author: PARIENTE, J. CANADY, J,,

text:
    John DOE, Petitioners, v. STATE of Florida, Respondent.
    No. SC16-1852
    Supreme Court of Florida.
    [May 11, 2017]

      Howard L. “Rex” Dimmig, II, Public Defender, and Robert A. Young, General Counsel, Tenth Judicial Circuit, Bartow, Florida, for Petitioners
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Caroline Johnson Levine, Assistant Attorney General, Tampa, Florida, for Respondent
    Peter P. Sleasman and Kristen Cooley Lentz of Disability Rights Florida, Gaines-ville, Florida, for Amicus Curiae Disability Rights Florida
    Amy Singer Borman, General Counsel, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Amicus Curiae Honorable Jeffrey J. Colbath, Chief Judge of the Fifteenth Judicial Circuit
   PARIENTE, J.

At the heart of this case is the right of an individual to have a judicial officer physically present at hearings held to determine whether the individual may be involuntarily committed to a mental health facility or hospital pursuant to section 394.467, Florida Statutes (2016) (“the Baker Act”). Doe v. State, 210 So.3d 154 (Fla. 2d DCA 2016). Although the panel of the Second District Court of Appeal expressed serious concerns over the practice, which a judicial officer instituted via e-mail, providing for the remote appearance of judicial officers at Baker Act hearings, only the dissent explained that this practice violates the basic constitutional principle that “a judge’s physical presence is simply a constituent component of his or her ministerial duty to preside over a trial or evi-dentiary hearing.” Id. at 168 (Lucas, J., dissenting). We agree that the process instituted in the Twentieth Judicial Circuit by a single judicial officer denied Petitioners their right to have a judicial officer physically present at their Baker Act commitment hearings. Accordingly, we quash the Second District’s decision below.

FACTS AND PROCEDURAL BACKGROUND

The case currently before this Court was initiated before the Second District through the filing of fifteen petitions by individuals seeking some form of relief in the court from an ad hoc procedure instituted by an individual county court judge via an e-mail, which stated: “Per Judge Swett he will be doing Baker Acts beginning this Friday via Polycom. Thank You.” The procedure, instituted without notice, would allow the county court judge to preside over involuntary commitment hearings remotely. Very little factual or procedural background exists because, as the Second District explained:

At the time the petitions at issue were filed with this court, the petitioners were awaiting their Baker Act hearings. The petitioners and the State, as respondent in these cases, have provided this court with the recent history giving rise to these petitions. The judge and magistrate currently assigned to preside over Baker Act hearings in Lee County had recently announced, via e-mail, that they would no longer be commuting to the receiving facilities to hold the statutorily required hearing in person. Instead, the judicial officers would preside remotely from the courthouse via videoconference equipment while the patients, witnesses, and attorneys would continue to be physically present at the receiving facility. It is this new procedure that the petitioners challenge, asking this court to require the judicial officers to be physically present for the hearings “as required by law.”

Id. at 156. (majority) Ultimately, the Second District held:

In sum, while we question the wisdom of holding these hearings remotely, we conclude that the decision to preside over a Baker Act hearing remotely via videoconference equipment is within the discretion of the court. There is no ministerial, indisputable legal duty clearly established in the law which requires judicial officers presiding over involuntary inpatient placement hearings pursuant to section 394.467 to be physically present with the patients, witnesses, and attorneys.

Id. at 159.

Judge Wallace wrote a concurring opinion, in which he expressed his belief that the manner in which the trial judge exercised his authority to conduct involuntary placement hearings was unwarranted, and conducting such hearings remotely is inappropriate and ill-advised. Id. (Wallace, J., concurring). He also suggested that the appropriate rules committees of The Florida Bar promptly draft and submit rules delineating the types of proceedings that a judge may conduct remotely by videocon-ference and those that judges may not. Id. (Wallace, J., concurring). Initially, Judge Wallace took issue with the implementation of videoconferencing through the use of e-mail, rather than through an administrative order from the Chief Judge. Id. at 160-61 (Wallace, J., concurring). Judge Wallace argued that conducting Baker Act hearings remotely was ill-advised for three reasons: (1) potential difficulties, including equipment malfunctions and the inability of counsel to approach the bench for private conversations; (2) the circuit court disregarded the opinion of a subcommittee appointed by this Court in 1997 to conduct a comprehensive study on the administration of the Baker Act and its impact on patients, in which it recommended against conducting such hearings via videoconference; and (3) the circuit court disregarded an attempt by this Court to use a similar procedure for juvenile hearings that ultimately failed. Id. at 163-67 (Wallace, J., concurring).

Additionally, Judge Lucas wrote a dissenting opinion, arguing both that judicial officers have a ministerial duty to preside over Baker Act hearings in person and that the majority improperly looked to procedural rules as a potential basis for granting mandamus relief. Id. at 166-67 (Lucas, J., dissenting).. As to the first point, Judge Lucas reasoned:

In gleaning the extent of the judicial duty at issue here, we can, and should, look to the constitutional right of access to courts, precedent that expressly tethers a judge’s physical presence to a constitutional right, and the entirety of tradition and history. These bedrock principles, drawn together, fill the dearth of authority that my colleague, Judge Wallace, apprehends. But if there is any silence in the law on this issue, it must surely be ascribed to the fact that a judge or magistrate’s personal attendance at trial has been the assumed norm for as long as there have been courts and judges. In my view, a judge’s physical presence is simply a constituent component of his or her ministerial duty to preside over a trial or evidentiary hearing.

Id. at 168.

THE BAKER ACT

This case involves proceedings used to involuntarily commit mentally ill individuals under section 394.467, Florida Statutes. Section 394.467, also known as the Baker Act, governs the involuntary inpatient placement of persons with mental illness. Subsection (1) lays out specific criteria the State must prove to order the involuntary inpatient placement of an individual, including that the individual has either refused or is unable to consent to voluntary treatment, that the individual is either incapable of surviving alone or that there is a substantial likelihood that in the near future the individual will inflict serious bodily harm on himself or herself or others, and that all available less-restrictive treatment alternatives that would offer an opportunity for improvement of the individual’s condition have been judged inappropriate. § 394.467(1)(a)-(b), Fla. Stat. (2016).

The Baker Act also requires an evidentiary hearing to be conducted for involuntary inpatient placement. See § 394.467(2), (6). Recognizing the need for immediate action, the statute specifies that “[t]he court shall hold the hearing on involuntary inpatient placement within 5 court working days, unless a continuance is granted.” § 394.467(6)(a)l. Additionally, “[w]ithin 1 court working day after the filing of a petition for involuntary inpatient placement, the court shall appoint the public defender to represent the person who is the subject of the petition, unless the person is otherwise represented by counsel.” § 394.467(4). The statute requires, “Except for good cause documented in the court file, the hearing must be held in the county or the facility, as appropriate, where the patient is located, must be as convenient to the patient as is consistent with orderly procedure, and shall be conducted in physical settings not likely to be injurious to the patient’s condition.” § 394.467(6)(a)2. (emphasis added). Finally, the statute allows for a magistrate, rather than a judge, to preside at the hearing:

The court may appoint a magistrate to preside at the hearing. One of the professionals who executed the petition for involuntary inpatient placement certificate shall be a witness. The patient and the patient’s guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall ensure that one is provided, as otherwise provided for by law. The independent expert’s report is confidential and not discoverable, unless the expert is to be called as a witness for the patient at the hearing. The testimony in the hearing must be given under oath, and the proceedings must be recorded. The patient may refuse to testify at the hearing.

§ 394.467(6)(a)3.

It is clear that the Legislature recognized that individuals subject to the Baker Act are among, the most vulnerable in our society. The Baker Act has built-in safeguards, including the requirement that hearings be conducted at the institution where the patient is placed and in a manner not likely to be injurious to the patient’s condition.

The State is correct that section 394.467 does not specifically require that Baker Act hearings be presided over by a judicial officer’who is physically present. However, it is not unsurprising that the statute does not include such a requirement because judicial officers have always presided over evidentiary hearings in person. Additionally, the rights of the patients subject to involuntary commitment hearings are not limited to the protections provided for in the statute. Rather, in light of the serious deprivation of liberty associated with involuntary commitment hearings, important constitutional rights also govern these hearings.

CURRENT STATE OF THE LAW

“[A] deprivation of liberty by commitment to a mental institution cannot be accomplished without due process of law.” Jordan v. State, 597 So.2d 352, 353 (Fla. 1st DCA 1992) (citing O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Shuman v. State, 358 So.2d 1333 (Fla. 1978); In re Beverly, 342 So.2d 481 (Fla. 1977)). “The gravity of the matters considered at a Baker Act hearing requires the trial court to conduct the proceedings in a fair and neutral manner.” Id. Moreover, “[t]hose whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions.” Shuman, 358 So.2d at 1335. “Because involuntary commitment is a substantial deprivation of liberty at which fundamental due process protections must attach, the patient cannot be denied the right to be present, to be represented by counsel, and to be heard.” Ibur v. State, 765 So.2d 275, 276 (Fla. 1st DCA 2000).

Individuals subject..to Baker Act commitment hearings are entitled to the strict enforcement of their fundamental due process rights. These rights include: the right to an attorney, the right to testify, present evidence, and confront and cross examine witnesses, and the light to be present at the commitment hearing. See id. Courts must be especially careful to protect those due process rights when dealing with a vulnerable segment of the population and making a decision that ultimately results in a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972).

