text:
    COCONUT GROVE ACQUISITION, LLC, etc., Appellant, v. S & C VENTURE, etc., et al., Appellees.
    No. 3D17-434
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    Akerman LLP, and Kristen M. Fiore (Tallahassee), Michael O. Mena, and Alexandra M. Mora, for appellant.
    Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellees.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

Coconut Grove Acquisition, LLC ("CGA") appeals from a final judgment entered in favor of S&C Venture, etc., ("S&C"), among others, who were the defendants below in this breach of promissory note and foreclosure action. Because we find that the law and the record fully support the trial court's rulings, we affirm.

BACKGROUND

S&C owns commercial property in Miami-Dade County. In September 2007, S&C executed a balloon payment promissory note ("the Note") for more than $7.9 million, secured by a mortgage on its commercial property, to Mercantil CommerceBank, N.A., f/k/a CommerceBank, N.A. ("Mercantil"). The loan provided for a maturity date of August 20, 2012, and included an option of extending the maturity date by five years, until August 20, 2017, if certain requirements were met. S&C maintained an operating account at Mercantil, from which Mercantil withdrew S&C's monthly mortgage payments.

In 2010, after S&C defaulted on the Note, Mercantil and S&C entered into a forbearance agreement, which reaffirmed the original obligations in the loan documents except as specifically modified in the forbearance agreement. Mercantil agreed to forbear on any legal action until the maturity date of the loan so long as, among other things, S&C did not default again. It is undisputed that S&C never missed a payment to Mercantil under the forbearance agreement.

The confusion that spawned this litigation commenced in November 2011, when Mercantil sold the loan to Stabilis Fund II, LLC ("Stabilis"). Although it no longer held the Note and was no longer in privity with S&C, Mercantil sent S&C a letter ("goodbye letter") on November 14, 2011, via overnight mail, informing S&C that Mercantil had sold the mortgage to Stabilis and directing S&C to submit its payments to Stabilis at the address provided in the letter. This letter also informed S&C that the monthly payments would no longer be deducted from the Mercantil operating account and provided a phone number to call if S&C had any questions. Despite these instructions, S&C continued to deposit sufficient funds to cover its monthly payment obligations into the operating account at Mercantil rather than sending the payments directly to Stabilis.

It was not until December 2011 that S&C received a letter ("hello letter") from Stabilis's loan servicer, which provided specific payment instructions. The hello letter informed S&C that it would receive a billing statement two weeks prior to a payment due date. However, rather than receiving the promised billing statement, S&C received a default notice from Stabilis on January 11, 2012, informing S&C that the entire loan balance was immediately due and owing because of existing defaults. In the ensuing months, while the parties attempted to resolve their disputes, S&C sent Stabilis all monthly payment due under the terms of the loan documents, and Stabilis accepted each payment, with the qualification that it was not waiving any preexisting default.

On July 19, 2012, S&C attempted to exercise its right to extend the maturity date of the loan from August 20, 2012 to August 20, 2017, pursuant to the terms of the loan documents and the forbearance agreement. To that end, S&C tendered the required extension fee to Stabilis. Stabilis rejected the tender and informed S&C on August 24, 2012, that the maturity date would not be extended because S&C's loan was in default.

Thereafter, Stabilis filed a two-count complaint against S&C for breaching the Note and for foreclosure on the collateral property. Stabilis argued, among other things, that S&C failed to make its monthly payments in November and December 2011. S&C responded that Stabilis and its agents were responsible for any delay in payments because they caused the confusion that resulted in the delay. S&C also counterclaimed, seeking a declaratory judgment finding that it had properly extended the maturity date of the loan. In December 2014, Stabilis assigned the loan to CGA.

After a non-jury trial in November 2016, the trial court entered a detailed forty-six-page final judgment in favor of S&C, concluding that: (1) CGA failed to prove that S&C breached the note; (2) CGA failed to prove that it is entitled to foreclosure, and it would be inequitable, unjust, and unconscionable to foreclose; and (3) S&C is entitled to declaratory judgments finding that S&C is not in default, the January 2012 notice of default is invalid, S&C's rights under the loan documents remain valid and enforceable, and S&C properly exercised its option to extend the loan's maturity date to August 20, 2017. Thereafter, the trial court denied CGA's motion for rehearing, and this appeal followed.

ANALYSIS

We review the trial court's construction and interpretation of notes and mortgages de novo; however, we review the trial court's findings of facts to determine if they are supported by competent substantial evidence. Smith v. Reverse Mortg. Sols., Inc., 200 So.3d 221, 224 (Fla. 3d DCA 2016).

CGA contends on appeal that S&C defaulted because it failed to make its required monthly payments in November and December 2011 despite receiving the goodbye letter from Mercantil before either payment was due, a letter which specifically instructed S&C to pay Stabilis at an address contained therein. We, however, find that based on the place of payment clause contained in the Note, S&C was not required to follow the instructions contained in Mercantil's goodbye letter, and because S&C continued to deposit sufficient funds to cover its payment obligations into its account with Mercantil, S&C was not in default of either the Note or the forbearance agreement.

The following findings by the trial court are supported by competent substantial evidence: (1) in November and December 2011, S&C continued to make payments into the operating account held at Mercantil; (2) sufficient funds existed in the operating account to cover all loan payment obligations that came due during that time; and (3) S&C did not receive the hello letter from Stabilis's loan servicer, which was the first letter from Stabilis to include payment instructions, until after the November and December 2011 payments were due.

The place of payment clause in the Note, which the forbearance agreement does not modify, provides: "This Note is payable at the place designated hereinabove or at such other place as the payee or holder hereof may hereafter designate in writing ." (emphasis added). The plain meaning of this provision is controlling. Bradley v. Sanchez, 943 So.2d 218, 221 (Fla. 3d DCA 2006) ("Where there is no facial ambiguity in the portion of the subject contract, the provision must be afforded its plain meaning.") (internal quotation and citation omitted). The Note designated that S&C deposit sufficient funds into the operating account S&C opened at Mercantil for that purpose. It is undisputed that since the execution of the forbearance agreement, S&C complied with its contractual obligations by depositing sufficient funds into the operating account at Mercantil, which was the place "designated hereinabove," until another place was designated by "the payee or holder" of the Note.

Although Mercantil attempted to change the place of payment when it sent its goodbye letter to S&C after it sold the loan to Stabilis, Mercantil was no longer the payee or holder of the Note, and it therefore had no authority to change the place of payment. It is neither the fault of S&C nor Mercantil that S&C did not receive new payment instructions from Stabilis, the then-current payee and/or holder of the Note, until after the November and December 2011 payments became due. In fact, if S&C had sent its monthly payments to the address contained in the "goodbye letter," these payments would have been in conflict with the binding place of payment term in the Note. Accordingly, S&C's decision to continue depositing sufficient funds into the operating account to cover its monthly payment obligations was in compliance with its contractual duties.

Lastly, we conclude that the trial court did not err by declaring that S&C properly extended the maturity date of the loan to August 20, 2017. On appeal, CGA contends that one of the conditions precedent for extending the maturity date of the loan was not met. Specifically, CGA contends that the forbearance agreement's required debt service coverage ratio ("DSCR"), which is a measure of the ability of net income to service a debt, was not met as of the initial maturity date, August 20, 2012. The parties contested the measure of the DSCR vigorously below, and the trial court found that the required DSCR of 1.3:1 was satisfied after hearing detailed testimony from the parties' expert witnesses and evaluating the witnesses' credibility. The trial court's finding is supported by competent substantial evidence, and thus, we will not second guess the trial court on appeal. Bare Necessities, Inc. v. Estrada, 902 So.2d 184, 185 (Fla. 3d DCA 2005) (noting that "when competent, substantial evidence supports a trial court's ruling, the appellate court will not 'second-guess the trial court' ") (citing Bryan v. Butterworth, 692 So.2d 878, 881 (Fla. 1997) ).

CONCLUSION

Because there is competent substantial evidence in the record that supports the trial court's finding that S&C did not fail to make its monthly payments in November and December 2011, we find no error in the trial court's comprehensive order concluding that S&C did not breach the terms of the forbearance agreement or other loan documents, CGA failed to prove that it is entitled to foreclose on S&C's commercial property, and S&C properly extended the maturity date of the loan. We also find the remainder of CGA's arguments to be without merit, and thus, we decline to address them further. Accordingly, we affirm in all respects.

Affirmed.

      The trial court's order included several findings related to the discretion the trial court has to deny foreclosure on equitable grounds. See Amerifirst Fed. Sav. & Loan Ass'n of Miami v. Century 21 Commodore Plaza, Inc., 416 So.2d 45, 46 (Fla. 3d DCA 1982) ("It is axiomatic that a court of equity may refuse to foreclose a mortgage when an acceleration of the due date makes acceleration unconscionable and foreclosure inequitable and unjust."). However, we decline to address such issues because we find that there is no breach from which foreclosure could follow.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony DOYLE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-686
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Anthony Doyle appeals his convictions and sentences for extortion under section 836.05, Florida Statutes (2015), and written threats to kill or do bodily injury under section 836.10, Florida Statutes (2015), arguing that the dual convictions violate double jeopardy. We agree and therefore reverse and remand for resentencing.

