder. The evidence supports the conclusion that Kirkman played a significant role not just in the kidnapping .but in the murder itself.

Penalty Phase Claim—Hurst

We vacate Kirkman’s death sentence and remand for a new penalty phase under Hurst. Under this Court’s precedent, the jury’s nonunanimous recommendation of death in this case violates Hurst, and that error is-not harmless beyond'a reasonable doubt. ■ ■ -

In January 2016, the United States Supreme Court issued its decision in Hurst v. Florida, in which the Court held that Florida’s former capital sentencing scheme violated the Sixth Amendment because it “required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty” even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida, 136 S.Ct. at 619.

During the pendency of Kirkman’s appeal, on remand in Hurst, this Court held that

before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find.all the aggravating factors that were proven beyond a reasonable doubt, unanimously-find-that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.

Hurst, 202 So.3d at 57. This Court also determined that Hurst errors are capable of harmless error review. Id. at 67. Since issuing Hurst, this Court has repeatedly-declined to find harmless Hurst error when the jury nonunanimously recommends to impose death, including in the context of ten-to-two jury recommendations. See, e.g., Banks v. State, 219 So.3d 19, 32-33 (Fla. 2017); Abdool v. State, 220 So.3d 1106, 1115-16 (Fla. 2017).

.Here, during the penalty phase, the jury unanimously found that the State proved five of its six proposed aggravators. But the jury did not unanimously recommend death, instead recommending death by a vote of ten to two. Under this Court’s precedent, we are “unable to determine or speculate wjiy the dissenting jurors ... voted for a sentence of life imprisonment rather than the death penalty.” Davis, 217 So.3d at 1020; see also Sexton v. State, 221 So.3d 547, 559 (Fla. 2017) (“In light of the nonunanimous jury recommendation to impose a death sentence, it cannot be said that the failure to require a unanimous verdict was harmless.”). Because the Hurst error was not harmless beyond a reasonable doubt, we vacate Kirkman’s death sentence and remand for a new penalty phase.

CONCLUSION

For the reasons stated above, we affirm Kirkman’s conviction, vacate Kirkman’s death sentence, and remand for a new penalty phase.

It is so ordered.

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

LAWSON, J., concurs specially with an opinion.

CANADY and POLSTON, JJ., concur as to the conviction and dissent as to the sentence.

LAWSON, J.,

concurring specially.

I fully concur in that portion of the opinion affirming Kirkman’s conviction and concur specially in the reversal of Kirk-man’s death sentence. See Okafor v. State, 225 So.3d 768, 775-76 (Fla. 2017) (Lawson, J., concurring specially).

      . Although we recognize there is a distinction between "cement” and "concrete,” we use the terms interchangeably, as was done at trial.

      . The remaining evidence presented at trial largely consisted of testimony from various individuals—including the officer who found Darice's remains, a crime scene investigator, a forensic anthropologist, the medical examiner, and a forensic DNA scientist—regarding the burial site, the excavation process, and the testing processes by which Darice’s remains were identified.

      . Freeman, who was no longer with the Cocoa Police Department at the time of the trial, testified that the woman to whom he issued the trespass warning told him that her name was Tamiko Smith but that he later found out the woman was actually Darice. He identified a picture of Darice and testified that Darice was the woman to whom he issued the warning.

      . Pratt and Tamiko both identified Kirkman in the video.

      . By the time of the third call, Bongo was at Tamiko's house and, using code language, Kirkman spoke directly with" Bongo about burning the van.

      . Tamiko testified that she later entered a plea to arson in which she was given probation and avoided prison time.

      . Pratt did not enter into the plea agreement until July 2010, when he again spoke with law enforcement and the State Attorney’s Office.

      . The other shovel played no part in the inves- ¡ • tigation. ,

      . The State also introduced the testimony of the surviving victim who was in Parker’s car with Parker the night Parker was murdered. The surviving victim testified that, among other things, he was sitting in the driver's seat while Parker was sitting in the front passenger seat of the vehicle.

      . Spencer v. State, 615 So.2d 688 (Fla. 1993).

      ,Kirkman also asserts that the trial court committed "serious constitutional error” by allowing the jury to watch the portion at the very end of Kirkman’s one-hour interview with investigators that shows the investigators concluding the interview after Kirkman invokes his right to remain silent and to an attorney. However, Kirkman concedes that the issue was not preserved for appellate review through a contemporaneous objection, and he presents no argument for fundamental error on appeal. We do not consider this issue.

      . Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

      . Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127(1987).

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

      . The State also sought to introduce evidence of (1) events surrounding the arrest of Pratt, Kirkman, and Buckner in South Carolina for federal drug and weapons offenses, and (2) Kirkman’s involvement in thé burning of Pratt's rented minivan. The trial court ultimately determined that the South Carolina arrest was generally unrelated to Darice's murder and that no specifics of that arrest could be discussed at trial, but the jailhouse phone calls and the burning of the van were relevant and admissible. The trial court's rulings on these matters are not at issue in this direct appeal.

      . This Court has also held that errors with respect to the introduction of dissimilar fact evidence are subject to the harmless error test. See, e.g., Delhall v. State, 95 So.3d 134, 167 (Fla. 2012) (finding harmless error in the guilt phase even though, among other things, "the State presented a substantial body of evidence ... that exceeded the scope of evidence necessary to simply prove” the defendant's motive to commit the murder).

      . It is unknown how many jurors actually concluded that the aggravator was not proven beyond a reasonable doubt.

      . Hurst applies to the instant case, which is before this Court on direct appeal. See White v. State, 214 So.3d 541, 549 (Fla. 2017).