The right to be present at an involuntary commitment hearing is a fundamental due process right. Mouliom v. Ne. Fla. State Hosp., 128 So.3d 979, 981 (Fla. 1st DCA 2014). While a patient may waive the right to be personally present, a court must certify that the waiver is knowing, intelligent, and voluntary. Id. The requirement of physical presence, which is not disputed by any of the parties, would be meaningless if the judicial officer, or the finder of fact and ultimate decision-maker, is not also present in the hearing room.

Convenience of the judicial officer is insufficient to justify the violation of an individual’s constitutional rights. Indeed, the Amicus Brief of the Fifteenth Judicial Circuit offers no reason other than expediency for desiring a pilot program allowing for the remote appearance of judicial officers via videoconferencing technology. By contrast, the Amicus, Disability Rights of Florida, Inc., offers compelling argument as to why the remote appearance of judicial officers is harmful to patients and ultimately does not satisfy their right to be physically present and aware of the proceedings at the Baker Act hearing:

Utilization of videoconferencing may depersonalize the proceedings and may heighten a patient’s perception that the proceeding was unfair. In addition, the fact that Baker Act hearings are the only adjudicatory hearings that are required to be done by video conference sends a message to the participants that these proceeding are not worthy of the court’s time. A patient’s perception of the fairness of these hearing is not just an esoteric concern. It may have an impact on their treatment and conduct. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972) (noting that “society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.”).

Br. of Amicus Curiae, Disability Rights Florida, Inc. (Dec. 12, 2016) at 14, Indeed, a report from the Florida Supreme Court Commission on Fairness also recommended that such involuntary inpatient placement hearings be conducted in as formal a manner as possible, in an effort to ensure that the patient is aware of the proceeding and its possible consequences, stating:

[T]he chief judge of each circuit court [should] require involuntary placement hearings held at mental health receiving facilities to be conducted in a room that is set up in the manner of a courtroom. If possible, that room should not be used for any other patient purposes. The presiding officer should wear a robe. United States and Florida flags should be present. Formal courtroom decorum should be observed. Patients should be dressed in street clothing. Food, drink, and side conversations should be prohibited. The presiding officer, state attorney, public defender, and other participants should introduce themselves prior to each case. Moreover, rules of evidence and procedure should be observed.

Florida Supreme Court Comm’n on Fairness, Judicial Administration of the Baker Act and Its Effect on Florida’s Elders; Report & Recommendations of the Subcommittee on Case Administration, 31-32 (1999).

Additionally, longstanding traditions compel the personal attendance of judicial officers at trials and evidentiary hearings over which they preside. There is no explicit rule or constitutional right requiring a judicial officer’s physical presence at Baker Act proceedings—likely because judicial officers have always, until the recent advent of technology, been required to be physically present in the courtroom to preside over cases which are assigned to them. Moreover, as this Court explained in Brown v. State, 538 So.2d 833 (Fla. 1989), “the presence of a judge during trial is a fundamental right.” Id. at 835. Though this Court has not explicitly stated that judicial presence is required at evi-dentiary hearings, unless the parties agree otherwise, longstanding tradition and notions of justice compel such a requirement, A judicial officer should be physically present to preside over any matter that could lead to the “massive curtailment of [an individual’s] liberty.” Humphrey, 405 U.S. at 509, 92 S.Ct. 1048.

As Petitioners note, the remote presence of judicial officers could likely be injurious to the patient’s condition. As Disability Rights of Florida, Inc., explains:

This consideration of the patient’s needs in the setting of the hearing is unique to commitment hearings. The “physical setting” of the hearing undoubtedly includes such things as whether the judge is physically present at the hearing or participating by a television screen. The use of videoconferencing carries a great potential for harming the patient’s condition. There is substantial evidence ■ that use of videoconferencing will cause patients confusion about the proceeding, discourage participation, cause exacerbation of symptoms, and may have significant ramifications regarding a patient’s willingness to accept treatment once committed. All of these outcomes could negatively affect this vulnerable population.

Br. of Amicus Curiae, Disability Rights Florida, Inc. (Dec. 12, 2016) at 11. Although the State and the Amicus, the Honorable Jeffery J. Colbath, cite to the improvement in video technology and practices in other jurisdictions that use video hearings, our concern continues to be the effect of remote videoconferencing—essentially judicial appearance by television—on the patient.

Moreover, it is no solution to the problem to allow a patient to be brought to the courthouse if he or she objects,' as the Fifteenth Circuit has proposed in its pilot program. The Legislature has expressed a clear preference in section 394.467 that hearings be conducted at the patient’s facility in a manner that would not likely be injurious to the patient’s condition. Moreover, as was mentioned at oral argument, oftentimes when mentally ill patients are transported to the circuit court, they are transported and treated* via the same process and procedures used for criminal inmates. Judicial expediency will never justify such treatment of some of our State’s most vulnerable citizens.

Turning to the applicable Rule of Judicial Administration, specifically,. Florida Rule of Judicial Administration 2.530 states:

(a) Definition. Communication equipment means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present.
(b) Use by All Parties. A county or circuit court judge may, upon the court’s own motion or upon the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used. The decision to use communication equipment over the objection of parties will be in the sound discretion of the trial court, except as noted below.
(c) Use Only by Requesting Party. A county or circuit court judge may, upon the written request of a party upon reasonable notice to all other parties, permit a requesting party to participate through communication equipment in a scheduled motion hearing; however, any such request (except in criminal, juvenile, and appellate proceedings) must be granted, absent a showing of good cause to deny the same, where the hearing is set for not longer than 15 minutes.
(d) Testimony.
(1) Generally. A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure.
(2) Procedure. Any party desiring to present testimony through communication equipment shall, prior to the hearing or trial at which the testimony is to be presented, contact all parties to determine whether each party consents to this form of testimony. The party seeking to present the testimony shall move for permission to present testimony through communication equipment, which motion shall set forth good cause as to why the testimony should be allowed in this form.
(3) Oath. Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.
(4) Confrontation Rights. In juvenile and criminal proceedings the defendant must make an informed waiver of any confrontation rights that may be abridged by the use of communication equipment.
(5) Video Testimony. If the testimony to be presented utilizes video conferencing or comparable two-way visual capabilities, the court in its discretion may modify the procedures set forth in this rule to accommodate the technology utilized.

Rule 2.530 was adopted by this Court in 1985. See The Fla. Bar Re: Fla. R. Jud. Admin., 462 So.2d 444 (Fla. 1985). When adopting the rule, this Court stated:

The rule is intended to formally adopt standard procedures for using communication equipment which we are advised is currently being informally used in many courts within the state. Because we saw merit and urgency in the proposal but did not wish to adopt it as an emergency rule without the advice of The Florida Bar and interested individuals, we referred the proposal to the Committee for expeditious consideration. We have since received input from that Committee, from The Florida Bar Board of Governors, from circuit and county judges, and from other interested individuals. There is general agreement that such a rule should be adopted but some disagreement as to the scope and content of the rule. We have carefully considered the various comments and recommendations submitted to us and concluded that we should adopt the appended rule.

Id. at 445.

The State contends that neither this rule nor any other rule of law that currently exists, governs the remote appearance of judicial officers at all hearings throughout the state, not just Baker Act hearings. In fact, by the State’s reasoning, it is within the judicial officer’s discretion whether to preside over criminal trials remotely. The State’s arguments are without merit.

Rule 2.530(d)(1) speaks directly to the issue at hand because it explicitly “allow[s] testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure.” Further, Rule 2.530(b) only allows courts to “direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference.” The State contends that all that is required by this rule is that the patient and the rest of the participants to the hearing, including the witnesses, are physically present in the same room. However, the opposite is true. When a witness is not in the same room as the person who will ultimately be deciding the outcome of the case, and to whom the testimony is directed, in this case the judge or magistrate, regardless of where the rest of the participants in the hearing or trial are, the witness is testifying through communication equipment. Such testimony is specifically disallowed under the rule, unless all of the parties consent.

It is also clear that, in adopting Rule 2.530, the Court intended to permit the use of communication equipment, over the objection of the parties, only in the three enumerated instances. Specifically, this Court stated: “There is general agreement that such a rule should be adopted but some disagreement as to the scope and content of the rule. We have carefully considered the various comments and recommendations submitted to us and concluded that we should adopt the appended rule.” The Fla. Bar Re: Fla. R. Jud. Admin., 462 So.2d at 445. Thus, this Court made clear that it was presented with various options as to how broadly the rule should be written, but ultimately decided to limit the use of communication equipment to only three instances. Additionally, this Court has since not amended the rule to expand these instances. See In re Amend, to the Fla. R. Jud. Admin., 73 So.3d 210 (Fla. 2011); Amend. To Family Law R. of F. 12.650 (override of family violence indicator) & Fla. R. Jud. Admin. 2.071 (use of communication equipment), 766 So.2d 999 (Fla. 2009); In re Amend. to the Fla. R. Jud. Admin. (Two-Year Cycle), 915 So.2d 157 (Fla. 2005); Amend, to the Fla. R. Jud. Admin., 780 So.2d 819 (Fla. 2000).