The evidence adduced at trial was that Doyle sent a handwritten letter to his pastor, threatening "a slow and painful death" for the pastor's children and their families if the pastor failed to deliver $15,000 to Doyle or if he notified the police. Doyle claimed that he also received a letter, which he showed to the pastor, stating that the pastor had a package that Doyle was to pick up and take to the alleged extorters, or they would kill Doyle's parents and wife.

Doyle became the subject of the police investigation because the two letters contained the same handwriting and matched the handwriting in a written statement Doyle had provided the police in an unrelated case. The jury returned a guilty verdict on both charges. Doyle was sentenced to five years' incarceration on each charge, with each sentence to run concurrently, followed by ten years of probation. The sole issue on appeal is whether double jeopardy precluded convictions on both charges.

Section 836.05, "Threats; extortion," provides:

Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 836.05, Fla. Stat. (2015).

Section 836.10, "Written threats to kill or do bodily injury; punishment," provides:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 836.10, Fla. Stat. (2015).

Doyle argues that the elements of the two offenses are inseparable and that a conviction for written threats under section 836.10 does not include any additional elements not included for an extortion conviction under section 836.05. Alternatively, he suggests that even if the crimes contain different elements, a conviction for written threats under section 836.10 is necessarily subsumed by an extortion conviction under section 836.05. The State responds that each offense contains a different element; extortion includes malice, intent, and several different types of threats, while written threats to kill or do bodily harm contains the elements of sending the communication as well as that the threat could be to a family member.

"A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo." State v. Akins, 69 So.3d 261, 268 (Fla. 2011) (quoting Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) ). "The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature 'intended to authorize separate punishments for the two crimes.' "

Valdes v. State, 3 So.3d 1067, 1070 (Fla. 2009) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla. 1996) ).

Double jeopardy is governed by section 775.021, Florida Statutes, which codified the Blockburger "same elements" test. It provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense .... For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

§ 775.021(4)(a), Fla. Stat. (2015) (emphasis added).

"Under the basic rule of Blockburger and section 775.021(4)(a), if 'each offense requires proof of an element that the other does not,' separate punishments for each offense do not violate the prohibition against double jeopardy." Roughton v. State, 185 So.3d 1207, 1208 (Fla. 2016). Courts analyze only the statutory elements of each offense and do not assess the evidence or the facts as alleged in the information. State v. Carpenter, 417 So.2d 986, 988 (Fla. 1982).

There is no dispute that Doyle's offenses occurred "in the course of one criminal transaction." See § 775.021(4)(a), Fla. Stat. The essential elements of each offense as compared to the other are as follows:

Extortion - Section 836.05 Written Threats to Kill or Do Bodily Injury - Section 836.10 (1) a person writes or composes a (1) the defendant made a written, printed, or verbal communication containing a threat, communication of a threat to another and sends or procures sending of that communication, (2) in the communication, the defendant threatened to: (a) accuse another of a crime; (2) threatening to kill or do bodily (b) injure another person; injury (c) injure another's property or reputation; (d) expose another person to disgrace; (3) to the recipient of the threat or a (e) expose a secret; or member of his or her family. (f) impute deformity or lack of chastity (3) the threat was made maliciously n/a (4) the threat was made with the intent to: (a) extort money or pecuniary advantage n/a (b) compel a person to do any act or refrain from doing an act against his/her will.

Thus, extortion under section 836.05 may be committed by issuing a written threat to commit bodily harm on another, which encompasses all of the required elements of section 836.10-a written threat to kill or do bodily injury on the person threatened or a family member. The elements of extortion differ in that there must be malice as well as an intent to extort money or compel a person into action or inaction. But a conviction for written threats to kill or do bodily injury contains no further requirements.

The State's contention that the elements are different because the written threat under section 836.10 may be directed toward a family member is unpersuasive. Under the second element of extortion (as listed above), extortion may be committed by threatening to injure another person. See § 836.05, Fla. Stat. This is broad enough to encompass the third element required for written threats to kill or do bodily injury that the threat of injury is to the person receiving the threat or a member of his or her family. See id. § 836.10. A conviction for written threats under section 836.10 does not have any additional elements not contained in section 836.05. Therefore, dual convictions on both charges, arising out of the same criminal transaction, violate double jeopardy.

REVERSED AND REMANDED FOR RESENTENCING.

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

      The handwriting also matched writing samples Doyle provided in the instant case.

      The State also argues that Roughton v. State, 185 So.3d 1207 (Fla. 2016), controls in this case and that dual convictions under sections 836.05 and 836.10 do not violate double jeopardy based on the alternative conduct proscribed by each statute. This argument lacks merit. In Roughton, the court explicitly found that both lewd or lascivious molestation and sexual battery contain a different element that the other does not, based on the alternative conduct proscribed by each statute. 185 So.3d at 1210. As explained below, however, section 836.10 does not contain any element not found in section 836.05.

      Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: BLACK, Judge.

text:
    Alberto GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2351
    District Court of Appeal of Florida, Second District.
    Opinion filed February 23, 2018.
    Alberto Gonzalez, pro se.
   BLACK, Judge.

Alberto Gonzalez seeks review of the summary denial of his petition for writ of mandamus filed with the circuit court. Because the circuit court failed to conduct the necessary in camera review of the discovery evidence requested by Gonzalez, we reverse and remand for further proceedings.

Gonzalez was convicted of robbery, kidnapping, extortion, and grand theft in 2009. In 2016, Gonzalez requested copies of twenty-one CDs the State had listed as evidence in its case against Gonzalez. The State Attorney's Office responded and explained that fifteen CDs would be made available but that the remaining six CDs were exempt from public disclosure pursuant to sections 119.071(3)(a)(2) and 281.301, Florida Statutes (2015). The response was not sworn. The State Attorney's Office thereafter denied the request as to the six CDs.

Gonzalez subsequently filed a motion with the circuit court, seeking to compel the State to produce all twenty-one CDs, including the six CDs which the State Attorney's Office had determined to be exempt from disclosure. Gonzalez attached to his motion a copy of the initial request to the State, as well as the responses from the State Attorney's Office. The circuit court treated the motion to compel as a petition for writ of mandamus. See Hogan v. State, 983 So.2d 656, 658 (Fla. 2d DCA 2008) ("[A] mandamus petition ... is the appropriate vehicle for challenging the denial of access to judicial records." (citation omitted) ). After reviewing the motion, the court summarily denied it, finding that Gonzalez had established neither a clear legal right to the requested evidence nor an indisputable legal duty of production because the six CDs at issue were subject to public records exemptions. The court did not issue an alternative writ to the State to show cause why the petition should not be granted, and it did not conduct an in camera review of the six CDs to confirm whether their contents are exempt from disclosure.

"To the extent that records in his possession are subject to disclosure by law, the State Attorney has a ministerial duty to make them available in response to a proper request, and mandamus is an appropriate means of compelling compliance." Weeks v. Golden, 764 So.2d 633, 634 (Fla. 1st DCA 2000) (citing Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997) ); see also Potts v. State, 869 So.2d 1223, 1225 (Fla. 2d DCA 2004) ("Mandamus is the appropriate remedy since it is used to compel an official to perform lawful duties. A court-appointed lawyer is an 'official.' " (quoting Pearce v. Sheffey, 647 So.2d 333, 333 (Fla. 2d DCA 1994) ) ).

When, as in the instant case, certain statutory exemptions are claimed by the party against whom the public records request has been filed or when doubt exists as to whether a particular document must be disclosed, the proper procedure is to furnish the document to the trial judge for an in camera inspection.

Walton v. Dugger, 634 So.2d 1059, 1061-62 (Fla. 1993) ; see also Hollis v. Massa, 211 So.3d 266, 269 (Fla. 4th DCA 2017) ("Ordinarily, a trial court should not deny a petition for writ of mandamus without an evidentiary hearing merely because an official files an unsworn response claiming that he or she is not in possession of the requested material."). In camera review affords the trial judge an opportunity to "properly determine if the document is, in fact, subject to a public records disclosure." Walton, 634 So.2d at 1062. That is, without conducting an in camera inspection of the requested CDs, the circuit court could not conclude that their contents are exempt from disclosure under section 119.071(3)(a)(2) or section 281.301 ; nor could it determine whether redaction was possible. See Holley v. Bradford Cty. Sheriff's Dep't, 171 So.3d 805, 805 (Fla. 1st DCA 2015).

Accordingly, we reverse the denial of the petition for writ of mandamus and remand for the circuit court to conduct an in camera inspection of the six CDs to determine whether the contents of the CDs are subject to exemption under the identified statutes and, if so, whether redaction would allow their production.

Reversed and remanded.

CASANUEVA and LUCAS, JJ., Concur.

      In its response to this court's briefing order, the State properly conceded error.


author: MORRIS, Judge.

text:
    David WEEKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5526
    District Court of Appeal of Florida, Second District.
    Opinion filed February 23, 2018.
    Andrea Norgard and Graylin Corey Chastang, of Norgard, Norgard & Chastang, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

David Weeks appeals the order denying his amended motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.800(a). Because the very limited, twenty-three-page postconviction record does not conclusively refute Mr. Weeks' claim that his sentences of life imprisonment are illegal, we reverse and remand for the postconviction court to reconsider the motion.

