text:
    Marlon GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3473
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William WHITELEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3223
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alicia BECKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2345
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven COHN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3167
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jordy FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3352
    District Court of Appeal of Florida, Fourth District.
    January 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lester BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3210
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles M. RAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3068
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scotty Santos DIAZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-0365
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven G. SANDERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2830
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kevin Lamar BLAKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1545
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 10, 2017 Rehearing Denied January 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose NOGUERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2289
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard C. MANNING, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D17-2249
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard Alfred TASKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2233
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alejandro VALDES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2122
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John Francis ROACH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2557
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Israel OTERO and Pura Rodriguez, Appellants, v. Sunny A. HILLARY, Appellee.
    Case No. 5D17-891
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing and Rehearing En Banc Denied January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Reinaldo CABALLERO-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-119
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Peter ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3955
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 12, 2017 Rehearing Denied January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Quincy GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1234
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James E. BAUMANN and Debora K. Baumann, Appellants, v. PNC BANK, N.A., Successor in Interest to National City Real Estate Services, LLC., Successor By Merger To National City Mortgage, Inc., f/k/a National City Mortgage Co., d/b/a Commonwealth, etc., Appellee.
    Case No. 5D17-1934
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael Angelo GOODRICH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2022
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017 Rehearing Denied January 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joellen STANDARD, as Personal Representative of the Estate of Scott Standard, Appellant, v. James W. CONNER, III, Appellee.
    Case No. 5D16-4200
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rashod Amard SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1227
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Frederick Jordan GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1191
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keith SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1083
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shane BURNS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-944
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keith Robert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-735
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shane HUGHES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-661
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Manuel G. MIRANDA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-269
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Walter Lane STAPLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-167
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tyrone ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-117
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Vincent Eugene DUNCAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3938
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Fernando RICARDO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3255
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard Earl GOODMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-1689
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Clark Paul LEFRANC, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1021
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kristofer GOULD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3708
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Elizabeth GARCIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2437
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony M. BAILEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3513
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Louise FINNO, Appellant, v. CITIMORTGAGE, INC. as Successor by Merger, Appellee.
    Case No. 5D17-1625
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William F. VAN GORDEN, Appellant, v. Constance F.W. VAN GORDEN, Appellee.
    Case No. 5D17-141
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Taquarvis BURTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3395
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Billy James BURNHAM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2994
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    ESTATE OF Aura M. CENTENO, BY AND THROUGH Leonor Gonzalez CENTENO, Personal Representative, Appellant, v. NEW HORIZON NH, LLC., Greystone Healthcare Management Corp., Matthew E. Pedersen (as to Lodge Health and Rehabilitation Center), Appellees.
    Case No. 5D16-3775
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Frank L. ADAMS, Jr., Appellant, v. OFFICE OF THE PUBLIC DEFENDER, Putnam County, Florida and Office of Criminal Conflict and Civil Regional Counsel, Appellee.
    Case No. 5D16-3748
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Laforest WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2919
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert CASTANO, Appellant, v. FLORIDA CENTRAL RAILROAD COMPANY, INC., Appellee.
    Case No. 5D16-2683
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Altherio SHARPTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1976
    District Court of Appeal of Florida, Fifth District.
    January 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Per Curiam.

text:
    Jane EISENPRESSER, Appellant, v. Nancy KOENIG and the Estate of Harriet Numeroff, Appellees.
    No. 4D16-3444
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Brandan J. Pratt and Jennifer L. Fox of Huth, Pratt & Milhauser, Boca Raton, for appellant.
    Ronald P. Ponzoli, Jr. and John G. White, III, of GrayRobinson, P.A, Boca Raton, for appellees.
   Per Curiam.

Appellant Jane Eisenpresser seeks to reverse the trial court's final judgment as to her petition for removal and surcharge of personal representative Nancy Koenig. Appellant further challenges portions of the trial court's order regarding her amended objections to the personal representative's final accounting and petition for discharge. With one exception, we affirm the trial court without further comment, as the final judgment and order are in accord with the applicable law, supported by competent substantial evidence, and not indicative of an abuse of discretion on the part of the trial court.

As noted above, we reverse with respect to one issue addressed on appeal, a piece of jewelry identified as item number 157. The parties agreed that the decedent bequeathed certain personal property to individually identified heirs. Appellant testified that the heir who purchased an item for the decedent would inherit the item upon the decedent's death. During closing argument, Appellees' counsel stated that Koenig, also an heir of the decedent, had originally purchased and gifted this jewelry item to decedent. Beyond this bare assertion, however, Appellee offered no proof to support the claim that Koenig purchased jewelry item 157 or that the decedent intended the item for Koenig. By contrast, jewelry item 157 was clearly identified in the statement of personal property attached to decedent's will as to be gifted to Appellant.

This Court decides whether factual findings of the trial court are supported by competent substantial evidence. Grant v. Bessemer Tr. Co. of Fla., Inc. ex rel. Grant , 117 So.3d 830, 835-36 (Fla. 4th DCA 2013) ; Acoustic Innovations, Inc. v. Schafer , 976 So.2d 1139, 1143 (Fla. 4th DCA 2008). For the trial court to find that the decedent had the intent to give item 157 to Koenig despite the unambiguous language of the will, Koenig would have to show this purported mistake of fact by clear and convincing evidence.

Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator's original intent, the court may consider evidence relevant to the testator's intent even though the evidence contradicts an apparent plain meaning of the will.

§ 732.615, Fla. Stat. (2016).

The decedent's will unambiguously bequeathed jewelry item 157 to Appellant, and Appellee presented no evidence, let alone clear and convincing evidence, to contradict this bequest. A statement made by counsel in closing is not "evidence." See, e.g. , Ruiz v. State , 743 So.2d 1, 4 (Fla. 1999) (the role of the attorney in closing argument "is not for the purpose of permitting counsel to 'testify' as an 'expert witness' "). Therefore, we reverse and remand with instructions that the trial court grant jewelry item 157 to Appellant. We otherwise affirm the final judgment and order in full.

Affirmed in part , reversed in part .

Warner, Gross and Forst, JJ., concur.

      See In re Murphy's Estate , 336 So.2d 697, 699 (Fla. 4th DCA 1976) (a trial court's decision on a petition for removal of a personal representative is reviewed for an abuse of discretion).


author: Taylor, J.

text:
    Joy MACK, Appellant, v. Philip REPOLE and Phyllis Repole, Appellees.
    No. 4D16-3595
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Henry G. Gyden of the Gyden Law Group, Tampa, for appellant.
    William S. Isenberg of the Law Offices of William S. Isenberg, Fort Lauderdale, for appellees.
   Taylor, J.

Appellant Joy Mack, the defendant and counter-plaintiff below, appeals a final order dismissing her case for lack of prosecution. Our review of the record, however, shows that appellant is actually attempting to use this appeal as a vehicle for challenging the trial court's earlier final orders enforcing a settlement agreement and denying appellant's motion for relief under Florida Rule of Civil Procedure 1.540. Because appellant either failed to timely appeal or otherwise failed to prosecute appeals of those final orders, our court does not have jurisdiction to review those orders in this appeal. We therefore dismiss this appeal for lack of jurisdiction and find that the trial court's dismissal of this case below for lack of prosecution was superfluous.

As an Illinois appellate court has explained, "[w]hen a party has failed to take a timely appeal from an order that is final for purposes of appeal, the appellate court is without jurisdiction to consider the propriety of that earlier final order in an appeal from a subsequent order, even in the same case." Busey Bank v. Salyards , 304 Ill.App.3d 214, 238 Ill.Dec. 197, 711 N.E.2d 10, 14 (1999). Stated another way, the entry of a subsequent final order does not confer jurisdiction on this court to review an earlier final order that was not timely appealed. Accordingly, our court's jurisdiction to review the trial court's earlier orders concerning the settlement agreement depends on whether those orders were final.

An order enforcing a settlement agreement is final and appealable where there is "nothing whatever left for the court to do in the pending action, other than to enforce what the order required of the parties." Travelers Indem. Co. v. Walker , 401 So.2d 1147, 1149 (Fla. 3d DCA 1981). A subsequent formal order of dismissal is not necessary to terminate the action. Id.

Likewise, an order denying a motion for relief from judgment is final in nature. Francisco v. Victoria Marine Shipping, Inc. , 486 So.2d 1386, 1391 (Fla. 3d DCA 1986).

Here, appellant's October 24, 2016 Notice of Appeal does not confer jurisdiction on our court to review any of the following orders, which we deem to be final orders: (1) the September 24, 2012 order enforcing the settlement agreement; (2) the February 28, 2013 order denying appellant's rule 1.540 motion to vacate; and (3) the February 28, 2013 order granting appellees' motion to compel enforcement of the settlement agreement. Because appellant either failed to timely appeal or otherwise failed to prosecute appeals of those final orders, we do not have jurisdiction to review those orders in the instant appeal.

We further find that the trial court's dismissal for lack of prosecution was superfluous. By the time of the trial court's dismissal, the parties had complied with the settlement agreement and the case was concluded.

Dismissed.

Forst and Klingensmith, JJ., concur.

      Although appellant previously appealed the September 24, 2012 order and one of the February 28, 2013 orders, those appeals were dismissed either for failure to pay the filing fee or for lack of prosecution.


author: Levine, J.

text:
    Edward AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1524
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    David W. Collins of Collins Law Firm, Monticello, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The trial court originally imposed a concurrent life sentence but then imposed a consecutive life sentence on resentencing. The issue is whether the sentence is vindictive. We find the sentence is vindictive because the reasons for the more severe sentence did not affirmatively appear in the record and were not based on appellant's conduct occurring after the original sentencing proceeding. We reverse and remand for resentencing before a different judge.

In 2001, the court sentenced appellant as a prison releasee reoffender to life in prison for burglary with a battery to run concurrently with his life sentence in a 1992 case. Appellant filed a rule 3.800 motion to correct illegal sentence, arguing it was improper to sentence him as a prison releasee reoffender because burglary of a dwelling with a battery does not qualify as a forcible felony. The court granted the motion to correct illegal sentence. The state then filed a notice to declare appellant a habitual felony offender.

During resentencing before the original sentencing judge, defense counsel informed the court that the scoresheet was incorrect and should be ten points higher. Defense counsel also informed the court that appellant would be parole eligible in the 1992 case after serving an additional seven years, for a total of twenty-two years. According to defense counsel, during the original sentencing everyone was under the impression that appellant would never have an opportunity to be released. Defense counsel requested a sentence of twenty-two or thirty years.