THIS COURT’S PREVIOUS EXAMINATION OF THE USE OF REMOTE CONFERENCING IN JUDICIAL HEARINGS

This Court previously considered the efficacy of using videoconferencing technology with another group of vulnerable individuals—juveniles. As noted by Judge Wallace’s concurring opinion, in 1999, this Court adopted Rule of Juvenile Procedure 8.100(a), allowing on an interim basis the remote appearance of judges for juvenile detention hearings. See Amend. to Fla. R. Juv. P. 8.100(a), 753 So.2d 541 (Fla. 1999). The procedure was not created in each circuit on an ad hoc basis. Rather, the rule was first proposed in 1996, adopted on an interim basis in 1999, and finally repealed in 2001, all by action from this Court, with input from the legal community directly impacted by the rule. See Amend. to Fla. R. Juv. P, 8.100(a), 796 So.2d 470, 471 (Fla. 2001). When considering the rule, this Court authorized chief judges in various circuits to conduct one-year pilot programs and required that each Chief Judge send a report to the Court detailing the positive and negative impacts of the proposal at the end of the year. Id. at 472. After reviewing the results of the pilot program, as well as looking to the comments of several independent sources about the positive and negative effects of the program, this Court ultimately decided to repeal the rule, concluding:

In sum, “Florida’s oft-repeated pledge that ‘our children come first’ cannot ring hollow in—of all places—our halls of justice.” [Amend, to Fla. R. Juv. p. 8.100(a), 753 So.2d] at 545. Not simply allowing, but mandating that children attend detention hearings conducted through an audio-visual device steers us towards a sterile environment of T.V. chamber justice, and away from a system where children are aptly treated as society’s most precious resource. It' is time that we understand that these youths are individuals and require sufficient resources if we are to expect a brighter tomorrow. We recognize our children may be familiar with computers, television, and related technology; however, such familiarity does not decrease the need for personal interaction and may very well be one of many complex reasons we should require more personal attention to our youth. Personalized attention and plans are necessary to properly address the multiple .and complex problems facing today’s children. The juveniles that become involved in this process have, at some point, allegedly failed to make the right decision and we must not. compound the problem by subjecting them to a system that has lost its humanity and become an emotional wasteland. In our view, solutions to many of the troubling issues in our criminal justice system may be found in proper, early, individualized intervention in a young life and not in the mechanical and robotic processing of numbers. Respect for the individual begets respect while we fear coldness and sterility may breed contempt.

Id. at 475-76 (footnote omitted). It is evident that the special status of juveniles within our society was the driving force behind this Court’s ultimate decision not to adopt Rule 8.100(a) on a permanent basis.

' Moreover, this Court has previously examined the efficacy of the remote appearance of judicial officers in Baker Act proceedings. As Judge Wallace explained in his concurring opinion:

A subcommittee appointed by the Florida Supreme Court in 1997 conducted a comprehensive study of the administration of the Baker Act and its impact on patients, particularly Florida’s elderly population. The subcommittee released its report on December 28, 1999 (the Report).
In the Report, the subcommittee addressed the conduct of involuntary placement hearings by video. The subcommittee noted that when involuntary placement hearings are held in receiving facilities—as is the case here—patients frequently do not understand that a formal court healing is taking place. Report at 19. The. subcommittee deyoted a separate section of the Report to a consideration of the effects of conducting involuntary placement hearings on a population of vulnerable patients by video. Id. at 31-32. Doe, 210 So.3d at 163-64 (Wallace, J., concurring) (citation omitted). Indeed, as Judge Wallace recognized, the Subcommittee noted the following evidence regarding the negative effects of conducting Baker Act hearings remotely:
Martha Lenderman pointed out that some individuals’ mental health problems include symptoms of paranoia. These persons may react negatively to video hearings. Some individuals with mental illnesses may be too confused to understand a procedure involving a video hearing. Further, the presiding officer may be limited in observing the situation when confined to viewing only what a camera is focused on. Ms. Lend-erman warned that video be used with caution, if at all, for involuntary placement hearings.
Vince Smith, of the Mental Health Program Office in the Department of Children and Families, was concerned that use of video may increase the number of individuals who decline to participate in their involuntary placement hearings. Winifred Sharp, a Judge on the Fifth District Court of Appeal, observed that it would be very difficult to make a video proceeding look or feel like a formal court hearing, and therefore the chance that a patient might not understand a court proceeding is occurring would continue to present a challenge.

Id. at 164. Much like the present case, the only evidence offered to the Subcommittee in favor of the remote appearance of judicial officers was “that video hearings may be a convenient and less costly alternative for involuntary placement hearings.” Florida Supreme Court Comm’n on Fairness, Judicial Administration of the Baker Act and Its Effect on Florida’s Elders; Report & Recommendations of the Subcommittee on Case Administration, 31 (1999). Ultimately the Subcommittee “strongly recom-mendfed] against the use of video for involuntary placement hearings.” Id. at 32.

THIS CASE

In the present case arising out of the Twentieth Judicial Circuit, a single county court judge, in an e-mail—which stated in its entirety “Per Judge Swett he will be doing Baker Acts beginning this Friday via Polycom. Thank You.”—declared a new policy that Baker Act hearings would be conducted remotely via videoconferencing equipment. There is no evidence in the record, other than a suggestion for judicial efficiency and cost savings from the Amicus of the Fifteenth Judicial Circuit, as to why such a proceeding is necessary in Lee County. Further, Petitioners in this action have all objected to the use of videoconferencing equipment for Baker Act hearings in their respective cases. Based upon the above analysis, and because Petitioners have objected to the use of such equipment and have not waived their physical presence at their Baker Act proceedings, the judicial officers presiding over their hearings are required to appear in person, in “physical settings not likely to be injurious to the patient’s condition.” § 394.467(6)(a)2., Fla. Stat.

Moreover, it is troubling that such an important policy decision, fraught with real life consequences for some of our society’s most vulnerable citizens, was handed down in a one sentence e-mail without any real explanation or judicial avenue for challenge. Rule 2.530 was adopted in an attempt to stop such ad hoc use of communications equipment throughout the circuit courts. See The Fla. Bar Re: Fla. R. Jud. Admin., 462 So.2d at 445 (“The rule is intended to formally adopt standard procedures for using communication equipment which we are advised is currently being informally used in many courts within the state.”). Should courts wish to implement and utilize new technology, then, at the very least, policies and procedures for such use should be adopted through a formal administrative order, subject to certiorari review in the appellate courts. See Fla. R. App. P. 9.100(c) (stating that where no written orders have been rendered, the appellate courts lack jurisdiction to consider petitions for writs of certiorari).

CONCLUSION

In sum, Petitioners, as well as all individuals subject to Baker Act hearings, have a right to have a judicial officer physically present at their Baker Act commitment hearing, subject only to their consent to the contrary. Likewise, a judicial officer’s physical presence over such hearings is a constituent component of his or her ministerial duty to preside over a trial or evidentiary hearing. Individuals subject to Baker Act commitment proceedings are individuals who likely have a serious mental illness, and they are among the State’s most vulnerable citizens. The language in the Baker Act reflects the Legislature’s acknowledgment that these individuals are entitled to heightened consideration regarding the manner in which the hearing will be conducted. See § 394.467(6)(a), Fla. Stat. Such heightened consideration rightfully includes the physical presence of judicial officers in the healing room. Accordingly, the decision of the Second District below in Doe is quashed and the proceedings are remanded to the Second District for instructions not inconsistent with this opinion.

It is so ordered.

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

CANADY, J., concurs in result with an opinion, in which POLSTON, J., concurs.

CANADY, J,,

concurring in result.

I agree that the decision of the Second District Court of Appeal should be quashed because the practice at issue here is in violation of the trial court’s indisputable legal duty under Florida Rule of Judicial Administration 2.530(d)(1). That rule precludes the taking of testimony through communication equipment without the consent of all the parties in the absence of some other rule authorization. Here, there was no consent and no other rule authorization for the trial court’s conduct.

I therefore would rephrase the certified question as follows:

Does Florida Rule of Judicial Administration 2.530(d)(1) require that a judge be physically present to preside over involuntary inpatient placement hearings under section 394.467, Florida Statutes (2016), unless the parties agree that the judge may participate by way of communication equipment?

And I would answer the rephrased question in the affirmative.

In my view, the issue presented by this case is readily resolved by the text of Rule 2.530(d)(1).

POLSTON, J., concurs.

      . In its decision, the Second District Court of Appeal certified the following question of great public importance:
      DOES A JUDICIAL OFFICER HAVE AN EXISTING INDISPUTABLE LEGAL DUTY TO PRESIDE OVER SECTION 394.467 HEARINGS IN PERSON?
      Doe, 210 So.3d at 159. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . Disability Rights of Florida, Inc. filed an amicus brief on behalf of Petitioners, contending that the use of videoconferencing equipment in Baker Act hearings is not only against longstanding judicial policy but also would be injurious to the condition of many patients. Disability Rights of Florida, Inc. is the designated voice for those with mental illness in Florida and has a longstanding interest in ensuring that the involuntary commitment procedures are fair and protect the rights of individuals with mental illness.
      Additionally, the Honorable Jeffery J. Col-bath, Chief Judge of the Fifteenth Judicial Circuit, filed an amicus brief on behalf of the State, arguing that the use of videoconferencing equipment was within the discretion of the trial judge and explaining the pilot program for the use of videoconferencing equipment during Baker Act hearings currently be-mg implemented in the Fifteenth Judicial Circuit. Judge Colbath filed his amicus brief, in part, to advise this Court of the significant impact that an affirmative answer to the certified question would have on the administration of not only the Fifteenth Judicial Circuit, but on all circuit courts throughout the state, and to advocate for the adoption of rules of procedure to govern the remote appearance of judicial officers in future proceedings,

      . Initially, this Court denied Petitioners’ Motion to Stay the proceedings below. However, after hearing oral argument, this Court vacated its earlier order and stayed the proceedings.