      . Before Kirkman’s trial began in 2016, certain recent amendments to Florida’s capital sentencing scheme had gone into effect. Those amendments, which were made shortly after the Supreme Court decided Hurst v. Florida in January 2016, included the new requirement that in order for the jury to recommend a sentence of death, at least ten jurors must vote for a sentence of death (as opposed to a simple majority). See ch, 2016-13, §§ 3, 7, at 4, 23, Laws of Fla.; see also § 921.141(2)(c), Fla. Stat. (2016). After Kirkman was cpnvict-ed and sentenced, this Court determined the Legislature’s ten-vote requirement to be unconstitutional because it fell short of "the constitutionally required unanimous, twelve-member jury.” Perry v. State, 210 So.3d 630, 640 (Fla. 2016).


source: Caselaw Access Project

author: Ciklin, J.

license: Public Domain

text:
    Abdul SALAM and Ghazala K. Salam, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, Successor in Interest to Wachovia Bank, National Association, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-AR13; Wells Fargo Bank N.A.; the Town Foundation, Inc.; the Ridges Maintenance Association, Inc.; Any and All Unknown Parties Claiming by, through, Under and Against the Herein Named Individual Defendant(s) Who Are Not Known to be Dead or Alive, whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants; Unknown Tenant 1; Unknown Tenant 2; Unknown Tenant 3; and Unknown Tenant 4; the Names Being Fictitious to Account for Parties in Possession, Appellees.
    No. 4D16-1693
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017]
    Chase E. Jenkins of Loan Lawyers, LLC, Fort Lauderdale, for appellants.
    Sara F. Holladay-Tobias, C.H. Houston, III, and Monica L. Haddad Forbes of McGuireWoods LLP, Jacksonville, for ap-pellee U.S. Bank National Association, As Trustee, Successor In Interest To Wacho-via Bank, National Association, As Trustee For Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-AR13,
   Ciklin, J.

In this appeal from a foreclosure judgment, Abdul and Ghazala Salam (“the homeowners”) argue that the trial court erred in denying their motion for involuntary dismissal and entering a final judgment where the mortgage did not contain a legal description for the property. We find that the plaintiff in the underlying foreclosure suit presented sufficient evidence to establish a prima facie case, and we affirm.

In 2005, Abdul Salam executed a note in favor of the lender, Wells Fargo Bank, N.A. The homeowners executed a mortgage securing the note. The mortgage identifies the lender as the mortgagee and provides the property address. The mortgage also contains a stamp reflecting recording information, including a recording date and time, and book and page number references:

INSTR # 104925505
OR BK 39480 PAGES 686-710
RECORDED 04/20/05 15:56:30
BROWARD COUNTY COMMISSION
DOC STMP-M: $1624.00
INT TAX: fl $928.00
DEPUTY CLERK 3075
# 1, 25 Pages

In 2014, U.S. Bank National Association, as Trustee, Successor in Interest to Wa-chovia Bank, National Association, as Trustee for Wells Fargo Asset Securities Corporation,. Mortgage Pass-Through Certificates, Series 2005-AR13 (“the bank”), brought suit against the homeowners, seeking to foreclose on the mortgage. The bank identified the official records book of Broward County where the mortgage securing the note is recorded: “Official Records Book 39480, at Page 686, of the Public Records of Broward County, Florida.”

During trial,, the original mortgage was introduced into evidence by the bank. Although the original mortgage referenced an attached legal description, there was no attachment to the original mortgage. An assignment was also introduced into evidence. It provided a legal description for the mortgaged property, and stated that the mortgage was “recorded April 20, 2005 in Official Records Book 39480 at Page 686 of the public records of BROWARD County ....”

After the bank rested, the homeowners moved for involuntary dismissal, arguing that the bank “failed to state a cause of action” in the absence of a legal description in the mortgage. The homeowners further argued that a legal description is necessary to protect third parties: “It could be foreclosing on only part of the actual subject property.” The homeowners also pointed out that the bank had not pled a reformation count.

The bank relied on the legal description contained in the assignment. It also argued that the homeowners’ argument was waived, as it was not raised as an affirmative defense.

The trial court denied the motion for involuntary dismissal, reasoning that the absence of a legal description was not raised in the homeowners’ affirmative defenses.

On appeal, the homeowners first argue that they did raise the absence of a legal description in their affirmative defenses, and that their denial of the bank’s allegations was sufficient to require the bank to prove that there was a mortgage on the property. The homeowners also argue that the bank failed to prove a lien existed on the subject property, because the note, mortgage, and modification entered into evidence did not contain a legal description of the property. We need not entertain the homeowners’ first argument, as we find that the bank presented a prima facie case.

We review a trial court’s ruling on a motion for involuntary' dismissal de novo. Deutsche Bank Nat’l Trust Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). “To establish a prima facie case, a foreclosure plaintiff must prove: (1) an agreement between the parties; (2) a default by the defendant; (3) acceleration of the debt to maturity; and (4) the amount due.” Liberty Home Equity Sol., Inc. v. Raulston, 206 So.3d 58, 60 (Fla. 4th DCA 2016). “In other words, the plaintiff must introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the outstanding debt.” Id.

“[T]he lien of a mortgage encompasses the property described in the mortgage. Thus, for a mortgage to create a valid lien, the mortgage must contain a sufficient description of the property to enable the parties to ascertain and locate the property affected by the lien.” Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017) (citation omitted); see also § 697.02, Fla. Stat. (2014) (“A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”).

“Florida courts have repeatedly held descriptions of property in. mortgages sufficient despite minor mistakes and irregularities where the description of the property intended to be encumbered could be determined from a review of the entire instrument.” Regions Bank v. Deluca, 97 So.3d 879, 884-85 (Fla. 2d DCA 2012). As early as 1907, the Florida Supreme Court elaborated on the sufficiency of a property description in a mortgage:

It must be borne in mind that the contest here is directly between the parties to the mortgage. As to the description of the property mortgaged, the rule is ... as follows: ‘As against third persons the mortgage must point out the subject-matter, so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests; but between the parties it is only necessary to identify the chattels, so that the mortgagee may say with a reasonable degree of certainty what property is subject to his lien.’