Procedural History

In 1988, Mr. Weeks entered negotiated pleas in three different cases. In exchange for his pleas, the trial court sentenced him to concurrent terms of forty years' imprisonment for kidnapping and sexual battery with great force in case number CF86-304; concurrent terms of forty years' and fifteen years' imprisonment for burglary of a residence with an assault and attempted sexual battery in case number CF86-305; and concurrent terms of life probation for burglary of a dwelling with an assault and while armed and sexual battery with a deadly weapon in case number CF86-244. The sentences in case numbers CF86-304 and CF86-305 ran concurrently, and the sentences in case number 86CF-244 ran consecutively to the sentences in case numbers CF86-304 and CF86-305.

Mr. Weeks asserted in his motion that in October 2007, he admitted to violating his probation. At the sentencing following the violation of probation hearing, the prosecutor advised the trial court that the guidelines scoresheet prepared for the November 2, 1988, sentencing erroneously assessed 145 points for victim injury, assessing a total score of 663. The prosecutor stated that the original scoresheet was incorrect and that the victim injury points should be reduced from 145 to 85, reducing the total score to 603. The trial court accepted the lower score and sentenced Mr. Weeks to concurrent terms of life imprisonment.

Mr. Weeks further asserted that his guidelines scoresheet improperly assessed 85 victim injury points for death or serious injury pursuant to this court's decision in Speights v. State, 102 So.3d 671 (Fla. 2d DCA 2012), because serious injury or death are not essential elements of the crimes of which he was convicted. Absent the erroneous addition of the 85 points, Mr. Weeks asserted that the scoresheet would reflect a score of 518 points, resulting in a sentencing range of twenty-two to twenty-seven years' imprisonment. Even with a one-cell bump that was permitted without written reasons under Florida Rule of Criminal Procedure 3.701(d)(14) because he violated his probation, Mr. Weeks asserted the maximum sentence that the trial court could have imposed was forty years.

The postconviction court rejected Mr. Weeks' contention that the 85 points were improperly assessed. It further found that even assuming that the scoresheet improperly assessed 85 points so that the appropriate score was 518 points, the trial court was permitted to sentence Mr. Weeks to the next higher cell under rule 3.701(d)(14)

without requiring a reason for departure based on his violation of probation, which would have placed Mr. Weeks in a permitted sentencing range of twenty-two years to life. It concluded that because the trial court could have imposed a life sentence absent the error, the error did not render Mr. Weeks' sentence illegal.

Analysis

The State appropriately concedes that the postconviction court erred by ruling that 85 victim injury points were properly assessed. In Speights, this court held that Mr. Speights was improperly assessed victim injury points because the 1984 version of rule 3.701(d)(7) stated that victim injury is to be scored "if it is an element of any offenses at conviction" and "the phrasing of the [sexual battery with great force] statute requires the prosecution to prove only that a certain level of force was used but not that actual injury occurred" and not that the force caused an actual injury. 102 So.3d at 672-73 (emphasis in first quotation omitted). The crimes to which Mr. Weeks pleaded did not require the State to prove injury, so under Speights, the victim injury points were improperly assessed.

The State also appropriately concedes that the postconviction court erred by finding that even if the scoresheet erroneously assessed points for serious injury, the trial court was permitted to impose a life sentence because Mr. Weeks violated his probation. Mr. Weeks committed his offenses in 1986, and the 1986 version of rule 3.988 confirms Mr. Weeks' assertion that 518 points would place him in a cell that recommends a sentence of twenty-two to twenty-seven years; the next cell permits a sentence of twenty-seven to forty years. The postconviction court appears to have relied on a later version of rule 3.988, which would reflect that the permitted range of the next cell is twenty-two years to life. However, that version is not applicable to crimes that occurred in 1986. See Jones v. State, 615 So.2d 705, 706 (Fla. 2d DCA 1992) (holding that rule revision that was adopted in 1988 did not apply to offenses that took place in 1986). Rule 3.701(d)(14) gave the sentencing court discretion to impose a sentence in the next higher cell without requiring a reason for departure, and Mr. Weeks admits in his postconviction motion that he violated his probation on one occasion. The postconviction record reflects that the trial court could impose a sentence in the range of twenty-seven to forty years, but it does not show that the trial court could lawfully impose a life sentence.

Because the postconviction record does not conclusively refute Mr. Weeks' claim that his sentences of life imprisonment are illegal, we are required to reverse the postconviction court's order. See Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief."). We remand for the postconviction court to reconsider Mr. Weeks' motion. If upon reconsideration, the postconviction court finds that Mr. Weeks' life sentences are illegal, he is entitled to be resentenced. See Parks v. State, 223 So.3d 380, 383 (Fla. 2d DCA 2017) (en banc) ("[A] sentence that exceeds the statutory maximum may not be imposed even pursuant to a negotiated plea agreement, and it may be challenged at any time under rule 3.800(a).").

SILBERMAN and BADALAMENTI, JJ., Concur.

      Rule 3.701(d)(7) was amended after the date of Mr. Weeks' offenses to require assessment of points for "each victim physically injured during a criminal episode or transaction." Fla. Rules of Criminal Procedure re Sentencing Guidelines (rules 3.701 & 3.988), 509 So.2d 1088, 1089 (Fla. 1987). In adopting the amendment, the supreme court noted: "The present guidelines score physical victim injury if that injury is an essential element of the crime for which the defendant is convicted. They exclude nonphysical injury and physical injury if the injury is not an element of the crime." Id.


text:
    Griselda PORRO, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D17-2462
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018
    Griselda Porro, in proper person.
    Leslie Hinds, Chief Regional Legal Counsel, and Carlos A. Garcia, Assistant Regional Legal Counsel, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Farinas v. State, 569 So.2d 425, 429 (Fla. 1990) (holding: "Absent fundamental error, an issue will not be considered for the first time on appeal"); Millen v. Millen, 122 So.3d 496 (Fla. 3d DCA 2013) (same); Fla. Admin. Code § 65-2.046(1)(b) (providing that an appellant must exercise the right to appeal "within 90 calendar days" from the "date of the Department's written notification of denial or a request or other action which aggrieves the petitioner when that denial or action is other than an application decision or a decision to reduce or terminate program benefits").


author: EMAS, J.

text:
    HEMINGWAY VILLA CONDOMINIUM OWNERS ASSOCIATION, INC., Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D17-926
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018.
    Paul A. McKenna & Associates, P.A. and Andrew H. Braaksma, for appellant.
    Aldridge & Pite, LLP and Avri S. Ben-Hamo and Steven B. Greenfield (Boca Raton), for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Hemingway Villa Condominium Owners Association, Inc. ("the Association"), the defendant below, appeals from a final summary judgment entered in favor of Wells Fargo Bank, N.A., the plaintiff below. We affirm.

The lawsuit below stemmed from a foreclosure action filed against a unit owner in the Hemingway Villa Condominium. The foreclosure was filed by JP Morgan Chase Bank, the then-servicer and holder of the note, acting on behalf of the Federal National Mortgage Association ("Fannie Mae"), the owner of the loan in the foreclosure action. The Association was named as a defendant in the foreclosure action. Final judgment of foreclosure was later entered in favor of JP Morgan.

Fannie Mae was the successful bidder at the foreclosure sale, and took title to the unit. Shortly thereafter, Fannie Mae, through its subsequent servicer, Wells Fargo, sought to sell the unit and requested an estoppel certificate from the Association in order to determine the amount of unpaid assessments, and specifically sought the "Safe Harbor" amounts pursuant to section 718.116(1)(b)1., Florida Statutes (2017). The Association issued a letter in response, but failed to account for the Safe Harbor protection offered to first mortgagees under section 718.116(1)(b). When the Association refused to revise the estoppel certificate, Wells Fargo paid the assessment amounts under protest with a reservation of all rights, later determining that the payment was in excess of the assessments it was required to pay pursuant to the Safe Harbor provisions.

Wells Fargo then filed a complaint in circuit court which sought, inter alia, compliance with and entitlement to the Safe Harbor provisions of section 718.116(1)(b) and damages against the Association for unjust enrichment. Wells Fargo later moved for summary judgment, which was supported by affidavits, and asserted that Wells Fargo established all of the requisites for relief under the Safe Harbor provisions. Following a hearing, the trial court granted Wells Fargo's motion and entered final summary judgment in its favor. This appeal followed.

On appeal, the Association contends that summary judgment was improperly entered because there remained a disputed issue of material fact regarding who actually owned the loan, and asserts that, during the relevant time period in question, JP Morgan (and not Fannie Mae) owned the loan such that Fannie Mae was not entitled to safe harbor under section 718.116(1)(b).

Upon our de novo review, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), we hold that the trial court correctly determined no genuine issue of material fact existed; that Wells Fargo established Fannie Mae owned the loan at all relevant times from 2007 through the sale of the unit in 2013; and that all of the remaining requirements of section 718.116 had been met, entitling it to the Safe Harbor provisions.