The trial court stated that it would not trust appellant in the community if he got out early. The court then sentenced appellant as a habitual felony offender to life imprisonment consecutive to his sentence in the 1992 case. Appellant appealed.

During the pendency of his appeal, appellant filed a motion to correct sentence and an amended motion to correct sentencing error. Appellant argued that the increased length of his sentence from two concurrent life sentences to two consecutive life sentences was vindictive in violation of North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant argued that his sentence should be changed to run concurrently. The trial court did not rule on the motion within sixty days, and therefore it is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).

On appeal, appellant argues that the trial court imposed an unconstitutionally vindictive sentence by imposing a consecutive life sentence without pronouncing reasons justifying the more severe sentence.

The state responds that additional information presented at resentencing rebutted any suggestion of vindictiveness and that a consecutive life sentence was necessary to effectuate the court's original intent.

"Whether the trial court imposed a vindictive sentence is a question of law which this court reviews de novo." Pierre v. State , 114 So.3d 319, 324 (Fla. 4th DCA 2013).

Both the United States and Florida Constitutions declare that governments cannot deprive any person of life, liberty, or property without due process of law. U.S. Const. amends. V, XIV ; Fla. Const. art. I, § 9. In Pearce , the United States Supreme Court stated that "[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725, 89 S.Ct. 2072. Thus, to assure the absence of retaliatory motivation, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 726, 89 S.Ct. 2072. Further,

[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Id.

The Pearce requirements "do not apply in every case where a convicted defendant receives a higher sentence on retrial." Alabama v. Smith , 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (alteration omitted) (quoting Texas v. McCullough , 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) ). Pearce is limited to circumstances "in which there is a 'reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id. (quoting United States v. Goodwin , 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ). The Pearce presumption of vindictiveness has been applied "when the same trial judge imposes a harsher sentence after the defendant successfully attacks the original sentence." Graham v. State , 681 So.2d 1178, 1178 (Fla. 2d DCA 1996) ; see also Sands v. State , 899 So.2d 1208, 1211 (Fla. 5th DCA 2005).

Rodriguez v. State , 917 So.2d 958 (Fla. 3d DCA 2005), is on point. In Rodriguez , the trial court sentenced the defendant to concurrent life sentences for murder, attempted murder, armed robbery, and armed trafficking as well as a concurrent thirty-year sentence for conspiracy to traffic cocaine. The defendant filed a rule 3.800(a) motion, arguing that attempted murder, armed trafficking, and conspiracy to traffic cocaine were first-degree felonies subject to a maximum of thirty years. The trial court granted the motion, and resentenced the defendant to consecutive life sentences for murder and armed robbery and consecutive thirty-year sentences for the remaining counts. The Third District held that the presumption of vindictiveness applied and that consecutive sentences were not justified as a reflection of the original court's intent. Id. at 961.

Similarly, in Gilliam v. State , 582 So.2d 610 (Fla. 1991), the defendant was sentenced to death and a concurrent life sentence. After retrial, the court again imposed the death penalty but sentenced appellant to a consecutive life sentence without providing any reason for the more severe sentence. Citing Pearce , the Florida Supreme Court reversed and remanded for imposition of a concurrent sentence. Id. at 612-13 ; see also Richardson v. State , 821 So.2d 428, 431 (Fla. 5th DCA 2002) (finding Pearce vindictiveness presumption applied where court imposed harsher sentence after a successful 3.800 motion without any "independent legal basis or identifiable conduct on [the defendant's] part ... to justify the harsher sentence").

In the instant case, as in Rodriguez , Gilliam , and Richardson , the new sentence of a consecutive life term constituted "a more severe sentence" than the original sentence of a concurrent life term. See Pearce , 395 U.S. at 726, 89 S.Ct. 2072 ; Rodriguez , 917 So.2d at 960. Therefore, the Pearce presumption of vindictiveness applies because the judge imposed a harsher sentence after appellant successfully attacked his original sentence. Additionally, the judge did not give any reason for the more severe sentence, nor did anything in the record justify the increased sentence.

The state claims that additional information presented at resentencing was sufficient to rebut any allegation of vindictiveness in resentencing. In support, the state notes its intent to declare appellant a habitual felony offender, the ten-point scoresheet error, the mistaken impression that appellant would never have an opportunity to be released for the 1992 case, and appellant's participation in substance abuse programs. None of this, however, constitutes "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce , 395 U.S. at 726, 89 S.Ct. 2072. Nor was any of this information identified by the court as a basis for its harsher sentence. See Parker v. State , 977 So.2d 671, 672 (Fla. 4th DCA 2008) ("[A] trial court imposing a more severe sentence at resentencing was required to make the reasons for the more severe sentence affirmatively appear in the record.") (citing Pearce , 395 U.S. at 726, 89 S.Ct. 2072 ).

The state also claims that by imposing a consecutive life sentence, the trial court was attempting to effectuate the original intent of the court. However, a consecutive life sentence was not necessary to achieve the original court's intent. Because the sentence in the instant case was not subject to parole, a concurrent life sentence would have achieved the original intent of ensuring appellant is never released from prison.