Davis v. Horne, 54 Fla. 563, 45 So. 476, 477 (1907) (citation omitted). There, the mortgaged property was described as “all the following described property, situate, lying, and being in Suwanee [Cjounty, Florida, to wit: All the real estate and timber or timber interest, of whatsoever nature, kind, or description, that is owned by the parties of the first part, or either of them Id. at 477. The mortgage further described specified personal property “together with the farm, and the improvements thereon, that is now owned and that may be hereafter owned by the said parties of the first part in said county during the time that the parties of the first part, or either of-them, may be-indebted to the party of the second part' Id. The Florida Supreme Court found the description was sufficient as to the parties to the mortgage, and that parol evidence was admissible to identify the property. Id.

We can also find guidance in cases involving the sufficiency of property descriptions in deeds. In Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194 (Fla. 2d DCA 1998), the court summarized our courts’ holdings:

To effect a- valid conveyance of real property, a deed or other instrument must describe the property such that it is evident that a particular parcel, and not a different or unspecified one, is to be conveyed. See Simons v. Tobin, 89 Fla. 321, 104 So. 583 (1925); Lente v. Clarke, 22 Fla. 515, 1 So. 149 (1886). Florida follows a liberal policy in this regard. See Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314 (1943). The rule is that a description is sufficient if, by relying on the description read in light of all facts and circumstances referred to in the instrument, a surveyor could locate the land. See Burns v. Campbell, 131 Fla. 630, 180 So. 46 (1938); Bajrangi v. Magnethel Enterprises, Inc., 589 So.2d 416 (Fla. 5th DCA 1991).
Following this rule, Florida courts have upheld conveyances that identified the subject properties by their street addresses, Bajrangi, 589 So.2d 416; Baker v. Baker, 271 So.2d 796 (Fla. 3d DCA 1973); or by designations commonly understood in the communities in which the properties were located, Simons, 89 Fla. 321, 104 So. 583 (“Esmerelda Hotel Property”); Mitchell, 152 Fla. 843, 13 So.2d 314 (“Palm Beach Farms”); and by such seemingly imprecise language as “my forty near the Garrison lands, in Hernando County,” Lente, 22 Fla. 515, 1 So. 149.
On the other hand, if the instrument’s description of the property is patently ambiguous, and the instrument furnishes no other information from which the parties’ intention can be gleaned, the attempted conveyance is void, and parol evidence may not be employed to cure the deficiency. For example, in Carson v. Palmer, 139 Fla. 570, 190 So. 720 (1939), the deed at issue gave two inconsistent legal descriptions, describing two separate parcels. Our supreme court held that, in the absence of other language in the instrument showing the grantor’s intent as to which parcel was tó be conveyed, the deed was void. In Mitchell v. Thomas, 467 So.2d 326 (Fla. 2d DCA 1985), the deed described the property by metes and bounds, but omitted two boundary calls, such that the description did not close. This court held that the attempted conveyance was void because the deed contained insufficient information to permit a surveyor to locate the land to be conveyed.
[A] property description may be aided by reference to the public records if the instrument contains information sufficient to identify the property through that line of inquiry. “Extrinsic facts pointed out in the description may be resorted to to ascertain the land conveyed, and the property may be identified by extrinsic evidence, as in the case of records of the county where the land is situate.”

Id. at 1196-97 (emphasis omitted).

In Mendelson, the final judgment of divorce awarded the husband an interest in the property, and described it as follows: “[T]he property consisting of approximately 1 adjacent acre and the former marital home as well as approximately 1 acre of vacant land located on the corner of South Race Track Road and State Street in Hillsborough County, Florida.” Id. at 1195. The appellate court found that this was sufficient:

Here, the ... divorce judgment reflected that it conveyed an interest in property owned by one or the other of named parties. The property was described by its approximate quantity and location at a particular intersection within Hillsborough County. Thus, the information on the face of the document supported a line of inquiry in the public records of Hillsborough County to ascertain whether they described a property that met all the mentioned criteria.

Id. at 1197. The court acknowledged the “off chance” that more than one parcel of property would meet the description contained in the judgment, but concluded “that possibility does not invalidate the property description.” Id. Rather, the defendant would have the burden to prove that he owned more than one parcel of property matching the description. Id.

Here, the mortgage is between named parties and contains a property address and a stamp with recording information. We find that the bank presented a prima facie case of foreclosure.

Affirmed.

Warner and Klingensmith, JJ., concur.

      . The homeowners rely on a reformation case, Losner v. HSBC Bank USA, N.A., 190 So.3d 160 (Fla. 4th DCA 2016), but that opinion does not address whether a property address and recording information in a mortgage constitutes a sufficient property description.


author: LUCAS, Judge.

text:
    David DUNCAN, Appellant, v. Thalia Tatham BRICKMAN f/k/a, Thalia Duncan, Appellee.
    Case No. 2D16-4251
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    Rehearing Denied November 14, 2017

      Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa and Kendra R. Davis of Law Office of Kendra Davis, P.A., Tampa, for Appellant.
    Mark A. Neumaier, Tampa, for Appel-lee.
   LUCAS, Judge.

David Duncan, the father of a minor child, A.L.D., appeals from orders that emanated from a contempt proceeding in which the circuit court curtailed his time-sharing with A.L.D. For the reasons that follow, we must reverse.

I.