We find the instant case indistinguishable on its relevant facts from our sister court's decision in Beltway Capital, LLC v. Greens COA, Inc., 153 So.3d 330 (Fla. 5th DCA 2014). We agree with Beltway's holding, applicable here, that, as the owner of first mortgage, Fannie Mae was the "first mortgagee" as required by the Safe Harbor provision, without regard to whether it was also an assignee. Id. at 333. The term "first mortgagee" "is simply one who holds the first mortgage, whether that be the original lender or a subsequent holder." Id. The trial court correctly entered final summary judgment in favor of Wells Fargo.

Affirmed.

      Section 718.116(1)(a), Florida Statutes (2017), makes a condominium unit owner liable not only for association assessments that come due while he or she is the owner, but also "jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title." However, subsection (1)(b), known as the "Safe Harbor" provision, provides a limitation to this joint and several liability for past unpaid assessments, capping the potential liability of a "first mortgagee or its successor or assignees." That subsection provides:
      The liability of a first mortgagee or its successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee's acquisition of title is limited to the lesser of:
      a. The unit's unpaid common expenses and regular periodic assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
      b. One percent of the original mortgage debt. The provisions of this paragraph apply only if the first mortgagee joined the association as a defendant in the foreclosure action. Joinder of the association is not required if, on the date the complaint is filed, the association was dissolved or did not maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee.

      The Association demanded payment of $22,411.13, but one percent of the original mortgage would amount to only $1,232.80, plus any assessments subsequent to Fannie Mae taking title.

      The Association's reliance on Bermuda Dunes Private Residences v. Bank of America, 133 So.3d 609 (Fla. 5th DCA 2014) is misplaced; the summary judgment in that case was reversed because, unlike the instant case, Bank of America failed to carry its burden of establishing no genuine issue of material fact existed:
      [A]lthough Bank of America argued below that it took title to the condominium unit through foreclosure as the first mortgagee based upon its assertion that it merely assigned to Federal Home Mortgage Corporation the right to service the mortgage, it did not carry its burden of presenting evidence of such. The assignment of mortgage simply reveals that Bank of America assigned the mortgage and note to Federal Home Mortgage Corporation, including all of the attendant rights and obligations. The key is who had rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or assignee. If that entity takes title to the condominium unit by the foreclosure, its liability for unpaid, past-due assessments is limited pursuant to section 718.116(1)(b) 1. Here, based upon the record evidence, the entity having rights and obligations under the mortgage at the time of foreclosure was Federal Home Loan Mortgage Corporation as assignee of the mortgage, not Bank of America. Although Bank of America took title to the condominium unit by foreclosure, the record does not show that it did so as first mortgagee.
      Id. at 615 (emphasis added).


author: SALTER, J.

text:
    Denis KELLY, Appellant, v. HSBC BANK USA NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D16-2830
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018
    Spittler & Associates, P.A., and John Spittler, Jr., for appellant.
    Leon Cosgrove, LLP, and Benjamin Weinberg and John Byrne and Carly A. Kligler, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Denis Kelly, mortgagor and plaintiff below, appeals orders: (1) vacating a final judgment initially obtained by him in the case below; (2) dismissing with prejudice his complaint to quiet title to his residence in Miami Beach, Florida; and (3) granting a motion to impose sanctions against him pursuant to section 57.105, Florida Statutes (2017). In his complaint, Kelly alleged that the mortgage he executed in 2005 was fully accelerated in April 2008 and had become invalid and unenforceable by virtue of the applicable statute of limitation.

For the reasons which follow, we affirm the order vacating the default final judgment initially obtained by Kelly and the order dismissing Kelly's complaint with prejudice. We dismiss as premature Kelly's appeal from the sanctions order.

Kelly initially obtained a final default judgment in 2014 against the mortgagee and defendant (appellee here), HSBC Bank USA National Association ("HSBC"). HSBC moved to vacate that judgment on the grounds that Kelly's complaint had not been properly served on HSBC. The parties briefed and argued that motion to the trial court, which granted the motion and vacated the default judgment in 2015. We find no merit whatsoever in Kelly's argument that HSBC's motion to vacate should have been denied. The improperly-served complaint rendered the default final judgment void. Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So.2d 758 (Fla. 3d DCA 1986).

In 2016, HSBC moved to dismiss Kelly's complaint to quiet title. By that time, Kelly's legal theory regarding acceleration and unenforceability of HSBC's mortgage (by virtue of the bar of the statute of limitations) had been definitively rejected by the Supreme Court of Florida and by this Court. Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016) ; Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016). The trial court correctly dismissed Kelly's complaint with prejudice on the basis of those decisions.

We dismiss the attempt to appeal the order granting in part HSBC's motion for sanctions, because the order only addressed entitlement and not the amount of attorney's fees to be imposed against Kelly. That attempt was premature, and the order on entitlement to sanctions was not an appealable order. HSBC Bank USA, Nat'l Ass'n for Fremont Home Loan Tr. 2005-B, Mortgage-Backed Certificates, Series 2005-B v. Buset, 216 So.3d 701, 704 (Fla. 3d DCA 2017).

Affirmed as to the orders vacating the final default judgment against HSBC and dismissing Kelly's complaint with prejudice; dismissed as to the premature appeal from the order determining HSBC's entitlement to sanctions.

      The order on sanctions ruled on entitlement, but did not fix the amount of attorney's fees to be awarded.


author: FERNANDEZ, J.

text:
    FLORIDA CAPITAL GROUP, INC., Appellant, v. Bart S. BISHOP, Appellee.
    No. 3D16-1775
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018
    Akerman LLP, Kristen M. Fiore (Tallahassee) and Christopher S. Duke (West Palm Beach), for appellant.
    Damian & Valori, LLP, Melanie E. Damian, Mary Claire Espenkotter and Allison J. Leonard, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

Florida Capital Group, Inc. appeals the trial court's order granting Bart S. Bishop's motion to vacate dismissal and entry of the final judgment confirming payment of Bishop's severance package awarded in arbitration. Because the final judgment does not include the condition of approval contained in the arbitration award, we reverse the final judgment. We affirm the vacatur of the dismissal order without further discussion.

Pursuant to an arbitration agreement, Florida Capital, a bank holding company, and Bishop, a former executive of Florida Capital, submitted a dispute to the American Arbitration Association ("AAA") regarding Bishop's severance payment. The parties stipulated that the severance payment constituted a "golden parachute payment," as Florida Capital was deemed to be in a "troubled condition." See 12 C.F.R. § 359.1(f) (2011). AAA awarded payment of Bishop's severance, conditioned on Florida Capital obtaining the necessary approval from the Office of the Comptroller of the Currency ("OCC") and the Federal Deposit Insurance Corporation ("FDIC"). See 12 C.F.R. § 359.4 (2011).

Upon motion to confirm and enforce the arbitration award, the trial court entered the final judgment confirming payment but did not include the condition of approval. Because the trial court did not modify or correct the award pursuant to section 682.10 or section 682.14, Florida Statutes, or vacate the award pursuant to section 682.13, Florida Statutes, see § 682.12, Fla. Stat. (2016), it was required to "confirm the award as made," see § 682.14(2), Fla. Stat. (2016).

Accordingly, we reverse the final judgment and remand to the trial court with instructions to enter final judgment in conformity with the award as made; i.e., condition payment upon required approval from the OCC and the FDIC.

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

      On or about March 26, 2009, the OCC determined that Florida Capital was in a "troubled condition," as is defined by section 303.101(c), Code of Federal Regulations. This designation requires approval of the OCC and the FDIC before a golden parachute payment may be made.


text:
    J.S., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D17-2424
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018.
    Law Offices of Roger Ally, P.A., and Roger Ally, for appellant.
    Dickinson & Gibbons, P.A., and Jesse R. Butler (Sarasota); Thomasina Moore and Laura J. Lee (Sanford), for the Guardian ad Litem Program; Karla F. Perkins, for the Department of Children and Families.
    Before SUAREZ, SCALES and LUCK, JJ.
   PER CURIAM.

We affirm the trial court's October 10, 2017 dependency order because the trial court's findings are supported by competent, substantial evidence. D.A. v. Dep't of Children & Family Servs., 84 So.3d 1136, 1138 (Fla. 3d DCA 2012) ("[A] trial court's determination of dependency is a mixed question of law and fact, which will be upheld on appeal if the trial court applied the correct law and its ruling is supported by competent substantial evidence."). While it does appear that, in June 2016, the trial court transferred this case to the circuit court in Volusia County, see Fla. R. Juv. P. 8.205(b), the trial court docket and the court minutes reflect that the case was transferred back to the Miami-Dade County circuit court in November 2016, and that appellant waived any argument that the case was not properly retransferred to the Miami-Dade trial court when he, on several occasions, sought affirmative relief in the lower court. D.M. v. J.D.M. ex rel. C.F., 814 So.2d 1112, 1115-16 (Fla. 4th DCA 2002) (equating a rule 8.205(b) motion to transfer a dependency case with a motion to transfer venue); cf. Fixel v. Clevenger, 285 So.2d 687, 688 (Fla. 3d DCA 1973) ("[T]he venue objection may be waived and if not timely or sufficiently asserted defendant must bear the consequences.").

Affirmed.


author: SCALES, J.

text:
    James C. MARSHALL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1605
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General, for respondent.
    Before LOGUE, SCALES and LINDSEY, JJ.
   SCALES, J.