      . Circuit courts have jurisdiction over Baker Act hearings, however they are permitted by statute to either appoint a magistrate to preside over the hearings, see § 394.467(6)(a)3., Fla. Stat. (2016), or "[t]he chief judge of a circuit may authorize a county court judge to order emergency hospitalizations pursuant to part I of chapter 394 in the absence from the county of the circuit judge.” § 26.012(4), Fla. Stat. (2016).

      . This Court has not currently promulgated procedural rules specifically governing Baker Act proceedings.

      . The magistrate's findings are subject to judicial review. See In re Drummond, 69 So.3d 1054, 1056-57 (Fla. 2d DCA 2011). Again, there are no separate rules regarding the procedure for filing exceptions to a magistrate's Baker Act findings unlike in other contexts under the Florida Rules of Civil Procedure, the Florida Family Law Rules of Procedure, and the Florida Rules of Juvenile Procedure. See Fla. R. Civ. P. 1.490(i) (requiring that parties file exceptions to the magistrate’s report within ten days after it is served); Fla. Farm L. R. P. 12.490(f) (same); Fla. R. Juv. P. 8.257(f) (same).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael A. HERNANDEZ, Jr., Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-440
    Supreme Court of Florida.
    [May 11, 2017]
    Curtis M. French, Tallahassee, Florida; and Billy H. Ñolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Petitioner

      Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Senior Assistant Attorney General, Tallahassee, Florida, for Respondent
   PER CURIAM.

Petitioner, Michael A. Hernandez, Jr., has filed a petition for writ of habeas corpus, challenging the constitutionality of his death sentence, which was based upon a nonunanimous jury recommendation. See Hernandez v. State, 4 So.3d 642, 654 (Fla. 2009). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. Because Hernandez’s sentence became final after Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), he is entitled to relief. See Mosley v. State, 209 So.3d 1248 (Fla. 2016). Accordingly, we grant the petition, vacate the sentence of death, and remand this case for a new penalty phase proceeding.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY, POLSTON, and LAWSON, JJ., dissent.


author: Levine, J.

text:
    Rick MANCINELLI and Cloud Computing Concepts, LLC, Appellants, v. Jeffrey DAVIS, individually, David Tobin, individually, and Broadbandone, LLC, a Florida Limited Liability Corporation f/k/a BroadbandONE, Inc., a Florida Limited Liability Corporation d/b/a Host.Net, a Florida Limited Liability Corporation, Appellees.
    No. 4D15-4249
    District Court of Appeal of Florida, Fourth District.
    [April 5, 2017]

      Elizabeth O. Hueber and Scott A. Mager of Mager Paruas, LLC, Hollywood, for appellant Cloud Computing Concepts, LLC.
    Ricardo A. Reyes, Matthew D. Cohen, and Alfonso M. Icochea of Tobin & Reyes, P.A., Boca Raton, for appellee for Jeffrey Davis.
   Levine, J.

In this case, we consider the parameters of the “intra-corporate conspiracy doctrine” and how it specifically relates to an allegation of civil conspiracy and whether the trial court correctly dismissed the count of conspiracy to commit breach of contract. We find that the trial court correctly applied the doctrine of intra-corpo-rate conspiracy by dismissing the conspiracy count. We do find, however, that the trial court, after dismissing the count, should have given the party the opportunity to amend its complaint. Thus, we reverse and remand for the trial court to give appellant an opportunity to re-plead the complaint, and if appellant is unable to plead a sufficient claim, consistent with this opinion, then the complaint can be dismissed with prejudice.

Broadbandone, LLC d/b/a Host.net (“Host”) sued Cloud Computing Concepts, LLC (“C3”) as well as C3’s CEO for several breach of contract and tort claims. C3 counterclaimed against Host; Jeffrey Davis, Host’s CEO; and David Tobin, Host’s outside counsel. The sole claim against Davis alleged he conspired with Host and Tobin to commit breach of contract. As this case follows from the trial court’s dismissal of C3’s sole claim against Davis, we take the factual allegations within C3’s complaint as true.

C3, a cloud computing company, had entered into a contract with Host, a provider of power, cooling, network connectivity services, and other infrastructure services. Subsequently, Davis, along with Host and Tobin, allegedly attempted to destroy C3 and acquire C3’s clients. Davis allegedly caused Host to fail to send an invoice to C3, making C3 delinquent in its payments. Davis then contacted C3’s clients, telling them Host planned to disconnect C3. Eventually C3 learned of its missed payment and offered to pay the amount due, but Davis informed C3 that Host would be accelerating the agreement and demanded $50,722.70, the accelerated amount. Davis’s purported aim was to extort C3 into paying the accelerated sum, destroy C3 and its data entirely, or force C3 to enter into a new, disadvantageous long-term contract.

C3 alleged Davis “engaged in a maniacally despicable course of conduct designed to harm C3 and its clients—and to get more money for himself and Host.net.” Davis also “secured more compensation” from Host through his actions.

Davis moved to dismiss C3’s civil conspiracy claim, arguing that the “intra-cor-porate conspiracy doctrine” prohibits, as a general proposition, a corporation from conspiring with its own officers and agents. The trial court dismissed the claim against Davis with prejudice. C3 now appeals.

We review motions to dismiss de novo. See Habitat II Condo., Inc. v. Kerr, 948 So.2d 809, 811 (Fla. 4th DCA 2007).

We begin our discussion with an explanation of the intra-corporate conspiracy doctrine. This doctrine, originally a product of antitrust law, provides that “neither an agent nor an employee can conspire with his or her corporate principal or employer.” Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963, 966 (Fla. 4th DCA 2002) (quoting Lipsig v. Ramlawi, 760 So.2d 170, 180 (Fla. 3d DCA 2000)); McAndrew v. Lockheed Marlin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc). “This doctrine stems from basic agency principles that ‘attribute the acts of agents of a corporation to the corporation, so that all of their acts are considered to be those of a single legal actor.’ ” Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761, 767 (11th Cir. 2000) (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 603 (5th Cir. 1981)). Because a civil conspiracy requires “an agreement between two or more parties,” Lipsig, 760 So.2d at 180, “it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself,” Dickerson, 200 F.3d at 767. See also Cedar Hills Props. Corp. v. E. Fed. Corp., 575 So.2d 673, 676 (Fla. 1st DCA 1991) (“Since a corporation is a legal entity which can only act through its agents, officers and employees, a corporation cannot conspire with its own agents unless the agent has a personal stake in the activities that are separate and distinct from the corporation’s interest.”). Thus, the intra-corporate conspiracy doctrine, as a general proposition, precludes the claim of conspiracy against individuals and their corporation for wholly internal agreements to commit wrongful or actionable conduct.

Florida courts recognize the “personal stake” exception to the intra-corporate conspiracy doctrine. Richard Bertram, 820 So.2d at 966. Under this exception, where an agent has a “personal stake in the activities separate from the principal’s interest,” the agent can be liable for civil conspiracy. Id. To prove such a personal stake, an agent must have “a personal stake in the activities that are separate and distinct from the corporation’s interest.” Lipsig, 760 So.2d at 181 (citation omitted). In other words, the agent must have “acted ‘in their personal interests, wholly and separately from the corporation.’ ” Microsoft Corp. v. Big Boy Distr. LLC, 589 F.Supp.2d 1308, 1323 (S.D. Fla. 2008) (quoting Bhatia v. Yale Univ., No. 3:06cv1769, 2007 WL 2904205 (D. Conn. Sept. 30, 2007)). Thus, a “personal stake” must be more than, just personal animosity on the part of the agent. See On-Site Dev. Corp. v. Riley, 564 So.2d 201, 204 (Fla. 5th DCA 1990). Moreover, the benefit to the agent must be more than “incidental” to the benefit to the principal. See HRCC, Ltd. v. Hard Rock Café Int’l (USA), Inc., No. 6:14-cv-2004-Orl-40KRS, 2016 WL 6603792, at *5 (M.D. Fla. Sept. 13, 2016).

In the present case, because C3 has alleged Davis “conspired” with Tobin, an agent of Host, and Host itself, we find the intra-corporate conspiracy doctrine applies. We further conclude that the allegations in C3’s complaint do not show that Davis had a “personal stake” in the conspiracy different from that of the corporation. C3 alleged Davis’s aim in participating in the conspiracy was to harm C3. However, Davis acted in his capacity as Host’s CEO and sought to benefit Host through his allegedly tortious acts. Any benefits Davis received as a result of his allegedly tortious actions, including increased compensation, were merely incidental to the benefits Host received. Therefore, the trial court did not err in dismissing C3’s complaint.