The protracted litigation between Mr. Duncan and A.L.D.’s mother, Thalia Tat-ham Brickman, originated in 2006, when A.L.D. was sixteen months old. Initially, the parties were able to settle several issues, including those relating to the distribution of their property and debts. Disputes about the rearing of their child, however, remained. In August of 2008, the trial court entered a temporary timeshar-ing order awarding majority timesharing to Mr. Duncan, while referring the fínal determination of paternity, timesharing, and child support to a general magistrate.

The general magistrate would not conduct hearings on these issues until the summer of 2010, two years after the referral, and those hearings would continue into the spring of 2011 before a report and recommendation was issued that winter. Ms. Brickman filed exceptions to the report and recommendation, and in the summer of 2012, now four years after the initial referral, the trial court held a hearing on those exceptions. Following that hearing, the trial court referred the matter back to the general magistrate for clarification of a procedural issue concerning rebuttal witnesses. In the meantime, from September 2011 to September 2012, Ms. Brickman had filed five motions for.contempt, each alleging that Mr. Duncan had violated the temporary timesharing order, .which, four years after its entry, was still the operative timesharing order in effect. The trial court heard' these motions in a consolidated fashion over the course of two hearings, one held in the spring, and, the other in the summer, of 2013. The hearings concluded, and the presiding judge informed counsel for the parties that he would reserve ruling and render an order at a later time.

The court would not issue that order for three years.

After the contempt hearings concluded, this matter lay dormant for several months until the spring of 2014, when the general magistrate—almost two years after the matter was referred back to him as a result of Ms. Brickman’s exceptions—issued a new report and. recommendation. Ms. Brickman filed exceptions to this new report and recommendation as well, but for reasons unclear, the trial court did not rule on these exceptions for another two years. While Ms. Brickman’s latest exceptions remained pending, the circuit court entered an order on her contempt motions on June 13, 2016.

In its order, the trial court found Mr. Duncan in contempt of the temporary timesharing order, which, by now, had been in force for eight-years. As part of its contempt order, the trial court modified the parties’ timesharing with A.L.D. Mr. Duncan had enjoyed majority timesharing for the past eight years, but the contempt order purported. to grant both parents equal timesharing. In that regard, the order stated:

The prior order relating to temporary time-sharing is modified in the following respects. - Mr. Duncan shall no longer have temporary majority time-sharing. Instead, temporary time-sharing shall be shared such that -Mr. Duncan shall have fifty percent time-sharing with the Minor Child and Ms. Brickman shall have fifty percent time-sharing with the Minor Child.
Mr. Duncan is again admonished to refrain from exercising sole parental responsibility and from conduct that is not conducive to effective co-parenting. Further sanctions may be imposed if Mr. Duncan’s improper conduct continues.

" This new timesharing arrangement would only last for two months, however, as in August of 2016, the trial court denied Ms. Brickman’s exceptions to the general magistrate’s second report and recommendation. Unfortunately, the trial court then proceeded to confuse matters through the entry of conflicting orders—the likely result of the prolonged delays in issuing its rulings. On August 19, 2016, the trial court entered a final order of paternity adopting the report and recommendation éntered by the general magistrate five years prior. That report and recommendation had recommended that Mr. Duncan receive majority timesharing. As a result, although Mr. Duncan had been stripped of his majority timesharing just two months earlier in the contempt order, the previous timesharing schedule that gave him majority timeshar-ing was effectively reinstated. .

Ms. Brickman filed a timely motion for rehearing and clarification of the final order of paternity, pointing out that the court’s final order of paternity was based on evidence taken in 2011, while the contempt order had been based on evidence taken in 2013. Thus, Ms. Brickman argued, it was no longer proper for the trial court to fashion a timesharing schedule on the general magistrate’s report and recommendation since the magistrate’s findings were based upon stale , evidence (in comparison to the evidence adduced during the 2013 contempt hearing). The trial court apparently agreed and on August 29, 2016, as A.L.D. turned eleven, entered an order on Ms. Brickman’s motion in which it explained that the timesharing provisions of the contempt order “supersede and control over” those in the final order of'paternity—in effect, implementing the timeshar-ing schedule the trial court awarded in its 2016 contempt order.

Mr. Duncan now appeals the clarified final order and the order of contempt that preceded it. We have jurisdiction.

II.

This paternity case has become something of a procedural quagmire, but the legal issues before us are fairly discrete. Among his appellate arguments, Mr. Duncan points out two shortcomings in the trial court’s orders with which we can readily agree. First, as a matter of law, the trial court could not modify a custody order as a sanction for Mr. Duncan’s contempt. Second, the contempt order itself— rendered three years after the underlying evidentiary hearing and, in some instances, five years after the allegedly contumacious conduct occurred—cannot stand as a matter of judicial discretion. We address each point in turn.

In parenting disputes such as the case before us, a motion for contempt is ordinarily filed when a parent seeks judicial intervention to enforce an existing parenting plan; as a procedural vehicle to modify a parenting plan, a contempt motion is perhaps less than ideal. See La-Loggia-VonHegel v. VonHegel, 732 So.2d 1131, 1133 (Fla. 2d DCA 1999) (observing that “the general purpose of a civil contempt order is to obtain compliance with the trial court’s initial order”)." Regardless, one prohibition has emerged and remained clear. A court cannot modify timesharing as a sanction for a parent’s contempt of a custody order. See Hunter v. Hunter, 65 So.3d 1213, 1214-15 (Fla. 2d DCA 2011); Simpson v. Young, 884 So.2d 186, 188 (Fla. 2d DCA 2004); Pelliccia v. Arce, 867 So.2d 619, 620-21 (Fla. 2d DCA 2004). As we explained in VonHegel:

The sanction of changing custody does not coerce compliance; rather, it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct. In comparison, an award of make-up or additional visitation may serve both to redress the wrong to the parent and to effectuate compliance with the court’s authority.