In sum, the Pearce presumption of vindictiveness applies because the court imposed a harsher sentence after appellant successfully attacked his original sentence, and nothing in the record justified the increased sentence. As such, we reverse and remand for resentencing by a different judge. See Wilson v. State , 845 So.2d 142, 159 (Fla. 2003) (concluding that in cases where an unrebutted presumption of judicial vindictiveness arises, the appropriate remedy is resentencing before a different judge).

Reversed and remanded for resentencing .

Ciklin and Klingensmith, JJ., concur.


text:
    Lesline RUSSELL, Appellant, v. BAC HOME LOANS SERVICING, LP f/k/a Countrywide Home Loans Servicing LP, Appellee.
    No. 4D16-3908
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.
    Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellee.
    ON MOTION FOR REHEARING
   Levine, J.

We deny appellee's motion for rehearing, but withdraw our previously issued opinion and substitute the following in its place.

Appellant appeals a final judgment of foreclosure following summary judgment. Appellant argues that a genuine issue of material fact existed as to standing at the inception of the action because the endorsement on the note attached to the complaint was different than the endorsements on the original note filed with the court. We agree that a genuine issue of material fact existed and therefore we reverse.

BAC Home Loans Servicing filed a complaint for mortgage foreclosure against appellant. A copy of the note attached to the complaint contained an undated endorsement in blank by Q Lending, the lender named in the note. A copy of the note attached to the amended complaint contained an undated specific endorsement by Q Lending to Taylor, Bean & Whitaker Mortgage Corp. as well as an undated endorsement in blank by Taylor, Bean & Whitaker.

Appellant filed an answer and affirmative defenses, raising lack of standing and pointing out the discrepancy in the endorsements.

Carrington Mortgage Services, LLC, was substituted as party plaintiff and moved for summary judgment. In support of its motion, Carrington submitted an affidavit from Bank of America's assistant vice president stating that Bank of America had physical possession of the note endorsed in blank by Taylor, Bean & Whitaker as of May 19, 2010, the date the foreclosure action was filed. A screenshot accompanying the affidavit showed that Bank of America received the note on September 26, 2009. A second screenshot purported to show that the version of the note with two endorsements was scanned into Bank of America's system on December 18, 2009.

The trial court granted summary judgment and entered a final judgment in favor of Carrington.

Whether a party has standing to bring an action is reviewed de novo. Boyd v. Wells Fargo Bank, N.A. , 143 So.3d 1128, 1129 (Fla. 4th DCA 2014). An order granting summary judgment is also reviewed de novo. Craven v. TRG-Boynton Beach, Ltd. , 925 So.2d 476, 479 (Fla. 4th DCA 2006).

"[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought." Id. at 479-80. "The burden is initially on the movant. Only where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence." Id. at 480.

"[S]ummary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law." Id. If the evidence is conflicting, permits different reasonable inferences, or tends to prove the issues, it should be submitted to the trier of fact. Darwiche v. Bank of N.Y. Mellon , 185 So.3d 1261, 1262 (Fla. 4th DCA 2016). "If the 'slightest doubt' exists, then summary judgment must be reversed." Id. (citation omitted).

"A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose" at the time the complaint is filed. McLean v. JP Morgan Chase Bank Nat'l Ass'n , 79 So.3d 170, 173 (Fla. 4th DCA 2012). "[S]tanding may be established from a plaintiff's status as the note holder, regardless of any recorded assignments." Id. "If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note." Id. (citations omitted). "[I]f the plaintiff relies upon an affidavit of ownership to prove its status as a holder of the note on the date the lawsuit was filed, it is sufficient if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed." Id. at 174.

BAC's possession of the endorsed note was insufficient to conclusively establish standing at the time BAC filed the complaint. The copy of the note attached to the original complaint contained an undated endorsement in blank by Q Landing. However, the copy of the note attached to the amended complaint, as well as the original note, contained an undated specific endorsement by Q Lending to Taylor, Bean & Whitaker who, in turn, executed an endorsement in blank. Because only the holder of a note may convert a blank endorsement to a special endorsement, this suggests that Taylor, Bean & Whitaker-and not BAC-possessed the original note at the time BAC filed the complaint and that Taylor, Bean & Whitaker executed a special endorsement as the holder of the note after BAC filed the complaint. See § 678.3041, Fla. Stat. (2016) ("A holder may convert a blank indorsement to a special indorsement.").

Additionally, the affidavit was insufficient to establish BAC's standing. Floyd v. Bank of America, N.A. , 194 So.3d 1071 (Fla. 5th DCA 2016), is instructive. In Floyd , the Fifth District found that the bank's affidavit was insufficient to establish standing because it did not resolve all the material issues in the case. The affidavit in Floyd did not offer any explanation of why a blank endorsement appeared on the note filed at the hearing but not on the copy filed with the complaint. Therefore, a material issue remained as to when the note was endorsed and how the bank obtained standing.

Similarly, the affidavit in the instant case did not resolve the inconsistency between the copy of the note attached to the original complaint and the note attached to the amended complaint and filed with the court in support of summary judgment. The affidavit did not offer any explanation as to why a blank endorsement by Taylor, Bean & Whitaker Mortgage Corp. appeared on the note filed in support of summary judgment but a blank endorsement by Q Lending appeared on the copy of the note filed with the original complaint. Like in Floyd , a material issue remained as to when the note was endorsed and how BAC obtained standing.