C3 contends the intra-corporate conspiracy doctrine is an affirmative defense and therefore it should not be required to allege facts that demonstrate Davis had a personal stake in the alleged conspiracy. Appellant claims that this improperly imposes a heightened pleading standard requiring it, in its complaint, to avoid what is an affirmative defense.

Requiring C3 to allege Davis had a personal stake does not impose a heightened pleading standard because the intra-corporate conspiracy doctrine is not an affirmative defense. “An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, ór other matter negating or limiting liability.” State Farm Mut. Auto. Ins. Co. v. Curran, 135 So.3d 1071, 1079 (Fla. 2014) (citation omitted). The intra-corporate conspiracy doctrine does not “admit[]” a conspiracy exists. See id. Rather, it provides that a corporate agent’s acts are attributed to the corporation such that the multiplicity of actors element of conspiracy is negated, and without a multiplicity of actors, a conspiracy cannot be proven. See Cedar Hills, 575 So.2d at 676. Requiring a complaint to contain “ultimate facts” showing a “personal stake” does no more than require that the complainant allege facts showing the base requirement that “two or more persons” have entered into an agreement. Id.; Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004).

Although we conclude C3’s complaint failed to state a cause of action for civil conspiracy, we nevertheless find the trial court abused its discretion in dismissing C3’s claim against Davis with prejudice. “It is well-settled that where a party may be able to allege additional facts to support its cause of action or even to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion.” Harper Cos. v. Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., 656 So.2d 627, 629 (Fla. 4th DCA 1995). Because C3 was not given any opportunity to amend its complaint, and it is unclear whether C3 could potentially state a legally sufficient claim, we reverse and remand for C3 to be given the opportunity to amend. See Bryant v. State, 901 So.2d 810, 818 (Fla. 2005) (“In the civil context, dismissing a complaint without granting at least one opportunity to amend is considered an abuse of discretion unless the complaint is not amendable.”); Gamma Dev. Corp. v. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993) (“Leave to amend should be liberally given and a dismissal with prejudice is not proper unless the privilege to amend has been abused, or it is clear that the pleading cannot be amended to state a cause of action.”).

In summary, we find C3 failed to state a cause of action for civil conspiracy because it did not allege facts showing Davis had a “personal stake” in the conspiracy. We nevertheless reverse for C3 to be given an opportunity to amend its complaint, If on remand, and consistent with this opinion, C3 fails to state a legally sufficient claim, C3’s claim should then be dismissed with prejudice. We find the remaining issues on appeal to be without merit and affirm without comment.

Affirmed in part, reversed in part, and remanded.

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

      . We also note that the federal courts have identified additional exceptions to the intra-corporate conspiracy doctrine. For example, in McAndrew the Eleventh Circuit held that the criminal conspiracy exception to the in-tra-corporate conspiracy doctrine applies "regardless of whether the criminal conspiracy arises under the federal criminal or civil code.” McAndrew, 206 F.3d at 1040. In Dickerson, the Eleventh Circuit noted that several federal circuit courts had made an exception to the intra-corporate conspiracy doctrine in cases involving "a series of discriminatory acts” in 42 U.S.C. § 1985 actions. Dickerson, 200 F.3d at 770. Lastly, the United States Supreme Court declined to apply this doctrine to a civil Racketeer Influenced and Corrupt Organization Act (RICO) claim. Cedric Kushner Promotions, LTD. v. King, 533 U.S. 158, 165-66, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001).


author: Gerber, J.

text:
    Judy HELD, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR C-BASS 2007-CB7 TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-CB7, Unknown Tenant #1, n/k/a Jean Pierre Louis, and Unknown Tenant #2, n/k/a Rose Seide, Appellees.
    No. 4D15-4499
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]
    Cristina Duarte of Cristina Duarte, P.A., Miami, for appellant.
    Diana B. Matson of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellee U.S. Bank National Association.
   Gerber, J.

The borrower appeals from the circuit court’s final judgment of foreclosure, which was entered after the court granted the bank’s motion to vacate an earlier final order of dismissal for lack of prosecution. The borrower argues, among other things, that the court erred in granting the bank’s motion because no record activity occurred during the sixty days after the court issued the notice of lack of prosecution, and the bank did not show good cause at least five days before the good eause hearing.

We agree with the borrower’s argument and reverse for reinstatement of the final order of dismissal. This opinion will present the procedural history before the circuit court, and then will provide our analysis.

Procedural History

In 2009, the bank filed the foreclosure action. In 2010, the borrower filed an answer and affirmative defenses. In 2011, the borrower filed a motion for leave to amend the answer and affirmative defenses. For the next two years, no further record activity occurred.

On July 30, 2013, a judge issued a notice of lack of prosecution. The notice advised the bank that no activity had occurred for a ten month period, and if no record activity occurred within sixty days following the notice’s service, the case would be dismissed pursuant to Florida Rule of Civil Procedure 1.420(e), unless the bank showed good cause in writing at least five days before a hearing as to why the court should not dismiss the case for lack of prosecution. No record activity occurred within sixty days following the notice’s service.

On August 30, 2013, the judge issued an order for the bank to show good cause in writing, at least five days before a hearing set for October 15, 2013, as to why the court should not dismiss the case for lack of prosecution.

On October 11, 2013 (four days before the hearing), the bank filed a status report stating the bank had terminated its original counsel’s services on or about August 16, 2013, and had retained new counsel. The bank requested, “[i]n the light of the foregoing ... the court find good cause to prevent the instant action from being dismissed.”

It is unclear from the record, but somehow two contradictory orders, signed by two different judges, were issued on October 15, 2013. One order, signed by the judge who set the show cause hearing, dismissed the case for lack of prosecution. Another order, signed by a different judge, declined to dismiss the case for lack of prosecution, finding “good cause shown.” No hearing transcript exists in the record to explain either of these two contradictory orders.

In August 2014 (ten months after the contradictory orders were issued), the bank filed a verified motion to vacate the order dismissing the case for lack of prosecution. The bank alleged it appeared at the October 15, 2013 hearing, the court found good cause for the case to remain open, and the court inadvertently issued an order dismissing the case for lack of prosecution. The bank argued that Florida Rule of Civil Procedure 1.540(b) authorized the court to relieve the bank from the inadvertent issuance of the order dismissing the case for lack of prosecution.

A third judge held a hearing on the bank’s motion. The following excerpt encompasses the hearing’s substance:

[BANK’S COUNSEL]: Judge, this is the [bank’s] verified motion to vacate the order of dismissal. Looks like there was a lack of prosecution hearing. [The bank] appeared at the hearing, and the Court found good cause to keep the case pending.
At the same day of the hearing, the Court also inadvertently issued a dismissal for lack of prosecution.
So, our motion is to have that dismissal set aside, due to the Court making that mistake.
We’re moving under Rule 1.540(b), on this matter, it’s a verified motion .... The docket in this matter reflects on the date of the hearing, good cause was shown, and, again, we’re just saying it was an inadvertent mistake, and also the attorney who drafted the motion, as an officer of the Court, states that good cause was shown at the hearing, and the Court stated the case would remain pending. It was just a mistake.
[BORROWER’S COUNSEL]: Your Honor, our position is that the dismissal should not be vacated.
The notice of lack of prosecution was executed July 30 of 2013. There was no record activity within 60 days after that, which is what’s required pursuant to Florida Rule of Civil Procedure 1.420. And there was also no motion ... to show good cause issued....
[BANK’S COUNSEL]: There was nothing 60 days after the lack of prosecution. That’s why the Court issued an order to show cause, and at the order to show hearing, they did find good cause, and the [borrower] is arguing for, basically, for rehearing of the order to show cause
What’s before the Court is our [1.540] motion in the case, [as to the order] which entered the dismissal, which was entered in error by the Court.
THE COURT: Okay. Got it. Granted.

The third judge, pursuant to its oral ruling, issued a written order granting the bank’s motion to vacate the dismissal.

The borrower then filed a motion to vacate the order vacating the dismissal. The borrower argued, among other things, that pursuant to Florida Rule of Civil Procedure 1.420(e), the court was required to dismiss the case because the bank failed to comply with the requirement to show good cause in writing at least five days before the good cause hearing.

The third judge entered an order denying the borrower’s motion to vacate. A fourth judge then held a non-jury trial on the foreclosure action, and entered a final judgment of foreclosure in the bank’s favor.

This appeal followed. The borrower argues the third judge erred in granting the bank’s motion to vacate dismissal because no record activity occurred during the sixty days after the first judge issued the notice of lack of prosecution, and the bank did not show good cause at least five days before the good cause hearing.

Analysis

Our review is de novo. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 790 (Fla. 2011) (“[W]e apply a de novo standard of review when the construction of a procedural rule is at issue.”)

We agree with the borrower’s argument. Florida Rule of Civil Procedure 1.420(e) (2013) states, in pertinent part:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court ... the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person ... unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

Fla. R. Civ. P. 1.420(e) (2013) (emphasis added).

Since 2005, our supreme court has held that rule 1.420 should be interpreted according to its plain meaning. See Wilson v. Salamon, 923 So.2d 363, 369 (Fla. 2005) (“[W]e return to the plain meaning of the rule as specifically set forth in the words of the rule as discussed above.”); Chem-rock, 71 So.3d at 792 (“Our plain meaning interpretation of the rule in Wilson remains applicable to the current rule [as amended in 2006]”).