James Marshall petitions this Court for a writ of habeas corpus pursuant to Florida Rule of Appellate Procedure 9.141(d), claiming that he is entitled to a new trial on the charge of second degree murder based on ineffective assistance of appellate counsel. Specifically, Marshall argues that appellate counsel failed to file a supplemental brief in his direct appeal citing to Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) ( Montgomery I ), which held that giving the then standard jury instruction for manslaughter by act constituted fundamental error, effectively denying him the opportunity to be placed in the Montgomery pipeline. Though this Court previously denied Marshall's first petition raising this same ground, for the following reasons, we grant the instant, successive petition based on the manifest injustice doctrine and remand for a new trial.

1. Underlying Facts and Procedural Background

The State charged Marshall by information with second degree murder for strangling the victim, Marie Sanders, to death on April 2, 2004. The case proceeded to trial on November 14, 2006. Eyewitness testimony at trial established that Marshall accosted the victim in her bed while she was sleeping. When the victim fell backwards off the bed during the ensuing struggle, Marshall straddled the victim-who by then was lying face down on the floor-and proceeded to choke her for at least four minutes. During this time, Marshall resisted attempts by the victim and two bystanders who tried to stop him. Marshall's attack continued despite one of the bystanders actually hitting Marshall with a kitchen pan. Marshall even continued to choke the victim after the police arrived at the scene with guns drawn. Paramedics attempted to revive the victim, but she died at the scene.

At the close of all the evidence, after instructing the jury of the elements of second degree murder, the trial court instructed the jury, without objection, as to the lesser included offenses of manslaughter by act and manslaughter by culpable negligence, giving the then standard jury instructions as to those crimes. The jury found Marshall guilty of second degree murder as charged. The trial court adjudicated Marshall guilty of second degree murder and, on December 26, 2006, sentenced Marshall to forty-five years in prison.

Marshall, through counsel, appealed his conviction. On direct appeal, Marshall did not challenge the validity of the manslaughter by act jury instruction that had been given at trial. This Court affirmed his conviction with a written opinion issued on July 22, 2009. See Marshall v. State, 15 So.3d 811 (Fla. 3d DCA 2009). This Court's mandate issued on August 7, 2009. Marshall thereafter filed a pro se petition for belated discretionary review in the Florida Supreme Court, but voluntarily dismissed that petition on November 5, 2009. See Marshall v. State, 22 So.3d 538 (Fla. 2009) (table).

2. The Postconviction Proceedings

a. Montgomery I and Montgomery II

On February 12, 2009, while Marshall's direct appeal was still pending in this Court, the First District issued its opinion in Montgomery I. In Montgomery I, our sister court found that the trial court had fundamentally erred in giving the then standard jury instruction for manslaughter by act because the instruction erroneously suggested that intent to kill was an element of that crime. 70 So.3d at 608. The Montgomery I court ordered a new trial for Montgomery, but certified the issue to the Florida Supreme Court as one of great public importance. Id. The Florida Supreme Court accepted jurisdiction of Montgomery I's certified question on May 7, 2009, again, while Marshall's direct appeal was still pending in this Court; yet, Marshall's appointed appellate counsel did not notify this Court of either the Montgomery I decision, or that the Florida Supreme Court had accepted jurisdiction to answer the question certified in Montgomery I.

On April 8, 2010, the Florida Supreme Court approved the First District's decision in Montgomery I"to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error." State v. Montgomery, 39 So.3d 252, 260 (Fla. 2010) (" Montgomery II").

b. Marshall's Rule 3.850 motion

While the record is unclear as to exactly when, Marshall notified his appellate counsel of the Montgomery proceedings. On May 21, 2010, Marshall's appellate counsel sent Marshall a letter that acknowledged counsel's oversight. Attached to counsel's letter was a draft Florida Rule of Criminal Procedure Rule 3.850 postconviction motion alleging ineffective assistance of both trial counsel and appellate counsel, for Marshall to file pro se . That postconviction motion alleged that (i) Marshall's trial counsel had been ineffective for failing to object the manslaughter by act jury instruction at trial, and (ii) Marshall's appellate counsel had been ineffective for failing to file a supplemental brief in Marshall's direct appeal, missing the opportunity to place Marshall in the Montgomery pipeline. Counsel's letter to Marshall also contained an affidavit signed by counsel in which counsel averred, in relevant part, "I was ineffective as appellate counsel by failing to recognize the error committed by the trial court and thus deprived the defendant/petitioner of effective assistance of counsel on appeal, in violation of his Sixth Amendment rights, and I therefore join in the defendant/petitioner's motion for the relief requested therein."

In June 2010, Marshall filed in the lower court his pro se rule 3.850 motion and accompanying affidavit, both of which had been prepared by his appellate counsel. The trial court denied Marshall's pro se rule 3.850 motion, and this Court, without elaboration, affirmed the trial court's denial of Marshall's rule 3.850 motion. Marshall v. State, 56 So.3d 11 (Fla. 3d DCA 2011) (table).

c. Marshall's Rule 9.141(d) Petitions Alleging Ineffective Assistance of Appellate Counsel and Haygood I and Haygood II

In February 2011, Marshall timely filed with this Court his first pro se rule 9.141(d) petition. Marshall's petition alleged (as did his improper rule 3.850 motion) that his appellate counsel had been ineffective for failing to file anything with this Court during the pendency of Marshall's direct appeal notifying this Court of the proceedings in Montgomery I. Marshall's petition alleged that appellate counsel's ineffectiveness in this regard caused Marshall to miss an opportunity to be placed in the Montgomery pipeline, and thereafter to obtain relief under Montgomery II.

While this petition was still pending, Marshall filed a notice of supplemental authority and moved to stay this Court's consideration of his petition pending resolution by the Florida Supreme Court of a question certified to it by our sister court in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011) (" Haygood I"). The question certified in Haygood I was whether, in light of the Supreme Court's pronouncements in Montgomery II, the trial court committed fundamental error by giving the flawed manslaughter by act jury instruction where the standard jury instruction for manslaughter by culpable negligence was also given, despite there being no evidence to support a theory of manslaughter by culpable negligence. Id. at 1038. The Second District found that there was no fundamental error under these circumstances. At the time, the law in this District was similar to the law in the Second District: any harm from giving the improper manslaughter by act instruction was alleviated if the trial court also gave the jury the manslaughter by culpable negligence instruction. See Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (distinguishing Montgomery II ) (" Cubelo I").

The Florida Supreme Court accepted jurisdiction of Haygood I on May 5, 2011. This Court, however, did not grant Marshall's stay motion. Instead, on July 20, 2011, this Court, without elaboration, summarily denied Marshall's rule 9.141(d) petition and denied Marshall's motion for rehearing that also cited to Haygood I.See Marshall v. State, 75 So.3d 286 (Fla. 3d DCA 2011) (table).

On February 13, 2013, the Florida Supreme Court answered the question certified to it in Haygood I, ultimately holding that "giving the erroneous manslaughter by act instruction, which we found to be fundamental error in [ Montgomery II ] is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder." Haygood v. State, 109 So.3d 735, 736 (Fla. 2013) (footnote omitted) (" Haygood II"). Haygood II held that where (i) the erroneous manslaughter by act instruction is given, (ii) the defendant is convicted of a crime not more than one step removed from manslaughter (such as second degree murder), and (iii) the evidence supports a finding of manslaughter by act, but not a finding of manslaughter by culpable negligence, the defendant is entitled to a new trial even if the jury is correctly instructed on manslaughter by culpable negligence. Id. at 743.

d. Marshall's Instant Habeas Corpus Petition Alleging Manifest Injustice

On July 14, 2017, Marshall filed the instant, pro se "Successive Petition for Writ of Habeas Corpus," once again arguing ineffective assistance of appellate counsel with respect to appellate counsel's missing an opportunity to put Marshall in the Montgomery pipeline. Acknowledging that the instant petition is successive, Marshall additionally argues that it would be a manifest injustice not to grant it.

After ordering the State to respond to Marshall's pro se motion, this Court appointed the public defender to represent Marshall, permitted the parties to file supplemental briefs, and set Marshall's petition for oral argument.

3. Analysis

In addressing the instant petition for writ of habeas corpus, we consider: (1) whether giving the faulty manslaughter by act instruction in this case was fundamental error, even where the culpable negligence instruction was also given; (2) if so, whether appellate counsel was ineffective in failing to bring to this Court's attention Montgomery I while Marshall's direct appeal was still pending; and (3) if so, whether the doctrine of manifest injustice allows this Court to rectify its earlier error of denying Marshall's prior petitions that raised these same issues.

a. Fundamental Error under Haygood II

As a preliminary issue, we must first decide whether Marshall has even made a meritorious claim. We find that he has done so.

It is now well-settled that the then standard jury instruction for manslaughter by act that was given at Marshall's trial erroneously required the jury to find that Marshall intended to kill the victim in order to find Marshall guilty of that crime. Montgomery II, 39 So.3d at 256. It is also now well-settled that giving the standard jury instruction for manslaughter by culpable negligence does not cure the error of giving the faulty manslaughter by act instruction, where there is no evidence from which the jury could have concluded that the victim was killed due to the defendant's culpable negligence. Haygood II, 109 So.3d at 743.