732 So.2d at 1133.

It is clear to us that the trial court modified Mr. Duncan’s established time-sharing with A.L.D. as a sanction for Mr. Duncan’s conduct. Indeed, Mr. Duncan’s contumacious actions, and the provisions of the temporary order that he violated, were the only stated reasons for why the court modified A.L.D.’s timesharing schedule. And the order’s admonishment towards its conclusion, that Mr. Duncan might be subject to “further sanctions” if his “improper conduct continues,” leaves no room for doubt what underlay the court’s decision to modify the prior timesharing schedule. The trial court sanctioned Mr. Duncan by reducing his timesharing with A.L.D., which was improper as a matter of law. That error alone would warrant reversal of the trial court’s orders. See Hunter, 65 So.3d at 1215; Simpson, 884 So.2d at 188; Pelliccia, 867 So.2d at 621; VonHegel, 732 So.2d at 1133.

There is an additional basis for reversal of the trial court’s contempt order that we must also touch upon. The proceedings below were marked by repeated, unexplained delays between the conclusion of evidentiary hearings and rulings from the trial court. See Fla. R. Jud. Admin. 2.215(f) (“Every judge has a duty to rule upon and announce an order or judgment on every matter submitted to that judge within a reasonable time.”). The most glaring of which was the three-year span between when the trial court completed the hearings on Ms. Brickman’s contempt motions and when it finally issued its ruling on those motions. Such a prolonged period of silence from the court assuredly contributed to confusion in the court’s subsequent rulings and consternation for the parents who found themselves in litigation before the court. As we observed in McCartney v. McCartney, 725 So.2d 1201, 1202 (Fla. 2d DCA 1999), substantial delays “cause litigants and their counsel needless anxiety and expense. They also undermine confidence in the judicial system.” See also Ritter v. Dep’t of Children & Family Servs., 700 So.2d 804, 806 (Fla. 5th DCA 1997) (Harris, J., concurring) (remarking that “litigant’s rights die because of judicial indecision,” and how “it is hard to imagine any excuse for a trial court, not ruling within six months from the completion of the evidence”).

We ordinarily give deference to a trial court’s findings concerning contempt in family law proceedings and review such orders for an abuse of discretion. See Brooks v. Brooks, 164 So.3d 162, 163 (Fla. 2d DCA 2015). But where so much time elapses between the evidence the trial court considers and the contempt ruling it ultimately issues that we can no longer retain any confidence that the court’s ruling was still a reasonable decision by the time of its issuance, that discretion is abused. Cf. Schang v. Schang, 53 So.3d 1168, 1169-70 (Fla. 1st DCA 2011) (“In family law cases in particular, ‘trial courts have a responsibility to render their decisions under circumstances which give no doubt but that the matter was seriously and promptly considered.’ ” (quoting Falabella v. Wilkins, 656 So.2d 256, 257 (Fla. 5th DCA 1995))). The trial court abused its discretion by withholding its ruling on Ms. Brickman’s contempt motions for three years, and so we are compelled to reverse the trial court’s contempt order for that reason as well.

III.

There may remain a question, perhaps one of vital concern for these litigants: what is the operative parenting plan and timesharing schedule for A.L.D. going forward? It is doubtful that the trial court’s entry of the August 19, 2016, judgment (which it later purported to “clarify” by adopting a superseding timesharing allocation from the contempt order that we have now reversed) was ever truly intentional. That judgment, however, has not been appealed in this cáse.' The temporary-relief order that was first fashioned when A.L.D. was three years old may no longer be in her best interests now that she is twelve. For more than a decade, these parents have been in litigation over how to ■ rear their child, and so it troubles us to leave them in, this state of affairs. But we, as an appellate court, cannot fashion a parenting plan for A.L.D. Cf. Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”), On remand, we encourage the trial court to convene a case management conference to address whether further proceedings are still needed to resolve any parenting disputes that may remain concerning A.L.D.—and to promptly schedule hearings and expeditiously rule upon them if there are.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

      . This case began as a dissolution of marriage case, Ms. Brickman filed a petition for a dissolution of marriage against Mr. Duncan, seeking entry of a parenting plan, child support, and alimony, Mr. Duncan filed an answer and a motion to dismiss, claiming that the parties never entered into a valid marriage with the intent of being married to one another. He also filed a counterpetition for paternity, in which he acknowledged that the two parties had A.L.D. in common. Ms. Duncan filed an "amended petition related to minor child and complaint for damages and other relief,” again seeking entry of a parenting plan and child support but also alleging one count of fraudulent inducement and one count of breach of contract, Ms. Duncan's civil claims were transferred to the lower court’s circuit civil division, while the remainder of the amended petition became the operative pleading in this case. From the arguments presented to us, it appears that the question of whether this couple was ever married has been resolved.

      . We note that several of the alleged violations concerned conduct on the part of Mr, Duncan that would have occurred two years before the hearing on the contempt motions.

      . Cf. Kelly v. Snietka, 155 So.3d 1278, 1278 (Fla. 4th DCA 2015) (exercising jurisdiction to review orders entered prior to final judgment in paternity action; “The court may review any ruling or matter occurring before filing of the notice [of appeal].” (emphasis omitted) (quoting Fla. R. App. P. 9.110(h))).