In the instant case, no record activity occurred within the 10 months immediately preceding the service of such notice, no record activity occurred within the 60 days immediately following the service of such notice, and no stay was issued or approved prior to the expiration of such 60-day period. It was not until four days before the hearing that the bank sought to show good cause in writing why the action should remain pending. Under rule 1.420(e)’s plain meaning, the bank’s good cause showing was untimely. Therefore, the judge who issued the final order of dismissal for lack of prosecution did so properly.

Our reasoning is consistent with our sister court’s reasoning in Turner v. FIA Card Svcs., N.A., 51 So.3d 1242 (Fla. 3d DCA 2011). Given the opinion’s similarity to this case, we cite the opinion virtually in its entirety:

It is undisputed that there was no record activity for a period of ten months immediately preceding the trial court’s issuance of a Notice of Lack of Prosecution on November 24, 2009. It is also undisputed that no record activity took place during the sixty-day period following the court’s Notice. The court refused to dismiss the action because [the plaintiff] filed on February 1, 2010, a showing of good cause. The hearing on the Notice was set for February 5, 2010. Rule 1.420(e) provides that this showing of good cause must be made “at least 5 days before the hearing.” The trial court stated that the timeliness was “close enough. We conclude that “close enough” is not “good enough.
The Florida Supreme Court in Wilson v. Salamon, 923 So.2d 363, 368 (Fla. 2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in. the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause—“at least five days before the hearing,” The rule does not read more or less five days, or around five days. By filing the showing of good cause on February 1, [the plaintiff] did so four days before the hearing. If this is close enough, what about February 2, three days before? We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states “5 days, we can require no less.

Id. at 1242-43 (emphasis added; footnote omitted).

Based on the foregoing, we reverse the final judgment of foreclosure and remand for reinstatement of the final order of dismissal.

Reversed and remanded for reinstatement of final order of dismissal.

Taylor and Klingensmith, JJ., concur.


author: Damoorgian, J.

text:
    Kizzie Shanika STYLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-0165
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

      Carey Haughwout, Publie Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm , Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Kizzie Styles, appeals her conviction and sentence for one count of first degree murder with a firearm. Appellant argues the trial court reversibly erred by: (1) denying her motion for judgment of acquittal; (2) excluding evidence of the victim’s purported reputation for violence; (3) denying her motion for mistrial based on the prosecutor’s comments during opening and closing; and (4) restricting cross-examination of an eyewitness. We affirm on all grounds and write only to address Appellant’s argument that the trial court abused its discretion in excluding evidence of the victim’s purported reputation for violence.

The State’s evidence at trial established the following. Appellant and the victim had an ongoing romantic relationship which could best be described as tumultuous. On the night of the murder, Appellant, the victim, and the victim’s then girlfriend were in a parked vehicle together. Appellant, who was sitting in the back seat, pulled out a gun and shot the victim several times from behind and several more times after she exited the vehicle. At some point, the victim shot back, hitting Appellant twice. The victim’s girlfriend was also shot, but survived and testified against Appellant. The victim died from his injuries on the way to the hospital.

Appellant’s theory of défense at trial was that the victim and his girlfriend were the shooters, and that Appellant was the unarmed victim of their drug-fueled shootout. To support this theory, Appellant relied upon the testimony of a toxicologist who established that the victim had alcohol and methylone in his system when he died. The toxicologist explained that a person under the influence of methylone can become anxious, agitated, and paranoid depending on the user’s underlying personality. In light of the toxicologist’s testimony, Appellant sought to introduce evidence of the victim’s alleged reputation for violence and his history of assaulting females with firearms. The court denied the motion. Notwithstanding the court’s ruling, Appellant testified on direct that the victim was a violent, drug-user. Appellant was ultimately found guilty of first degree murder as charged and sentenced to life in prison.

On appeal, Appellant argues that the trial court abused its discretion in preventing her from introducing evidence of the victim’s reputation for violence. Appellant maintains that such evidence was relevant in that it tended to show that the victim was the aggressor, which in turn could have supported her theory that she was the unarmed victim of a drug-fueled shoot-out. The State counters that the court properly excluded evidence of the victim’s purported reputation for violence because Appellant never asserted the defense of self-defense. We agree with the State.

Under Florida law, it is well established that generally, “[e]vidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion.” § 90.404(1), Fla. Stat. (2015). However, “evidence of a pertinent trait of character of the victim of the crime offered by an accused” is admissible to prove that the victim acted in conformity with that character trait at the time of the crime. § 90.404(l)(b)l., Fla. Stat. (2015). Before a defendant is permitted to introduce evidence of a victim’s aggressive character, however, the defendant must affirmatively assert a self-defense claim or present evidence casting doubt on who was the first aggressor. See Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA 1977) (“Evidence of a deceased’s violent character is admissible when self defense is asserted if there is an issue as to either the conduct of the deceased or the reasonableness of the defendant’s belief as to imminent danger from the deceased.”); Dupree v. State, 615 So.2d 713, 720-21 (Fla. 1st DCA 1993) (“[W]e have found no Florida case in which aggressive character evidence was allowed without evidence as well of self-defense or doubt regarding who was the first aggressor.”); see also Antoine v. State, 138 So.3d 1064, 1074 (Fla. 4th DCA 2014) (reiterating that “[a] victim’s reputation for violence is admissible in self-defense cases, regardless of the defendant’s knowledge, to demonstrate that the victim was the aggressor”).

In the present case, it is undisputed that Appellant did not raise the defense of self-defense at trial. Quite to the contrary, Appellant’s entire defense rested on the theory that she never touched or fired a gun and was merely an innocent bystander victim. Accordingly, the trial court properly denied Appellant’s request to introduce evidence of the victim’s reputation for violence. See Dupree, 615 So.2d at 721 (holding “that the trial court properly excluded the proffered character evidence, because the defendant did not show how the victim’s character was pertinent, that is, he did not rely on the defense of self-defense or raise an issue concerning who was the initial aggressor”). Additionally, it is worth noting that despite the court’s ruling, Appellant was permitted on direct to paint a portrait of the victim as an overall violent, drug-using individual. See Witham v. Sheehan Pipeline Constr. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010) (“An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.”); see also Johnson v. State, 204 So.3d 521, 522 (Fla. 4th DCA 2016) (applying the harmless error holding from Witham to a criminal case).

Affirmed.

May and Conner, JJ., concur.


text:
    Geza HORVATH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1719
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

In this appeal, the trial court gave a jury instruction that possession of recently stolen property, unless satisfactorily explained, gives rise to an inference appellant knew or should have known the property was stolen. We find the trial court gave this instruction in error, and thus, we reverse the two convictions for dealing in stolen property. We affirm the two convictions for false verification of ownership to a pawn broker without further comment.

At trial, the testimony established that appellant was a friend of the victim. Sometime between June 6 and June 9, the victim loaned appellant a ladder, a chainsaw, and a pressure washer for appellant to remedy a homeowner association violation. The victim even helped appellant use the equipment until it was too dark to continue. The victim told appellant that he could continue to use the equipment until the project was completed. The victim did not specify how long appellant could keep the equipment, but the trial testimony confirmed that the city gave appellant two weeks to complete the project.

The victim was out of town from June 15 to June 30. When the victim returned, he tried to contact appellant without success. The victim went to appellant’s home, and was able to retrieve only the ladder at appellant’s residence. The victim, who never heard from appellant, finally reported the chainsaw and pressure washer stolen to the police.

The chainsaw and pressure washer were eventually located at a pawn shop, with the transaction forms showing appellant had pawned the chainsaw on June 10 and the pressure washer on June 16. Appellant signed forms affirming that he was the owner of the two items he pawned. The victim testified that the recovered equipment was in the same condition as when he lent them to appellant.

Appellant, at trial, claimed that he was unable to use the pressure washer because there was a hole burned in the water hose and that he accidentally dropped the chainsaw while cutting tree limbs. Appellant claimed that he pawned the items in order to get money to buy the victim replacement equipment.

Appellant objected to instructing the jury on the inference that his possession of the chainsaw and pressure washer meant that he knew or should have known the property was recently stolen. Appellant argued that the property was not, in fact, stolen since the victim voluntarily lent the equipment to him to use. The trial court overruled the objection, and stated:

I understand again what your argument is, he had possession [sic] to have those tools and specifically the chainsaw and the pressure washer at his home. He certainly didn’t have—I guess my position would be that once he left his property with those items, to go to a pawn shop, at that point he no longer has permission to temporarily have them. He has basically converted them to his own use and they become stolen property.

The trial court instructed the jury that to prove the crime of dealing in stolen property, the state must prove beyond a reasonable doubt that appellant trafficked in or endeavored to traffic in a chainsaw and a pressure washer and that appellant knew or should have known that the items were stolen. The court further instructed the jury, over appellant’s objection:

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

The jury convicted appellant of each count, and this appeal ensued.

The decision to give a jury instruction is reviewed for abuse of discretion. Ward v. State, 40 So.3d 854, 856 (Fla. 4th DCA 2010). However, a trial court’s discretion is limited by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). Finally, and most significantly, “[a]s with all jury instructions, there must be an appropriate factual basis in the record in order to give [an] instruction” on the inference arising from possession of recently stolen property. Consalvo v. State, 697 So.2d 805, 815 (Fla. 1996); accord Ward, 40 So.3d at 856.