Here, the evidence introduced at trial was that Marshall choked the victim to death over a period of at least four minutes, resisting attempts by the victim, two bystanders, and the police to stop him. On these facts, we agree with Marshall that the evidence in this case "does not reasonably support a finding that [the victim's] death occurred due to culpable negligence of the defendant." Id. at 741 (finding the culpable negligence instruction was not warranted where the defendant head-butted, choked and elbowed the victim, causing subdural bleeding and leading to eventual death); Kerney v. State, 217 So.3d 138, 143 n.4 (Fla. 3d DCA 2017) (finding the evidence introduced at trial that the defendant strangled the victim to death did not reasonably support a finding that the victim's death occurred due to culpable negligence). Therefore, because Marshall was convicted of second degree murder-an offense that is not more than one step removed from the lesser offense of manslaughter-and because there was no evidence from which a jury could have reasonably concluded that the victim died due to Marshall's culpable negligence, giving the culpable negligence instruction in this case did not "cure the fundamental error in giving the erroneous manslaughter by act instruction." Haygood II, 109 So.3d at 743. We have little difficulty concluding that giving the jury the erroneous manslaughter by act instruction in this case constituted fundamental error.

b. Ineffective Assistance of Appellate Counsel on Direct Appeal

We next address whether appellate counsel was ineffective for failing to file a supplemental brief in Marshall's direct appeal citing to Montgomery I. The test for ineffective assistance of appellate counsel is whether: (i) the petitioner establishes that appellate counsel's performance was deficient; and (ii) that such deficient performance so prejudiced the petitioner as to undermine confidence in the result of the appeal. See Rutherford v. Moore, 774 So.2d 637, 643 n.4 (Fla. 2000) (citing to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), finding that the standard for ineffective assistance of appellate counsel parallels the standard for ineffective assistance of trial counsel). For the following reasons, we find that Marshall's appellate counsel was deficient.

At the time Marshall filed the direct appeal of his judgment and sentence for second degree murder, no Florida appellate court had held that the then standard instruction for manslaughter by act was erroneous, nor that giving the erroneous instruction constituted fundamental error. While Marshall's appeal was still pending, however, the First District issued its opinion in Montgomery I, holding that the instruction was fundamentally erroneous. Had Marshall's appellate counsel timely filed a supplemental brief citing to Montgomery I, this Court would have then either (i) followed Montgomery I, (ii) declined to follow Montgomery I, citing conflict with Montgomery I, or (iii) distinguished Montgomery I on the ground that the manslaughter by culpable negligence instruction had been given. In either event, irrespective of this Court's actual adjudication of the issue, this Court's citation to Montgomery I would have placed Marshall in the Montgomery pipeline. See Nieves v. State, 22 So.3d 691 (Fla. 2d DCA 2009) (" Nieves I").

We need not speculate as to what would have happened had Marshall been placed in the Montgomery pipeline, as we find that the procedural and substantive history of the Second District's Nieves case is particularly instructive on this issue. In that case, Nieves appealed his conviction and sentence for second degree murder, claiming that the trial court committed fundamental error by giving the then standard jury instruction for the lesser included offense of manslaughter by act. Id. at 692. Nieves relied upon Montgomery I, which was then pending review before the Florida Supreme Court, to support his claim. The Second District affirmed Nieves's conviction and sentence, certifying conflict with Montgomery I based on a recent, prior opinion of that Court which had found that the instruction was not fundamentally erroneous, and distinguishing Montgomery I on the basis that the jury had also been instructed on manslaughter by culpable negligence. Id. (citing Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009) ).

Nieves then sought review before the Florida Supreme Court, which, according to the Florida Supreme Court Case Docket, then stayed the Nieves proceeding pending the Court's disposition of Montgomery II. After the Florida Supreme Court issued its opinion in Montgomery II, the Court then issued an order to show cause why the Second District's Nieves I decision should not be quashed and remanded for reconsideration in light of Montgomery II. Before the Florida Supreme Court took any action on the show cause order, however, the Second District issued its opinion in Haygood I. The Florida Supreme Court then stayed the Nieves proceeding pending the Court's disposition of Haygood II.

The Florida Supreme Court Case Docket reflects that after the Florida Supreme Court issued its opinion in Haygood II, the Court issued an order to show cause why the Second District's Nieves I decision should not be quashed and remanded for reconsideration upon application of Haygood II. On February 17, 2014, the Florida Supreme Court issued an opinion granting review in the Nieves proceeding, quashing the Second District's Nieves I decision, and remanding for reconsideration in light of Haygood II.See Nieves v. State, 137 So.3d 1021 (Fla. 2014) (table) (" Nieves II").

On remand from Nieves II, the Second District once again affirmed Nieves's conviction and sentence for second degree murder, this time finding that giving the erroneous manslaughter by act instruction was not fundamental error on a separate basis not at issue here. See Nieves v. State, 144 So.3d 649, 650 (Fla. 2d DCA 2014) (" Nieves III"). The Florida Supreme Court then once again granted review, quashing the Second District's Nieves III decision, and remanding for reconsideration upon application of a recent Florida Supreme Court decision on the unrelated issue. See Nieves v. State, 177 So.3d 1269 (Fla. 2015) (table) (" Nieves IV"). On remand from Nieves IV, the Second District finally granted Nieves relief, finding that because "the jury instruction for manslaughter by act given in this case did indeed constitute fundamental error, ... we must reverse and remand for a new trial." Nieves v. State, 184 So.3d 1148 (Fla. 2d DCA 2015) (" Nieves V").

As the Nieves cases demonstrate, had Marshall been placed in the Montgomery pipeline when this Court affirmed his conviction and sentence for second degree murder on direct appeal, we find it extremely likely, if not virtually certain, that Marshall ultimately would have been granted the new trial that he now seeks in his instant petition. We therefore find that appellate counsel was ineffective for failing to file, during the pendency of Marshall's direct appeal, a supplemental brief in this Court citing to Montgomery I, and that such deficient performance so prejudiced Marshall as to undermine confidence in the result of the appeal.

c. The Manifest Injustice Doctrine

Finally, we must adjudicate whether appellate counsel's deficiency, raised in Marshall's instant successive petition, implicates the manifest injustice doctrine. Generally, successive rule 9.141 habeas petitions alleging the exact same issues as previously adjudicated are unauthorized. Xiques v. Dugger, 571 So.2d 3, 4 (Fla. 2d DCA 1990) ("A successive petition regarding ineffective appellate counsel, much like a successive motion under Florida Rule of Criminal Procedure 3.850, may be summarily denied."). The manifest injustice doctrine, however, provides a very limited exception to this general rule. Johnson v. State, 226 So.3d 908, 910 (Fla. 4th DCA 2017) (finding that rule 9.141 habeas corpus "[r]elief may be granted even on a successive petition or claim where failing to do so would result in manifest injustice"). Indeed, "appellate courts have 'the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.' " State v. Akins, 69 So.3d 261, 268 (Fla. 2011) (alteration in original) (quoting Muehleman v. State, 3 So.3d 1149, 1165 (Fla. 2009) ).

At the time Marshall filed his first, timely rule 9.141(d) petition alleging ineffective assistance of appellate counsel on direct appeal, this Court had held that giving the erroneous manslaughter by act instruction was not fundamental error when, as here, the jury was also instructed on manslaughter by culpable negligence. See Cubelo I, 41 So.3d at 267-68. While Marshall's first petition was still pending, however, the Second District issued Haygood I and the Florida Supreme Court accepted jurisdiction in that case. Had this Court either (i) granted Marshall's motion to stay this Court's consideration of Marshall's petition pending the Florida Supreme Court's disposition in Haygood II, or (ii) denied Marshall's petition with an opinion or citation to this Court's Cubelo I decision, Marshall could have sought and obtained relief from the Florida Supreme Court. See Cubelo v. State, 137 So.3d 1019 (Fla. 2014) (table) (quashing Cubelo I, and remanding for reconsideration in light of Haygood II ) (" Cubelo II") ; see also Cubelo v. State, 137 So.3d 1193 (Fla. 3d DCA 2014) (reversing the defendant's conviction and sentence for second degree murder under Haygood II, and remanding for a new trial, upon remand from Florida Supreme Court) (" Cubelo III").

Under similar factual and procedural circumstances, our sister courts have granted successive rule 9.141(d) petitions under the manifest injustice doctrine, when, as here, the failure of appellate counsel to notify the appellate court of Montgomery proceedings resulted in the petitioner not being placed in the Montgomery pipeline. See Wardlow v. State, 212 So.3d 1091, 1094 (Fla. 2d DCA 2017) (granting the defendant's successive rule 9.141 petition under Haygood II based on the manifest injustice doctrine); Page v. State, 201 So.3d 207, 209 (Fla. 5th DCA 2016) (granting habeas corpus relief under Haygood II based on the manifest injustice doctrine where the appellate court had previously granted habeas corpus relief to similarly situated defendants, and where the appellate court had previously dismissed Page's prior ineffective assistance of appellate counsel claim without elaboration).