In sum, a genuine issue of material fact remained as to whether BAC had standing when it filed the complaint. As such, we reverse the entry of summary judgment and remand for further proceedings.

Reversed and remanded for further proceedings.

Forst and Kuntz, JJ., concur.

      BAC later merged into Bank of America, N.A.


author: May, J.

text:
    Angela Gladette KEMP, Appellant, v. Pam STEWART, as the Commissioner of Education, Appellee.
    No. 4D17-2569
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Matthew R. McGuigan of Mill Stone Legal Group, LLC, Fort Lauderdale, for appellant.
    No brief filed for appellee.
    ON CONFESSION OF ERROR
   May, J.

A school administrator appeals a final order from the Education Practices Commission ("EPC"). The appellee, Commissioner of Education, has moved to remand the case to the EPC for further proceedings. Having reviewed the motion, the initial brief, and the record, we grant the motion and remand the case to the EPC.

The EPC convened a teacher hearing panel for an informal hearing, pursuant to sections 120.569 and 120.57(2), Florida Statutes (2017). The EPC issued a final order from which the administrator has now appealed.

In her initial brief, the administrator argues that the informal hearing was held before an improper panel of the EPC. The Commissioner agrees and has moved to remand the case to correct the procedural problem.

Section 1012.79(8)(a), Florida Statutes (2017), provides the EPC shall:

from time to time, designate members of the commission to serve on panels for the purpose of reviewing and issuing final orders upon cases presented to the commission .... A case concerning a complaint against an administrator shall be reviewed and a final order issued by a panel composed of five commission members, at least one of whom must be a parent or sworn law enforcement officer and at least three of whom must be administrators.

Here, the panel holding the administrator's informal hearing and issuing the final order was composed of one parent, one administrator, and three teachers. However, because the complaint was against an administrator, the panel should have included three administrators.

An agency has an "inherent power to correct its own errors in its orders." Filarski v. Reemployment Assistance Appeals Comm'n , 97 So.3d 278, 281 (Fla. 4th DCA 2012). This is especially true when the error involves a due process violation. Id.

We therefore grant the Commissioner's motion, and reverse and remand the case to the EPC for further proceedings.

Reversed and Remanded .

Gross and Taylor, JJ., concur.


text:
    WASHINGTON MUTUAL BANK f/k/a Washington Mutual Bank, FA, Appellant, v. Gretchen A. MILLER a/k/a Gretchen Miller ; Legacy Bank of Florida; Aries-Miller, Limited Liability Partnership; Tenant #1, Served As Peter Rainieri; Tenant #2, Served As Westin Garcia; and Keith F. Miller a/k/a Keith Miller, Appellees.
    No. 4D17-1370
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellant.
    Jeffrey Begens of the Law Office of Jeffrey Begens, P.A., Palm Beach Gardens, for appellee, Gretchen A. Miller.
   Per Curiam.

In a prior appeal, this court reversed the foreclosure judgment entered in favor of the appellant ("bank") as well as an order denying one of the appellee's ("borrower's") objection to the judicial sale and issuance of a certificate of title. While on remand, the borrower moved to dismiss the foreclosure complaint. The bank moved to amend the pleadings in an attempt to cure the defect that resulted in the reversal of the judgment on appeal. The bank argues that the trial court erred in not considering its motion to amend the pleadings on remand. The bank also contends that the trial court exceeded the scope of the appellate mandate in dismissing the suit.

We reject these arguments and affirm the dismissal of the foreclosure suit. However, we find that the trial court erred in dismissing the foreclosure complaint without first vacating the foreclosure judgment, sale, and certificate of title. We remand to the trial court to amend the order so that it contains a provision vacating the foreclosure judgment, sale, and certificate of title.

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

Ciklin, Levine and Klingensmith, JJ., concur.


author: SUAREZ, J.

text:
    TBI CARIBBEAN COMPANY LTD., etc., et al., Appellants, v. STAFFORD-SMITH, INC., etc., Appellee.
    No. 3D17-943
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017 Rehearing Denied January 17, 2018
    The Bain Law Firm P.L. and Basil L. Bain (Naples), for appellants.
    Vernon Litigation Group and Jeffrey S. Haut and Sara F. Hall (Naples), for appellee.
    Before SUAREZ, LOGUE, and SCALES, JJ.
   SUAREZ, J.

TBI Caribbean Company, Ltd. and Jesus Hinojosa (Appellants/Defendants below) appeal from the trial court's non-final order denying their motions to dismiss Stafford-Smith, Inc.'s (Appellee/Plaintiff below) Complaint for failure to allege a sufficient basis for invoking personal jurisdiction. Because we find that TBI and Hinojosa waived their objection to personal jurisdiction by seeking affirmative relief under a Subcontract Agreement, which was inconsistent with their jurisdictional objection, we affirm.