      . Those courts that have permitted timeshar-ing modification in the context of a contempt proceeding have taken care to point out that the moving party had affirmatively alleged and proven a substantial change in circumstances, that the minor child’s best interests required the modification, and that sufficient notice of the proposed modification was afforded to the nonmoving party. See, e.g., Cockrell v. Kinnett, 177 So.3d 1041, 1042-43 (Fla. 5th DCA 2015); Campbell v. Campbell, 100 So.3d 763, 765 n.3 (Fla. 4th DCA 2012).


author: ROTHSTEIN-YOUAKIM, Judge'.

text:
    Moises RUBIO, DOC #H47218, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5603
    District Court of Appeal of Florida, Second District.
    Opinion filed October 27, 2017.
    Rehearing Denied January 8, 2018
    Howard L. Dimmig, II, Public Defender, and Caroline Joan S. Picart, Special Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laurie Benoi1>-Knox, Assistant Attorney General, Tampa, for Appel-lee.
   ROTHSTEIN-YOUAKIM, Judge'.

In 2013, Moisés Rubio began communicating online with a person- whom- he believed to be a fourteen-year-old girl. When he ultimately appeared at her doorstep to have sex -with her, however, he discovered that she was actually a Polk County Sheriff’s deputy. A jury convicted Rubio of traveling to meet a minor, in violation of section 847.0135, Florida Statutes (2012) (Count 2); using a .two-way communications device to facilitate or further the commission of a felony, in violation of section 934.215, Florida Statutes (2012) (Count 3); and attempting to engage in sexual activity with a child twelve years of age or older but less than sixteen years of age, in violation of sections 800.04(4) and 777.04(1), Florida Statutes (2012) (Count 4).

On appeal, Rubio argues that the trial court erred in denying his motions to dismiss all counts based on entrapment and in denying his motion to dismiss Count 4 based on legal impossibility. He also argues for the first time that the prohibition against double jeopardy precluded his adjudication and sentencing on both Counts 2 and 3. We affirm without comment the court’s denial of Rubio’s motions to dismiss.

We remand, however, for vacatur of the conviction and sentence on Count 3 on double jeopardy grounds. Although Ru-bio did not'argue in the trial court that the charge of unlawfully using a two-way communications device should have been subsumed within the charge of traveling to meet a- minor, a double jeopardy violation constitutes a fundamental error that we may address for the first time on appeal. See Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014). And, because the amended information charged Rubio with committing both of those offenses within the same time period, i.e., “on or between June 9, 2013[,] and June 11, 2013,” our precedent dictates that we find such a violation in this case. See id. at 400 (holding that when State charges defendant with both unlawfully using two-way communications device and traveling during same, time period, State charges single criminal episode regardléss of whether evidence could support finding of separate criminal episodes, and double jeopardy considerations require that ■ communications charge be subsumed within traveling charge). But see Lee v. State, 223 So.3d 342, 353 (Fla. 1st DCA 2017) (holding that examination of separate criminal episodes for double jeopardy purposes should encompass entire evidentiary record rather than just charging document and verdict form).

Accordingly, we reverse Rubio’s conviction and sentence for unlawfully using a two-way communications device as charged in Count 3 and remand for vacatur on that count. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part; remanded with instructions.

WALLACE and MORRIS, JJ., Concur.

      . Count 1 was dismissed.

      . The Table of Contents in Rubio's initial brief identifies an argument concerning the trial court's denial of his motion for a judgment of acquittal, but Rubio does not actually make such an argument in the body of his brief (although the State responds as if he does). In any event, we also affirm without comment-the court’s denial of that motion.


author: LaROSE, Chief Judge.

text:
    Anthony E. DOGODA, Jr., Appellant, v. Amy DOGODA, Appellee.
    Case No. 2D16-4447
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017

      Peter J. Mackey and B. Kyle Stalnaker of Mackey Law Group, P.A., Bradenton, for Appellant.
    Kenneth M. Poole, Jr. of Syprett, Mesh-ad, Resnick, Lieb, Dumbaugh, Jones, Kro-tec & Westheimer, P.A., Sarasota, for Ap-pellee.
   LaROSE, Chief Judge.

Anthony E. Dogoda, Jr. appeals an order denying his supplemental petition to modify alimony. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court abused its discretion in concluding that the filing date of the final dissolution judgment was the operative date from which to assess whether a subsequent substantial change in circumstances justified an alimony modification. Consequently, we reverse.

Background

The parties married in October 1991. Mr. Dogoda filed for divorce in March 2013. Eventually, the parties entered into a marital settlement agreement (MSA) that resolved all outstanding issues between them. As relevant here, the MSA obligated Mr. Dogoda to pay monthly du-rational alimony of $1250.

The MSA provided that it “shall become effective and enforceable when both parties have executed it.” The MSA was fully executed by September 19, 2014. Unfortunately, the trial court did not enter a final judgment of dissolution until December 30, 2014. While awaiting entry of the final judgment, Mr. Dogoda made the required alimony payments called for by the MSA.

Mr. Dogoda was a firefighter. During the time between execution of the MSA and entry of the final judgment, he engaged in fire department physical fitness drills. Because of his “horrible” performance, he considered retirement. He asked the City of Sarasota Firefighter’s Pension Board about possible 2015 retirement dates. Mr. Dogoda had explored his retirement options yearly for the previous ten years. In early December 2014, the Pension Board approved Mr. Dogoda’s retire'ment, effective January 23,2015.

Three months after his retirement, Mr. Dogoda petitioned for a downward modification of his alimony obligation. He cited to his reduced retirement income, which was due to the equitable distribution of his fire department retirement pension, coupled with the financial hardship caused by his. monthly alimony payment. After an evidentiary hearing, the trial court entered an order denying Mr. Dogoda’s petition.

The trial court found that Mr. Dogoda’s “retirement was contemplated prior to the actual [final judgment] being entered [on] December 30, 2014.” More specifically, the trial court observed that “Mr. Dogoda took a step to activate or put into place his retirement effective January, 2015[;] ... he took the step to have the Pension Board approve his retirement.”