In order to prove the crime of dealing in stolen property, the state must prove that the defendant trafficked in, or endeavored to traffic in, property he knew or should have known was stolen. § 812.019(1), Fla. Stat. “ ‘Stolen property’ means property that has been the subject of any criminally wrongful taking.” § 812.012(7), Fla. Stat. “Traffic” means “[t]o sell, transfer, distribute, dispense, or otherwise dispose of property” or “[t]o buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” § 812.012(8)(a), (b), Fla. Stat. Thus, the statute requires the state to prove that the defendant trafficked or sold property that he knew was stolen, or rather, the “subject of any criminally wrongful taking.” Selling the property of another person, without permission to sell that property, could potentially satisfy the requirements of the statute.

However, in this ease, the state sought, and the trial court agreed to give, Florida Standard Jury Instruction (Criminal) 14.2, which provides that the following inference may be given, when applicable, in conjunction with the instruction for dealing in stolen property: “Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” This instruction tracks the language of section 812.022, Florida Statutes.

The case of Jones v. State, 495 So.2d 856 (Fla. 4th DCA 1986), is instructive. In Jones, the defendant took a car from an automobile dealership, claiming it “was in his possession pursuant to a legitimate purchase agreement with a used car dealer.” Id. at 857. The dealer, however, claimed that the defendant had permission only to take the car for a test drive. The dealer reported the car stolen eight days later. The trial court instructed the jury on the presumption arising from the, possession of recently stolen property.

This court determined that the giving of this specific instruction was reversible error inasmuch as “[t]he only issue at trial was whether [the defendant] intended to steal the car or took it innocently.” Id. The court explained:

Under the instruction, before the jury could make the presumption, it would have to find that the property was stolen. If the jury found that the car was stolen, however, it would find [the defendant] guilty and the case would be resolved. In other words, there would then be no need for the presumption. The presumption applies in a different type of case, that is, where the property is undisputably [sic] stolen and the question is who stole it. The only possible effect of the instruction here was to allow the jury to presume [the defendant] was guilty because he was in possession of the car.

Id.

Similarly, in the present case, the jury could find that appellant sold the equipment without the owner’s permission, and the case regarding dealing in stolen property would be resolved. Further, in this case, like Jones, appellant had permission, at least initially, to possess the chainsaw and pressure washer. Like in Jones, the question was not who possessed the property or who later converted or stole the property. Rather, it was undisputed that the victim lent the property to appellant. The issue that remained was whether appellant dealt in stolen property when he sold the property to the pawn broker. If he did, then like in Jones, “there would then be no need for the presumption.” Id. Thus, it was error to give this instruction.

Our holding is consistent with other cases that have reversed where the trial court gave an instruction on the inference arising from possession of recently stolen property in the absence of a proper factual basis. See Ward, 40 So.3d at 857 (reversing where the stolen property was never found in the defendant’s possession); King v. State, 431 So.2d 272, 273 (Fla. 5th DCA 1983) (reversing where no evidence that appellant “possessed the goods to the extent that he exercised any dominion and control over them”); Boone v. State, 711 So.2d 594, 596 (Fla. 1st DCA 1998) (reversing where “no evidence suggests that appellant, at the time he was taken into custody, personally possessed or had control or custody over the stolen boxes”); Jeudy v. State, 209 So.3d 37, 39 (Fla. 4th DCA 2016) (reversing where court gave instruction on inference arising from proof of purchase of stolen property “at a price substantially below the fair market value” where state did not present evidence of fair market value at time of purchase); Nshaka v. State, 92 So.3d 843, 847 (Fla. 4th DCA 2012) (reversing where “no proof was presented that [defendant] had personal and exclusive dominion and control over the stolen property,” which had not been recently stolen); Barfield v. State, 613 So.2d 507, 507 (Fla. 1st DCA 1993) (reversing where court gave instruction on inference arising from proof of purchase of stolen property “at a price substantially below the fair market value” where “[n]o concrete evidence of the [property’s] current fair market value was offered at trial”).

In summary, we find the trial court erred in giving this instruction, and as such, we reverse and remand regarding the two convictions of dealing in stolen property. As to the two convictions of false verification of ownership to a pawnbroker, we affirm.

Affirmed in part, reversed in part, and remanded.

Warner and Taylor, JJ., concur.


author: Gross, J.

text:
    Ronmika Lashelle COATES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4218
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Appellant Ronmika Lashelle Coates appeals her conviction and sentence for grand theft. She argues the trial court erred in admitting a state exhibit under the business records exception to the rule against hearsay. Because the exhibit was not made at or near the time of the incident nor was it made as part of a regular business practice, we reverse and remand for a new trial.

On December 15, 2014, appellant was apprehended by Home Depot’s asset protection team after one of the security employees observed her put numerous items in her purse and attempt to leave the store without paying for them. After she was stopped, the security employee entered information about the items taken, including SKU number, price, and quantity, into the store’s case management system in accordance with standard operating procedure.

At trial, during the asset protection manager’s testimony, the state sought to admit a list of the stolen items, along with a business record certification that had been signed and notarized by the manager. The list was dated September 25, 2015, which was 4 days before trial. The manager testified that the information in the list was compiled the day of the incident, by the asset protection employee who observed and apprehended appellant, that the information was kept in the ordinary course of business, and that it was Home Depot’s regular practice to keep the record. Appellant timely objected to the list.

On voir dire by appellant, the manager clarified that, while the information contained in the list was compiled the day of the incident, this particular list was created several days before trial, at the prosecutor’s request.

Before ruling, the trial court conducted its own inquiry. The court’s questions focused on the information contained in the list. The manager confirmed that the information was kept and maintained in the ordinary course of business on the date of the incident and was retrieved from Home Depot’s case management system, and that he had knowledge as to how the information was prepared in the system. The manager further testified that the total value of stolen items on the list was a true and accurate reflection of the value of the stolen property on the date of the incident. Appellant maintained her hearsay objection.

The trial court overruled appellant’s objection, finding that the business records exception was met “as to the information contained in the line items.” It found that it was “a compilation of data maintained by the corporation on that date, and it’s been testified to by a person who is either the records custodian or someone with knowledge of that.”

Appellant argues the trial court erred in admitting the list as a business record because it was neither made at or near the time of the incident nor was it created as part of Home Depot’s regular business practice.

Florida’s business records exception to the rule against hearsay is codified in section 90.803(6), Florida Statutes (2015). It includes any

memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation ....

Id, To have a record admitted under this exception

the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008). “If evidence is to be admitted under one of the exceptions to the hearsay rule, it must be offered in strict compliance with the requirements of the particular exception.” Id. at 957 (quoting Johnson v. Dep’t of Health & Rehab. Servs., 546 So.2d 741, 743 (Fla. 1st DCA 1989)).

A business record “is reliable because it is of a type that is relied upon by a business in the conduct of its daily affairs and the records are customarily checked for correctness during the course of the business activities.” Charles W. Ehrhardt, Florida Evidence § 803.6, at 890 (2006 ed.). Computer printouts, like business records, are admissible “if the record custodian or other qualified witness is available to testify to the manner of preparation as well as the reliability and trustworthiness of the record.” Id. at 911; see also Jackson v. State, 877 So.2d 816, 818 (Fla. 4th DCA 2004) (“The fact that the information was printed out at the request of a party does not ‘deprive the printouts of its business-record character.’ ”) (quoting United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002)). Indeed, it has become common practice in foreclosure cases to admit properly authenticated loan payment history printouts as business records. See Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014).

Here, the state did not seek to introduce a printout of the information entered by the security guard on the day of the incident. Instead, it offered a list cobbled together by the asset protection manager several days before trial at the state’s request, from the information entered by the security guard on the day of the incident. The list was thus created “exclusively for the purpose of the instant prosecution.” Yisrael, 993 So.2d at 957. As such, it lacked the indicia of reliability and trustworthiness required of an exhibit seeking admission as a business record.

We therefore reverse appellant’s conviction and sentence and remand for a new trial. See Lassonde v. State, 112 So.3d 660 (Fla. 4th DCA 2013).

Ciklin, C.J. and Kuntz, J., concur.


author: Kuntz, J.

text:
    Deonte Davares ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2105
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]
    Jonathan R. Kaplan, of Jonathan R. Kaplan, LLC, Special Assistant Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The defendant appeals his convictions for two counts of first-degree murder with a firearm, one count of attempted first-degree murder with a firearm, and one count of shooting a firearm into an occupied vehicle. The defendant argues that the trial court abused its discretion by allowing the State to cross-examine him regarding his statements to the police after his arrest but prior to being read his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

During cross-examination of the defendant, the State asked the defendant whether he was read his Miranda rights on the day of his arrest. Counsel for the defendant objected and, at sidebar, the State stated that it intended to question the defendant about his ability to remember certain events and not others. The court explained that the State was entitled to ask the question to establish that he had not yet invoked his right to remain silent when he answered certain questions. The court also explained that the State has “to get into that in order to show a voluntary statement, and if he’s being interrogated.”