BACKGROUND

TBI and Stafford-Smith entered into a Subcontract Agreement in which TBI, the contractor, agreed to pay Stafford-Smith, the subcontractor, to complete work on the Baha Mar resort in Nassau, Bahamas. According to the Complaint, Hinojosa signed a personal guarantee of TBI's debt. The Complaint's only allegation regarding personal jurisdiction was the following: "Pursuant to the explicit terms of the contract, paragraph 38-C, jurisdiction is proper in Miami, Florida." Paragraph 38(c), in turn, provides as follows:

To the extent that any dispute, controversy, or claim arises under this Subcontract and a suit is initiated by either party, the suit, shall be brought in and before the State Court in Dade County, Florida, wherein exclusive jurisdiction shall lie. This agreement on jurisdiction/venue shall override any conflicting state statute and, for any such lawsuit, Subcontractor hereby waives any rights to assert any different jurisdiction/venue pursuant to a conflicting state statute.

In response to the Complaint, TBI and Hinojosa filed motions to dismiss for failure to state causes of action for personal guarantee and breach. TBI and Hinojosa also sought dismissal for failure to allege a sufficient basis for asserting personal jurisdiction. Both motions included a request for attorney's fees pursuant to a fee provision in the Subcontract Agreement. The circuit court denied the motions to dismiss, and TBI and Hinojosa appeal.

ANALYSIS

The only issues on appeal concern personal jurisdiction. TBI and Hinojosa argue that the circuit court erred in denying their motions to dismiss because the Complaint was required to allege sufficient bases for Florida courts to exercise personal jurisdiction, and the only allegation, a single reference to the Subcontract Agreement, was insufficient. See, e.g., Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Servs., Ltd., 811 So.2d 809, 811 (Fla. 3d DCA 2002) ("The legislature has set forth in our long arm statute the policy of this State concerning when Florida courts can exercise in personam jurisdiction over non-resident defendants. Conspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement." (quoting McRae v. J.D./M.D., Inc., 511 So.2d 540, 543 (Fla. 1987) )). We agree. The Complaint was facially insufficient because the only alleged basis for personal jurisdiction was the Subcontract Agreement's forum selection clause.

Stafford-Smith does not dispute that the Complaint was insufficient. Instead, it argues (1) that the appeal should be dismissed as moot because it sought to amend the Complaint below and (2) TBI and Hinojosa waived their objection to personal jurisdiction by requesting attorney's fees under the Subcontract Agreement.

Stafford-Smith's mootness argument is without merit. On the same day Stafford-Smith filed its Answer Brief, it filed a Motion for Leave to Amend the Complaint in the circuit court. Initially, the circuit court granted the Motion, and Stafford-Smith filed two motions to supplement the record on appeal with both the Motion to Amend and the Order granting the Motion. However, this Court denied both of Stafford-Smith's motions to supplement. The circuit court subsequently vacated its order granting Stafford-Smith's Motion for Leave to Amend. Consequently, there is no amended complaint below, and everything is as it was when this appeal was filed.

We next consider Stafford-Smith's waiver argument. TBI and Hinojosa requested attorney's fees in their motions to dismiss below and in a motion filed in this appeal. Stafford-Smith argues that TBI and Hinojosa waived their objection to personal jurisdiction by seeking attorney's fees pursuant to the Subcontract Agreement. We agree.

It is well established that personal jurisdiction may be waived by seeking relief that is inconsistent with a jurisdictional objection. See Babcock v. Whatmore, 707 So.2d 702, 703-04 (Fla. 1998) ; Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987) ("If a party takes some step in the proceedings which amounts to a submission to the court's jurisdiction, then it is deemed that the party waived his right to challenge the court's jurisdiction regardless of the party's intent not to concede jurisdiction." (citations omitted)).

Although the issue of whether a request for attorney's fees waives an objection to personal jurisdiction has rarely been addressed by Florida courts, TBI and Hinojosa point us to two cases in support of their argument that their demand for attorney's fees did not waive their objection to personal jurisdiction.

Heineken v. Heineken, 683 So.2d 194 (Fla. 1st DCA 1996) appears to be one of the first Florida cases to address the issue. There, the First District recognized that courts in other jurisdictions have taken various positions in determining whether a fee request waives an objection to personal jurisdiction. Id. at 197. The court ultimately determined that a request for fees under Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977) did not waive an objection to personal jurisdiction. Id. at 198. Similarly, the Fourth District determined that in an action for child support, jurisdiction was not waived by the filing of a motion for attorney's fees in connection with a motion to dismiss for lack of personal jurisdiction. Gustafasson v. Levine, 186 So.3d 562, 564 (Fla. 4th DCA 2015) (citing Heineken, 683 So.2d at 198 ).

The Heineken court concluded, based on a Washington Supreme Court case, that the motion to recover attorney's fees was purely defensive in nature and not "affirmative relief." Id. We agree with Judge Benton's concurring opinion that such a distinction is problematic because "the weight of authority supports the view that an award of attorney's fees does constitute affirmative relief." Id. at 199 (Benton, J., concurring). Consequently, a more "pertinent inquiry is whether the request is inconsistent with the jurisdictional objection." Id. at 200 (Benton, J., concurring); see also 4 Fla. Prac., Berman's Florida Civil Procedure § 1.140:21 (April 2017) ("Lack of personal jurisdiction is unquestionably waivable, as any party, individual or entity can voluntarily submit to the court's jurisdiction whether or not otherwise legally susceptible .... Some of the fear of inadvertent waiver has been eased in modern times by the abolition of the requirement for a special or limited appearance; as long as the defense is raised upon the first response to a claim for affirmative relief, whether by motion or answer, and as long as the party does not inconsistently seek affirmative relief in the jurisdiction, the defense is preserved. " (footnotes omitted and emphasis added)).