Nonetheless, the trial court characterized Mr. Dogoda’s retirement as “voluntary in nature” with “nothing about him retiring or exercising his retirement option to be spiteful or in any way to thwart Ms. Dogoda from receiving any benefits to which she is entitled.” Rather, the trial court believed that it was constrained from awarding relief because Mr. Dogoda decided to retire before entry of the final judgment. Specifically, the trial court lamented that if it “could ignore the second prong of the three-prong test for modification of alimony, the court would have granted Mr. Dogoda’s [petition].”

Analysis

We review the trial court’s order under an abuse of discretion standard. See Driggers v. Driggers, 127 So.3d 762, 763 (Fla. 2d DCA 2013). Under Florida law,

[w]hen the parties enter into an agreement. for payments for ... alimony ,., in connection with a proceeding for dissolution ... and the circumstances or the financial ability of either party changes ... either party may apply to the circuit court ... for an order decreasing or increasing the amount of ,.. alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties ....

§ 61.14(l)(a), Fla. Stat. (2015).

The petitioner must show “that (1) there has been a substantial change in circumstances, (2) the change was not contemplated at the time of the final judgment of' dissolution, and (3) the change is sufficient, material, permanent, and involuntary.” Jarrard v. Jarrard, 157 So.3d 332, 336 (Fla. 2d DCA 2015) (citing Eisemann v. Eisemann, 5 So.3d 760, 762 (Fla. 2d DCA 2009)); see also Pimm v. Pimm, 601 So.2d 534, 536 (Fla. 1992). We know that when a party seeks to modify an Existing support order, “the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same.” § 61.14(7). Thus, Mr. Dogoda bears no heavier burden because the alimony award was instituted through an MSA rather than by court order.

In Pimm, 601 So.2d at 535, a case involving the retirement of the payor spouse, the Florida Supreme Court held that retirement, if reasonable, can support the finding of a substantial change in circumstances. The. reasonableness of the voluntary retirement depends on “the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire.” Id. at 537; see also Wilson v. Wilson, 37 So.3d 877, 881 (Fla. 2d DCA 2010) (“In Pimm, the supreme court held that voluntary retirement is a change of circumstances that may be considered, together with other relevant factors, in determining whether to modify alimony if the retirement is reasonable.”). The trial court found Mr. Dogoda’s retirement to be reasonable, and Ms. Dogoda does not challenge this finding on appeal.

Key to the disposition of the case before us is whether, under Pimm’s second prong, Mr. Dogoda’s retirement “was ... contemplated at the time of final judgment of dissolution.” Pimm, 601 So.2d at 536. Recall the unusual factual scenario before us: between the date the parties executed the MSA and entry of the final judgment of dissolution, Mr. Dogoda decided to retire. Ms. Dogoda contends that Mr. Dogoda’s retirement cannot serve as a basis for alimony modification because it was contemplated before entry of the -final judgment. Indeed, the Pension Board approved his retirement several weeks before entry of the final judgment.

Ms. Dogoda’s’ entreaty ignores the language of section 61'.14(l)(a), which allows for a party to pursue- modification “[w]hen the parties enter into an agreement for payments for ... alimony ... in connection with a proceeding for dissolution ... and the circumstances or the financial ability of either party changes.” That is, under the statute, the touchstone for modification is whether, after the parties entered into the MSA, their respective circumstances or financial abilities have changed. Critically, the statute omits, and therefore, does not condition modification, upon the date of the trial court’s ratification of the MSA. See Villanueva v. State, 200 So.3d 47, 52 (Fla. 2016) (“[A] matter that is not covered by a statute is to be treated as intentionally not covered.”).

We reject Ms. Dogoda’s argument that Pimm’s second prong establishes a bright-line rule. “Section 61.14 ;.. extends jurisdiction to the trial courts to ’make orders as equity requires’ to modify an award of alimony.” Mouton v. Mouton, 590 So.2d 40, 41 (Fla. 2d DCA 1991) (quoting § 61.14(1), Florida- Statutes (1989)). Consistent with notions of,equity is the consideration of whether the parties contemplated the substantial change ,in circumstances and accounted for such a change when they agreed on the terms of the support ■ award. See Mendes v. Mendes, 947 So.2d 450, 452 (Fla. 4th DCA 2006) (“The trial court based its decision [to deny the ex-husband’s petition for alimony reduction] on the well-established principle that modification may not be based upon factors affecting income known to the .parties at the time a final judgment is entered.”). After all, “if . the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the. anticipated event, has come to pass.” Jaffee v. Jaffee, 394 So.2d 443, 445 (Fla. 3d DCA 1981). We find the reasoning- in Jaffee both intuitive and persuasive.

Consistent with Jaffee, the relevant analysis of the second prong, of Pimm begins with what the parties contemplated at the time they agreed to the terms of the MSA, not the arbitrary, date when the trial court entered the final judgment. Mr. Do-goda made his retirement decision after execution of the MSA. Consequently, despite his annual inquiries concerning possible retirement dates, he .and-Ms. Dogoda necessarily failed-to-contemplate his retirement when-they entered into the MSA. Cf. Allison v. Allison, 554 So.2d 1196, 1198 (Fla. 1st DCA 1989) (“A possibility that income will decrease is not knowledge that it will do so.”). Equity demands that Mr. Dogoda’s subsequent decision to retire not be held against him in his attempts to modify his alimony obligation.

We find further support for our position in the explicit- language of the MSA. “Settlement agreements are to be interpreted in accordance with laws governing contracts. Thus, absent evidence of the parties’ intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning.” Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003) (citation omitted). The MSA specifically provided that it was to take effect upon its execution by both parties. Consistent with that provision and after the parties signed the MSA, Mr. Dogoda began to remit his monthly alimony payments to Ms. Dogoda.