As the Second District explained in Wardlow:

At the time Mr. Wardlow filed his [first] petition, this court had not held that the then-standard jury instruction constituted fundamental error, and even after the supreme court's Montgomery [II] opinion issued, this court held that the error in the standard instruction was not fundamental when, as in Mr. Wardlow's case, the jury was also instructed on manslaughter by culpable negligence. However, had this court denied Mr. Wardlow's [first] petition with an opinion or a citation, Mr. Wardlow could have sought and obtained relief from the Florida Supreme Court.
... In order to avoid manifest injustice, both the Fourth and Fifth Districts have granted new trials to petitioners after denying without citation or explanation ineffective assistance of appellate counsel claims based on the failure to argue the fundamental error explained in Montgomery. Because we conclude that to deny Mr. Wardlow relief under these circumstances would result in a manifest injustice, we grant Mr. Wardlow relief.
Mr. Wardlow has established that the denial of his [first] petition filed under rule 9.141(c)[ ] without written opinion or citations is an incongruous and unfair result.

Wardlow, 212 So.3d at 1093-94 (citations omitted).

Consistent with the decisions of our sister courts based on virtually identical fact patterns, we grant the instant petition because denying Marshall relief in this case, under these highly individualized circumstances, would be manifestly unjust.

4. Conclusion

Because it would result in a manifest injustice to deny Marshall relief under the particular factual and procedural circumstances of this case, we grant the instant petition, vacate the judgment and sentence for second degree murder, and remand for a new trial.

Petition granted.

      See Marshall v. State, 75 So.3d 286 (Fla. 3d DCA 2011) (table).

      The trial transcripts reflect that the prosecutor did not make manslaughter by culpable negligence a focus of closing argument.

      Specifically, the trial court found that Marshall's trial counsel was not ineffective for failing to anticipate Montgomery I, and that Marshall's ineffective assistance of appellate counsel claim was not cognizable in a rule 3.850 motion.
      We note here the not-so-insignificant appellate rule governing the proper procedural mechanism for alleging ineffective assistance of appellate counsel: Florida Rule of Appellate Procedure 9.141(d) provides that such a claim be filed in, and treated by, the appellate court as an original proceeding. The rule outlines the specific procedures, mechanism, and requirements for such an allegation. A rule 3.850 motion filed in the trial court is not the appropriate mechanism for a defendant to assert the ineffective performance of appellate counsel. Knight v. State, 394 So.2d 997, 999 (Fla. 1981) ("[S]ince petitioner's claim for relief is predicated on the assertion of ineffective assistance of appellate counsel, such relief can only be granted by habeas corpus in the appellate court ....") (emphasis added).

      See Fla. R. App. P. 9.141(d)(5) ("A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.").

      On or about September 26, 2011, in case number 3D11-2467, Marshall filed his second rule 9.141(d) petition with this Court alleging ineffective assistance of appellate counsel. Though not entirely clear on the record before us, the parties agree that this second petition raised the same ineffective assistance of appellate counsel issue that he raised in his first petition. This Court entered a clerk's order denying the second petition on December 22, 2011.

      Because this Court had yet to address this issue in a written opinion at the time Marshall's direct appeal was pending, it is possible that the panel considering his direct appeal would have agreed with Montgomery I, in which case Marshall would have been granted immediate relief.

      The State argues that appellate counsel cannot be ineffective for failing to predict future changes in the legal landscape that occur years after a defendant's sentence and conviction become final. While we generally agree with this premise, as Nieves demonstrates, this is not such a case.

      In so holding, the Akins court expressly rejected the State's contention that the law of the case doctrine barred the district court from granting a successive claim. Akins, 69 So.3d at 268 ; see also Coleman v. State, 128 So.3d 193, 194 (Fla. 5th DCA 2013) (rejecting the State's argument that the law of the case doctrine barred the appellate court from reconsidering its prior denial of a habeas petition alleging ineffective assistance of appellate counsel, citing Akins ).

      Rule 9.141(c) has been renumbered to rule 9.141(d).


author: LAMBERT, J.

text:
    NORTHPORT HEALTH SERVICES OF FLORIDA, LLC d/b/a West Melbourne Health and Rehabilitation Center, Appellant, v. Rosiette LOUIS, as Personal Representative of the Estate of Elienne Philistin, Appellee.
    Case No. 5D17-335
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    Lissette M. Gonzalez and Scott A. Cole, of Cole, Scott & Kissane, P.A., Miami, for Appellant.
    Douglas F. Eaton, of Eaton & Wolk, PL, Miami, for Appellee.
   LAMBERT, J.

Northport Health Services of Florida, LLC d/b/a West Melbourne Health and Rehabilitation Center ("Northport") appeals a non-final order denying its motion to compel arbitration. The trial court found the parties' arbitration agreement to be "vague, confusing and conflicting" and that it was unenforceable for being void as against public policy because it limited the ability of the Appellee, Rosiette Louis, as personal representative of the Estate of Elienne Philistin ("Estate") to recover damages and increased her evidentiary burden of proof. We reverse and remand to the trial court to sever the provision in the arbitration agreement that requires the application of Alabama law to the admissibility of evidence at the arbitration hearing.

Elienne Philistin was admitted to the West Melbourne Health and Rehabilitation Center on August 7, 2015, and resided there until she died on September 25, 2015. On the date of her admission, Philistin's daughter, Rosiette Louis, with power of attorney on behalf of her mother, executed an admission agreement that contained the arbitration agreement before the court in which the parties agreed to resolve any disputes between them by binding arbitration and specifically waived the right to have any dispute resolved in a court of law before a judge or jury.

Estate filed suit against Northport alleging that Northport's failure to comply with its statutory duties under the Florida Nursing Home Resident's Rights Act ("Act") was the proximate cause of Philistin's wrongful death. Northport moved to compel arbitration. Estate responded by asserting that the agreement to arbitrate was void and unenforceable for two reasons. First, while acknowledging that the agreement expressly required the arbitrator to apply Florida's substantive law, its law of remedies, and the evidentiary burden of proof applicable in Florida in these types of cases, Estate nevertheless contended that a separate provision contained in paragraph 8 of the arbitration agreement, stating that the admissibility of evidence at the arbitration hearing shall be determined in accordance with the Alabama Rules of Evidence, improperly limited its ability to recover compensatory damages because only punitive damages are recoverable in wrongful death claims in Alabama. See Ala. Power Co. v. Turner , 575 So.2d 551 (Ala. 1991). Second, Estate argued that another provision within the same paragraph required the application of the Alabama Rules of Civil Procedure to all pre-hearing discovery, which Estate asserted improperly limited it to discovery of only those negligent acts or omissions that it was able to identify at the outset of the lawsuit. The trial court granted Estate's motion, finding that the arbitration agreement violated public policy and was void because it limits Estate's ability to recover all available damages and also increased its evidentiary burden of proof. The court also ruled that these two provisions in paragraph 8 of the arbitration agreement were not severable from the rest of the agreement "because it will create more confusion among arbitrators regarding applicable procedures and evidence rules."

The standard of review of a trial court's order on a motion to compel arbitration is de novo. See Laizure v. Avante at Leesburg, Inc. , 44 So.3d 1254, 1256 (Fla. 5th DCA 2010). Additionally, "a] trial court's decision regarding whether an arbitration agreement or provision is void as against public policy presents 'a pure question of law, subject to de novo review.' " Fi-Evergreen Woods, LLC v. Estate of Vrastil , 118 So.3d 859, 862 (Fla. 5th DCA 2013) (quoting Shotts v. OP Winter Haven, Inc. , 86 So.3d 456, 471 (Fla. 2011) ).

The public policy of the Florida Nursing Home Resident's Rights Act is to provide rights for, and to protect, nursing home residents. Shotts , 86 So.3d at 474. Under the Act, a resident may recover actual and punitive damages for the violation of these rights or for negligence, § 400.023(1)(c), Fla. Stat. (2016), and there are no caps for pain and suffering damages. Here, while the arbitration agreement specifically provides that the arbitrator apply Florida substantive law, including its law of remedies, which allow for an award of both compensatory and punitive damages, the application of the Alabama Rules of Evidence under the arbitration agreement may preclude Estate from presenting evidence at the arbitration hearing as to its compensatory damages, contrary to the remedial purpose of the Act.

Northport reminds the court that in Hancock v. Northport Health Services of Florida, LLC , 150 So.3d 1262 (Fla. 5th DCA 2014), we affirmed an order compelling arbitration, determining that these identical arbitration provisions in the arbitration agreement did not limit a resident's available remedies under the Act and that no convincing argument was made as to why the application of Alabama's procedural rules would be problematic. 150 So.3d at 1263. Estate responds that Hancock is not dispositive because the appellant there did not raise the specific argument being raised here as to the unenforceability of the agreement. Northport alternatively asserts that the arbitration agreement contains a severability clause providing that in the event any provision of the agreement is held to be unenforceable for any reason, the remainder of the agreement "shall remain in full force and effect and shall be enforceable in accordance with its terms."

A "contract is severable where ... with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other." Shotts , 86 So.3d at 475 (quoting Local No. 234 of United Ass'n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Can. v. Henley & Beckwith, Inc. , 66 So.2d 818, 821-22 (Fla. 1953) ). The dispositive issue of whether a void clause or clauses invalidate the entire arbitration agreement is whether the offending clause goes to "the very essence of the agreement." Rockledge NH, LLC v. Miley By & Through Miley, 219 So.3d 246, 248 (Fla. 5th DCA 2017) (quoting Shotts , 86 So.3d at 478 ).