Here-unlike in Heineken and Gustafasson-TBI and Hinojosa have requested an award of attorney's fees pursuant to a contract, which would require both this Court and the court below to assume jurisdiction in order to enforce the Subcontract Agreement's fee provision. Moreover, the request for fees below was not limited to fees incurred in connection with defending against the exercise of personal jurisdiction, it also requested fees in connection with the other alleged bases for dismissal. We therefore find that TBI and Hinojosa waived their objection to personal jurisdiction by inconsistently seeking affirmative relief.

Affirmed.

      Hinojosa is not a party to the Subcontract Agreement, and it is not clear on what grounds his recovery of fees is sought. See Fla. R. App. P. 9.400(b).

      See Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) ("The parties have not cited, and we have not found, any decision in Florida case law addressing whether a request for attorney's fees incurred in the prosecution of a motion to dismiss for lack of personal jurisdiction constitutes a request for 'affirmative relief' which waives the objection to personal jurisdiction.").


author: PER CURIAM.

text:
    Solimar ARANCIBIA f/k/a Solimar Rodriguez, Petitioner, v. Jose R. CASTILLO, Respondent.
    No. 3D17-2397
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018
    Marti Goldstein, P.A., and Marti Goldstein, for petitioner.
    Law Offices of Kenneth M. Kaplan, and Kenneth M. Kaplan, for respondent.
    Before SUAREZ, LAGOA and SCALES, JJ.
   PER CURIAM.

Solimar Arancibia, the respondent in a paternity action below, seeks a writ of prohibition from this Court. Arancibia asserts that the trial court lost jurisdiction to proceed further in this case after rendering a dismissal order on January 25, 2017, for lack of prosecution, and that we should quash the trial court's October 11, 2017 order vacating this dismissal order.

While not entirely clear from the record, it appears that the January 25, 2017 dismissal order results from either the lower court clerk or the trial court improperly calculating the time period under Florida Family Law Rule of Procedure 12.420(d), and it is uncontested that ample record activity occurred precluding dismissal for failure to prosecute. Additionally, between the rendition of the dismissal order and the entry of the vacatur order, the parties filed numerous motions, and the trial court conducted several hearings in the case.

The trial court docket reflects that the parties filed no less than four motions seeking to vacate the dismissal order, including one such motion filed and served by Jose Castillo (respondent here, and petitioner below in a paternity action) within fifteen days of rendition of the dismissal order.

While the record is unclear as to why the trial court did not sooner enter its order vacating its erroneous dismissal order, it is clear that the trial court did have jurisdiction to adjudicate these motions and vacate its earlier dismissal order. See Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983) ("If [a motion for rehearing] is timely served, jurisdiction remains in the trial court until the motion is disposed of, either by granting or denying the relief sought. During the period of retained jurisdiction, the trial court exercises complete control over the case and may alter or change its decision accordingly.") (citation omitted).

Petition denied.

      This rule provides:
      (d) Failure to Prosecute . In all actions in which it appears on the face of the record that for a period of 10 months, no activity by filing of pleadings or order of court has occurred, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of the notice, and no record activity occurs within 60 days immediately following the service of the notice, and if no stay was issued or approved before the expiration of the 60-day period, the action must be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year is not sufficient cause for dismissal for failure to prosecute.
      Fla. Fam. L. R. P. 12.420(d).

      Indeed, during this time period, the docket reflects over fifty docket entries.

      Florida Family Rule of Procedure 12.530(b) provides that "[a] motion ... for rehearing must be served not later than 15 days after ... the date of filing of the judgment in a non-jury action."


author: LAGOA, J.

text:
    Juan AGUILAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2167
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018.
    Jeffrey S. Weiner, P.A., and Jeffrey S. Weiner, Annabelle H. Nahra, and Diego Weiner, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER, and EMAS, JJ.

      Judge Emas did not participate in oral argument.

   LAGOA, J.

Juan Aguilar ("Aguilar") appeals his conviction and sentence for various driving under the influence ("DUI") crimes arising out of a multi-vehicle accident that resulted in the death of one person at the scene and serious bodily injury to two others. Aguilar primarily challenges the admission of the results of a blood alcohol test performed on blood samples obtained from him at Ryder Trauma Center following his transport there for his injuries. Because we find no error in the admission of the blood test results, we affirm as to Counts I, III, and V. We reverse, however, with respect to Counts II and IV based on the State's proper concession of a violation of the double jeopardy clause. We affirm as to all other issues raised by Aguilar.

I. FACTUAL AND PROCEDURAL HISTORY

On Sunday, December 9, 2007, at approximately 3:00 a.m., a three-car accident occurred in the four westbound lanes of State Road 836 near the 27th Avenue exit. At approximately 3:11 a.m., Florida Highway Patrol Trooper Bobadilla ("Trooper Bobadilla") received a dispatch regarding this accident. When he arrived at the scene, Miami Dade Expressway Authority ("MDX") Road Rangers had closed all but the far-left lane in order to allow law enforcement, fire rescue units, and tow trucks to safely operate and clear the accident scene. A board with an arrow pointing left was set up to notify drivers of the lane closures.