In cases involving an MSA, the effective date of the agreement establishes the date to which a trial court should look in determining whether a substantial change in circumstances was contemplated by the parties. This is especially so in cases like this one where there is an extended delay between execution of the MSA and entry of the final judgment. Were we to adopt Ms. Dogoda’s position, we would be effectively, and needlessly, foisting language upon the MSA that the contracting parties did not include, and which would change the terms of the parties’ agreement. We are loathe to do so.

Conclusion

For the reasons set forth above, we reverse the order denying Mr. Dogoda’s petition seeking modification of alimony. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      , Because our resolution of this issue moots consideration of Mr. Dogoda's other appellate issue, we do not address it.


author: WINSOR, J.

text:
    Denise Melissa CAMPBELL, L.P.N., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    CASE NO. 1D16-2291
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017

      Luis Antonio Bonilla of Bonilla Law Associates, West Palm Beach, for Appellant.
    Katelyn R. Levine, Assistant General Counsel, and Mari H. McCully, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
   WINSOR, J.

The Department of Health’s Board of Nursing revoked Denise Campbell’s nursing license, finding she engaged in unprofessional conduct. The Board acted after concluding that Campbell waived her right to a formal hearing. But because there are unresolved factual disputes about whether Campbell really did waive that right, we reverse and remand for further proceedings.

Nurse Campbell worked at a Fort Laud-erdale assisted living facility. One of the facility’s elderly patients was found unresponsive in the dining hall, and Nurse Campbell ordered staff to place the patient back in his bed to receive CPR. But it turned out the patient had a “Do Not Resuscitate” order on file, so he never received CPR or other treatment, and he died later that day. Campbell documented the event, but she inaccurately reported that the patient had been discovered unresponsive in his bed—not in the dining hall.

About a year later, the Department filed an administrative complaint, alleging that Nurse Campbell engaged in unprofessional conduct by (1) inaccurately recording the event and (2) falsifying or altering the patient’s records. Along with the complaint, the Department sent Nurse Campbell an election-of-rights form, which explained that she could dispute the alleged facts and request a formal administrative hearing. Consistent with Florida Administrative Code Rule 28-106.111(4), the form said that if Campbell made no election within twenty-one days, she would waive her right to a formal hearirtg.

There came to be a dispute about whether Nurse Campbell timely requested a formal hearing. Campbell’s attorney submitted an affidavit saying he personally hand delivered a formal-hearing request within the twenty-one days. The Department filed a competing affidavit saying the Board never received any such request.

The Board was therefore faced with conflicting evidence. But rather than make an effort to determine what the real facts were, the Board—at the Department’s request—deemed the formal hearing waived.

The Board ultimately held an informal hearing on the administrative complaint’s merits. The Board sided with the Department as to whether Nurse Campbell acted improperly, but it rejected the Department’s recommended penalty (probation and a fine), opting instead for license revocation. The Board based the revocation on two aggravating factors: (1) Campbell “documented false information which led to the death of a patient,” and (2) Campbell “delegated to an unlicensed person the duty to transfer a non-responsive body to bed.” Campbell now appeals the Board’s final order, challenging both the Board’s waiver conclusion and the penalty it imposed. I

The first question is what the Board should have done with the conflicting evidence on whether Nurse Campbell timely requested a formal hearing. We conclude that the Board should have afforded Nurse Campbell an evidentiary hearing on that issue. See Arteaga v. State, Dep’t of Bus. & Prof'l Regulation, 54 So.3d 599 (Fla. 3d DCA 2011) (holding DBPR should have held evidentiary hearing to resolve dispute about timeliness of election-of-rights filing when appellant had submitted affidavit saying he timely filed); see also Pro Tech Monitoring, Inc. v. State, Dep’t of Corr., 72 So.3d 277, 281 n.2 (Fla. 1st DCA 2011) (“Appellant’s [position] was supported by an affidavit which, at a minimum, raised disputed issues of fact regarding the timeliness of its bid protest petition .... The Department’s refusal to forward this issue to DOAH was so. contrary to the fundamental principles of administrative law that it constituted a gross abuse of discretion.”); Accardi v. Dep’t of Envtl. Prot., 824 So.2d 992, 995 (Fla. 4th DCA 2002) (“[T]he timeliness of the petition presents a disputed issue of fact that must be resolved below in the administrative process.”). We therefore reverse and remand. If it is determined after an evidentiary hearing that Nurse Campbell did not waive her right, the Department’s final order cannot stand, and the case must proceed to a formal administrative hearing. If it is determined Nurse Campbell did waive her right, the Department’s decision to penalize Campbell can stand.

The second question is whether the penalty imposed (revocation) was a permissible penalty. We must address this issue because the Board could again impose penalties after further proceedings if it is determined Campbell waived her right to a formal hearing, op if after a formal hearing she is found guilty. The sole argument Campbell’s initial brief raises on this point is that the penalty was not permitted without aggravated-factor findings based on competent, substantial evidence-findings that Campbell says were lacking here. The problem with this argument is that revocation was within the permissible penalty range with or without those aggravating factors. Findings of aggravating circumstances are necessary only when the Board imposes a penalty other than that provided in the Department’s disciplinary guidelines. § 456.079(3), Fla. Stat. (2015). And while the disciplinary guidelines do not authorize revocation for a first inaccurate-recording offense, they do authorize revocation for a first offense for falsifying patient records. Fla. Admin. Code R. 64B9-8.006(3)(f)(l)-(2). In other words, the disciplinary guidelines permitted revocation based on one of Nurse Campbell’s charges, even without aggravating factors. Therefore, we could not reverse the penalty based on the argument Nurse Campbell presents.

REVERSED and REMANDED.

B.L. THOMAS, C.J., and WINOKUR, J., CONCUR.