There is no doubt that “the due process clause of Florida’s constitution prohibits the use of post-arrest, pre-Miranda silence at trial.” Carlisle v. State, 164 So.3d 69, 70 (Fla. 2d DCA 2015) (citing State v. Hoggins, 718 So.2d 761, 768-70 (Fla. 1998)). But, that is not what happened in this case. Here, the defendant did not remain silent, did not invoke his right to remain silent, and the State’s cross-examination did not draw the jury’s attention to his right to remain silent. The State was not attempting to utilize his silence to its benefit as the defendant had not exercised his right to remain silent.

Further, while a defendant’s statements may not be admissible in the state’s casein-chief, the Supreme Court has held that a defendant’s statements can be used for impeachment purposes even when those statements were obtained in violation of Miranda. Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In Harris, the Court explained that “[hjaving voluntarily taken the stand, [the defendant] was under an obligation to speak truthfully ... and the prosecution here did no more than utilize the traditional truth-testing of the adversary process.” Id. at 226, 91 S.Ct. 643.

Florida’s courts have also applied this impeachment exception. See, e.g., Nowlin v. State, 346 So.2d 1020, 1024 (Fla. 1977) (when “the state, in order to impeach a defendant’s credibility, chooses to present evidence of a defendant’s incriminating statements which are inconsistent with trial testimony of the defendant and which are inadmissible in the case-in-chief because of the failure of custodial officers to give Miranda warnings, the statements must be shown to be voluntary before they may be admitted.”)

Allowing the State to question the defendant regarding his statements to the police did not impermissibly seek to draw the jury’s attention to the defendant’s invocation of his right to remain silent. In this case, the defendant had not invoked his right to remain silent and the State sought to impeach his voluntary trial testimony with his post-arrest pre-Miranda statements.

As the court correctly stated in response to the defendant’s objection at trial, the State is permitted to use a defendant’s prior inconsistent statements for impeachment purposes when those statements were voluntarily given by the defendant. Therefore, we find the trial court did not abuse its discretion by allowing the ;pre-Miranda statements into evidence and the defendant’s convictions are affirmed.

Affirmed.

Ciklin, C.J., and Gross, J., concur.


text:
    Eddie TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0766
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Eddie Tyler, appeals the trial court’s order summarily denying his motion to withdraw his plea after sentencing. We reverse.

In 2014, Appellant was charged with one count of being a delinquent in possession of ammunition. After the trial court denied Appellant’s motion to suppress certain evidence, Appellant pled guilty and thereafter appealed the suppression ruling. While his appeal was pending and his sentence stayed, Appellant was charged in cases 15-5546CF and 15-7683CF with committing fourteen new offenses, including two counts of felon in possession of a firearm. The being a delinquent in possession of ammunition conviction served as the predicate felony to the two possession of a firearm charges. Appellant and the State ultimately entered into a negotiated plea deal for both cases. Pursuant to the plea deal, Appellant pled guilty to some of the charges, including the two felon in possession of a firearm charges, and the State nolle prossed the remaining counts. Appellant ultimately received a combined ten year prison sentence.

Five days after Appellant entered his plea and was sentenced in the underlying two cases, we reversed his being a delinquent in possession of ammunition conviction. Tyler v. State, 185 So.3d 659, 664 (Fla. 4th DCA 2016). Shortly thereafter, Appellant timely moved to withdraw his plea in the underlying two cases. In his motion, Appellant argued that had he known the predicate felony was going to be reversed, he may not have agreed to the terms of the plea deal, especially because without that prior felony conviction he would have been eligible for a youthful offender sentence. The trial court summarily denied the motion and this timely appeal follows.

“Where a motion to withdraw a plea is filed after sentencing, the defendant has the burden of proving that a manifest injustice has occurred and that withdrawal is necessary to correct the manifest injustice.” Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA 2009). “This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice.” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003).

Our holding in Johnson v. State, 664 So.2d 986 (Fla. 4th DCA 1995), disapproved in part on other grounds by 668 So.2d 194 (Fla. 1996), is instructive. In that case, while the defendant’s conviction for battery on two law enforcement officers was pending on appeal, he was arrested and charged with one count of possession of a firearm by a felon and one count of possession of cocaine. Id. at 987. The two pending battery convictions served as the predicate felony for the felon in possession of a firearm charge. Id. The defendant ultimately pled no contest to the firearm charge in exchange for the State agreeing to nolle prosse the possession of cocaine charge. Id. After the court withheld adjudication on the firearm charge and sentenced the defendant, we reversed the defendant’s battery conviction. Id. The defendant thereafter moved to set aside the felon in possession of a firearm conviction based on the predicate felony having been reversed. Id. The trial court denied the motion and the defendant appealed. Id.

This Court ultimately reversed with directions to vacate the defendant’s conviction of possession of a firearm by a convicted felon, reasoning as follows:

[I]n the instant case, the conviction for possession of a firearm by a convicted felon is based solely on the validity of the appellant’s conviction for battery, which was reversed on appeal. Convictions which are reversed are considered a nullity. Therefore, since there is no predicate conviction upon which the charge of possession of a firearm by a convicted felon can be based, the conviction must necessarily be vacated.

Id. at 988 (internal citations omitted); see also State v. Snyder, 673 So.2d 9, 11 (Fla. 1996) (reiterating that “even though a defendant is ‘convicted’ when adjudicated guilty, fairness requires that he or she be permitted to attack a conviction for possession of a firearm when the predicate felony conviction is subsequently reversed on appeal”).

Thus, in the present case, regardless of the voluntariness of the plea, fairness requires that Appellant be permitted to withdraw his plea as to the two felon in possession of a firearm counts in light of this Court’s reversal of the predicate felony. See Snyder, 673 So.2d at 11. Because the plea bargain in this case was based on multiple charges, however, permitting Appellant to withdraw his plea on two of the charges abrogates the entire plea bargain. See Whitaker v. State, 881 So.2d 80, 82 (Fla. 5th DCA 2004); see also Taylor v. State, 132 So.3d 882, 885 (Fla. 2d DCA 2014) (holding that although an ambiguity in the defendant’s plea agreement entitled him to withdraw his plea, “that same ambiguity means that he is not entitled to enforce the agreement against the State”).

For the foregoing reasons, we reverse and remand with instructions that the trial court permit Appellant to withdraw his entire plea in cases 15-5546CF and 15-7683CF with leave for the State to pursue the remaining charges against Appellant, including those which were nolle pressed.

Reversed and remanded.

Gerber and Forst, JJ., concur.

      . Specifically, in case 15-5546CF, Appellant was charged with two counts of robbery with a firearm, two counts of aggravated assault with a firearm, one count of fleeing or attempting to elude (high speed reckless), one count of felon in possession of a firearm or axnmunition, and five counts of false imprisonment. In case 15-7683CF, Appellant was charged with one count of felon in possession of a firearm or ammunition, one count of aggravated assault with a firearm, and one count of shooting into an occupied vehicle.


text:
    Jeffrey Michael FLYNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3792
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Jeffery Michael Flynn appeals his conviction and sentence for one count of kidnapping and one count of concealment of a child contrary to a court order. We affirm in all respects but write to address a discrepancy in the case law regarding the crime of concealment of a child contrary to a court order.

Appellant was arrested and charged with several offenses, including concealment of a child contrary to a court order, after he absconded with his child for several months in violation of a court order providing that Appellant and his ex-wife had shared custody of the child. At trial, Appellant moved for a judgment of acquittal on the concealment of a child contrary to a court order charge. The controlling statute states:

It is unlawful for any person, in violation of a court order, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, with personal knowledge of the order.

§ 787.04(1), Fla. Stat. (2014). Relying on the Second District’s opinion in Merkle v. State, 88 So.3d 375, 377 (Fla. 2d DCA 2012), Appellant argued that he could not be found guilty as there was no court order in place expressly directing Appellant to disclose his child’s location. The court denied Appellant’s motion, ruling that pursuant to the plain language of the controlling statute and the Fifth District’s opinion in Costlow v. State, 543 So.2d 1259, 1262 (Fla. 5th DCA 1989), Appellant’s act of concealing the child’s location from his ex-wife was sufficient to support the charge.

We affirm the trial court’s ruling and in doing so, reject the holding set forth in Merkle. 88 So.3d at 377. There, the Second District held that a person cannot commit the violation of concealment of a child in violation of a court order unless there is a court order in place expressly telling the defendant that he or she is required to disclose the location of the child to the court. Id. In other words, the Merkle case “suggests that the statutory offense is actually concealing the location of the child from the court.” Id. at 378 n.4. This holding is at odds with the Fifth District’s decision in Costlow, where the court held that “ ‘[cjoncealmenfi ” means “concealing a child from a person entitled to its custody.” 543 So.2d at 1262. We find Costlow to be consistent with the plain language of section 787.04(1) and, therefore, adopt its holding. Had the legislature wished to make concealment of a child a crime only if the concealment was “from the court,” it would have specified as such. Instead, it left the terms open to those set in any “court order.” § 787.04(1), Fla. Stat. (2014). Most time sharing orders, including the one at issue here, require persons with joint custody to keep the other custodial person informed with respect to the whereabouts and activities of the child. Thus, under the plain language of the statute and as outlined by Costlow, the court correctly denied Appellant’s motion for judgment of acquittal on the concealment of a child contrary to a court order charge.

Finding no merit in Appellant’s additional arguments on appeal, we affirm. We also certify conflict with Merkle.

Affirmed. Conflict certified.

Gerber and Forst, JJ., concur.