Estate is correct that the appellant in Hancock did not raise the specific argument being made here. Nevertheless, we conclude that the provision of the arbitration agreement requiring application of the Alabama Rules of Evidence at the arbitration hearing is severable because it concerns procedure and not the substantive law or remedies under Florida law to which the parties specifically agreed. Thus, this provision does not go to the "very essence" of the arbitration agreement. Lastly, we again hold, as we did in Hancock , that no convincing argument has been raised as to why the application of the Alabama Rules of Civil Procedure to the parties' conduct of pre-hearing discovery is problematic. Accordingly, we hold that the trial court erred in denying the motion to compel arbitration.

REVERSED and REMANDED with directions that the trial court grant Northport's motion to compel and sever from the arbitration agreement the provision applying the Alabama Rules of Evidence to the admissibility of evidence at the arbitration hearing.

COHEN, C.J. and EISNAUGLE, J., concur.

      We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).

      Neither party disputes the validity of the power of attorney or that Louis properly exercised her authority on behalf of her mother.

      The Act is codified at sections 400.022-.0238, Florida Statutes.

      The agreement requires the arbitrator to "apply the substantive law (and the law of remedies, if applicable) of the State in which the facility is located." The facility is located in Florida.


author: Per Curiam.

text:
    Tommy J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5284
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied April 17, 2018
    Tommy J. Thompson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying postconviction relief rendered by filing with the clerk of the lower tribunal on October 27, 2017. Fla. R. App. P. 9.020(i). The notice of appeal, filed on November 29, 2017, failed to invoke the Court's jurisdiction in a timely manner. Fla. R. App. P. 9.140(b)(3). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Ray, Bilbrey, and Winokur, JJ., concur.


author: SILBERMAN, Judge.

text:
    Jamie C. PATTERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3046
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018
    Jamie C. Patterson, pro se.
   SILBERMAN, Judge.

Jamie C. Patterson seeks review of the order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He raised one claim of newly discovered evidence. We reverse and remand with directions for the postconviction court to afford Mr. Patterson leave to amend.

In 1998, a jury found Mr. Patterson guilty of first-degree murder. He filed a direct appeal, which this court per curiam affirmed. See Patterson v. State, 768 So.2d 1081 (Fla. 2d DCA 2000) (table decision). He filed this postconviction motion on June 15, 2017, alleging that a newly discovered witness would testify that she had witnessed the offense for which Mr. Patterson was convicted and that he was not the person who committed the crime.

The postconviction court denied the motion based on several deficiencies. The motion failed to include either a notarized oath or an acknowledgement that his oath was signed under penalty of perjury, and the affidavit attached to the motion was legally insufficient in that it was neither notarized nor contained an attestation that the affidavit was signed under penalty of perjury. See Fla. R. Crim. P. 3.850(c) (governing the contents of a rule 3.850 motion). Further, Mr. Patterson failed to allege that the evidence was unknown to the trial court, counsel, or Mr. Patterson at the time of trial, that he or counsel could not have known of the evidence by the use of due diligence, and that the nature of the evidence would probably produce an acquittal. See Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (discussing requirements for establishing newly discovered evidence); Wilson v. State, 202 So.3d 135, 136-37 (Fla. 2d DCA 2016) (discussing sufficiency of a new witness's affidavit).

"When a postconviction court summarily denies a defendant's motion without an evidentiary hearing, an appellate court 'must accept a defendant's factual allegations as true to the extent they are not refuted by the record.' " Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) ). Furthermore, "when a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion," provided that the defendant can do so in good faith and that the claims are not conclusively refuted by the record. Spera v. State, 971 So.2d 754, 761-62 (Fla. 2007).

Although the postconviction court properly determined that Mr. Patterson's motion and the affidavits attached thereto were facially insufficient, it should have provided Mr. Patterson an opportunity to amend. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."); Blake v. State, 152 So.3d 66, 68 (Fla. 2d DCA 2014) ; Hatton v. State, 114 So.3d 1090, 1090 (Fla. 2d DCA 2013).

Accordingly, we reverse and remand with directions to strike Mr. Patterson's motion and to grant him sixty days to file an amended motion under Spera.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      We also note that Mr. Patterson's motion entirely lacks a signature and the certification required by rule 3.850(n)(2).


text:
    Edelio PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2874
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for appellant.
    Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
   PER CURIAM.

Edelio Perez appeals from the trial court's order denying his motion for postconviction relief. We reverse and remand for reconsideration of Perez's motion in light of the standard established by the Florida Supreme Court in Long v. State, 183 So.3d 342 (Fla. 2016).

In 1997, Perez was charged in a two-count information with committing a lewd and lascivious act upon each of his two stepdaughters (who were six and seven years old at the time). In 1998, pursuant to a negotiated plea, Perez pleaded nolo contendere to the charges and, in exchange for his plea, was placed on ten years' probation with early termination after five years. Perez successfully completed his probation.

In 2015, Perez filed a motion for postconviction relief. In that motion, Perez sought to set aside his judgment and sentence and withdraw his previously-entered plea, based upon newly-discovered evidence. The newly-discovered evidence consisted of affidavits from the two victims in which each of them averred that they lied when they accused Perez of molesting them, and recanted their prior statements and testimony against Perez. The State filed a response to Perez's motion and, in advance of an evidentiary hearing, deposed each of the stepdaughters.

The trial court held an evidentiary hearing. At the hearing, both stepdaughters testified, as did the forensic interviewer who conducted the videotaped interview of the stepdaughters when the incidents were initially reported. The videotapes of those interviews were also introduced in evidence and viewed by the trial court.

On November 22, 2016, following the evidentiary hearing, the trial court denied the motion, applying the standard enunciated in Holloway v. State, 160 So.3d 149 (Fla. 3d DCA 2015). In Holloway, we followed an earlier decision of our sister court and held that a defendant seeking to withdraw a plea based upon newly-discovered evidence must establish that:

(1) the evidence was unknown to the defendant, his trial counsel, and the trial court within the two-year rule 3.850 window; (2) the evidence could not have been discovered by the use of due diligence; and (3) withdrawal of the plea is necessary to correct a manifest injustice.

Id. at 151 (quoting Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993) ) (emphasis added).

The trial court, applying this standard, determined that Perez had met the first two prongs, but had failed to satisfy the third prong, concluding in its order of denial that Perez "has not demonstrated a manifest injustice based on actual innocence."

However, the standard we adopted in Holloway has been supplanted by the Florida Supreme Court's subsequent decision in Long, 183 So.3d at 345-46, which announced the applicable standard for considering a motion to vacate a plea based upon newly-discovered evidence. We noted this change in the law in our recent decision in Perez v. State, 212 So.3d 469, 470-72 (Fla. 3d DCA 2017) :

In Long, the Court began by acknowledging the established standard for a motion to vacate a plea, judgment and sentence based upon a claim of ineffective assistance of counsel :
We have addressed the vacation of a judgment and sentence on postconviction relief where the defendant has entered a guilty plea within the context of ineffective assistance of counsel. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004). In Grosvenor, we established a two-prong test for determining claims of ineffective assistance of counsel relating to guilty pleas. The first prong is identical to the deficient performance prongs in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms. As for the second prong, we held that a defendant must demonstrate "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." Grosvenor, 874 So.2d at 1181. The defendant does not have to show that he actually would have prevailed at trial, but the strength of the government's case against the defendant should be considered in evaluating whether the trial if defendant really would have gone to he had received adequate advice from his counsel. Id."Counsel's effectiveness is determined according to the totality of the circumstances." Id. (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052 ).
Long, 183 So.3d at 345-46. (Citations omitted).
Borrowing heavily from this hybrid standard utilized in a motion to vacate plea based on ineffective assistance of counsel, the Court held that a similar standard should apply where the motion to vacate judgment and sentence following a plea is based upon newly-discovered evidence:
We likewise establish a similar two-prong test for determining postconviction claims for newly discovered evidence relating to guilty pleas which adopts the first prong of the Jones test and the second prong from Grosvenor. First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial. "[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." Grosvenor, 874 So.2d at 1181-82.

We therefore reverse the trial court's order and remand for the trial court to reconsider the merits of Perez's claim under the standard announced in Long.

REVERSED AND REMANDED.

      The Florida Supreme Court issued Long on January 21, 2016, after Perez's motion and the State's response had been filed, but prior to the evidentiary hearing. From the record provided, it does not appear that either party alerted the trial court to the Long decision or the change in the applicable standard.

      In our earlier Perez decision, we noted that Long was issued after the evidentiary hearing and after the trial court entered its order. Given those circumstances, our instructions on remand permitted the trial court, in its discretion, to "hold a further evidentiary hearing or take additional evidence before considering this matter on remand." Perez, 212 So.3d at 472. In the instant case, by contrast, the Long decision was issued nine months prior to the evidentiary hearing. The parties are charged with knowledge of the then-existing legal standard at the time of the hearing and are not entitled to a second bite of the evidentiary apple on remand.