After investigating the scene, Trooper Bobadilla returned to his vehicle, which had its emergency lights activated. At the same time, at approximately 4:22 a.m., an MDX Road Ranger adjusting traffic cones observed a black Ford Mustang, driven by Aguilar, and another car racing at a high rate of speed westbound into the single, open left lane near the scene of the original accident. Within seconds, Trooper Bobadilla heard screeching tires and witnessed Aguilar losing control of his Mustang, which careened into the original accident scene, striking multiple cars and persons-one who died almost instantly, two who suffered serious bodily injuries, and one who suffered minor injuries. After the collision, Trooper Bobadilla walked the scene and observed skid marks consistent with the driving pattern of Aguilar's Mustang that were not present prior to the second accident.

Florida Highway Patrol Trooper Christopher Adkinson ("Trooper Adkinson") made contact with Aguilar at the scene of the accident, testifying that Aguilar "was somewhat unresponsive, incoherent," had "blood shot watery eyes," "slurred speech," and "had odor of alcohol" coming from his person and his vehicle. Trooper Adkinson gathered identification information from Aguilar, who was subsequently extracted from his Mustang by a fire rescue unit and transported to Ryder Trauma Center at Jackson Memorial Hospital with serious injuries, including a collapsed lung. Medical personnel at Ryder Trauma Center induced Aguilar into a coma and intubated him shortly after his arrival.

As there were "significant indicators" that Aguilar was displaying an "alcohol related impairment," Trooper Adkinson arrived at Ryder Trauma Center at approximately 5:09 a.m., in order to get a "blood draw." Trooper Adkinson testified no effort was made to get a warrant because of "time restraints," including waiting for contact with the primary traffic homicide investigator who would obtain the warrant, and traveling to the hospital. At Ryder Trauma Center, Trooper Adkinson again smelled an odor of alcohol emanating from Aguilar's face, which was "flushed," and noticed Aguilar's "bloodshot and watery"

eyes. Soon thereafter, Trooper Adkinson directed a nurse to obtain a nonconsensual blood sample from Aguilar. The blood sample, taken at 5:42 a.m., showed that Aguilar's blood alcohol level was 0.112.

Aguilar was arrested and charged with DUI Manslaughter (Count I), two counts of DUI causing serious bodily injury (Counts III, IV), and two counts of DUI with person or property damage (Counts II, V). Aguilar filed several motions to suppress, including one to suppress the blood draw test results due to lack of probable cause and lack of a warrant.

On May 15, 2013, the trial court heard evidence on the suppression motions. In addition to Trooper Adkinson's testimony, the State introduced testimony that to obtain a warrant would have taken at least four hours, due to the time needed for information and evidence gathering, preparing the affidavit, sending that affidavit to the Assistant State Attorney for verifying probable cause, and then driving to the emergency judge's house. The State argued that because of the natural metabolization of alcohol in the bloodstream, there were time constraints creating an exigent circumstance to justify an exception to the warrant requirement. The trial court found this evidence was sufficient to establish probable cause to order a nonconsensual blood sample from Aguilar and thus denied the suppression motions.

At trial, Aguilar moved for a judgment of acquittal and direct verdict, which the trial court denied. Subsequently, the jury returned a guilty verdict as to Counts I, III, and V. As to Counts II and IV, the jury found Aguilar guilty of the lesser included offense of DUI. Aguilar was sentenced to fifteen years in state prison as to Count I, six months in the Dade County Jail as to Counts II and IV, five years in state prison as to Count III, and 364 days in the Dade County Jail as to Count V. This appeal followed.

II. STANDARD OF REVIEW

In reviewing a trial court's ruling on motions to suppress, "appellate courts ... accord a presumption of correctness ... to the trial court's determination of historical facts," but "independently review [de novo] mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth Amendment." Connor v. State, 803 So.2d 598, 605, 608 (Fla. 2001).

II. ANALYSIS

We write primarily to address Aguilar's argument that the warrantless blood test violated the Fourth Amendment such that his motion to suppress should have been granted. For reasons stated below, we find that the trial court properly denied Aguilar's motion to suppress and affirm as Counts I, III, and V, but reverse as to Counts II and IV due to violations of the prohibition on double jeopardy.

A. Admission of Blood Test Results

" '[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' " Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (emphasis in original) (footnote omitted) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (1967)). "One well-recognized exception applies when 'the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.' " Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ). The Supreme Court has twice addressed the applicability of this exigency exception to blood testing in DUI cases.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a blood test was administered to the drunk driver despite his objections. Id. at 759, 86 S.Ct. 1826. After concluding the Fourth Amendment applied to DUI blood tests, the Court considered whether the police officer could make the probable cause determination or whether it must be made by a magistrate, who, in turn, would issue a warrant for the blood test. Id. at 767, 770, 86 S.Ct. 1826. The Court concluded that even if a warrant from a magistrate was required, an emergency-the delay necessary to obtain a warrant under the circumstances threatened the destruction of evidence-existed to excuse the warrantless search. Id. at 770-71, 86 S.Ct. 1826. In making this determination, the Court reasoned that because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system," there was no time to secure a warrant due to the time to take the accused to a hospital and investigate the accident scene. Id. at 770-71 Additionally, the Court noted "[t]he police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were 'bloodshot, watery, sort of a glassy appearance,' " and within two hours, he again observed the petitioner showing "similar symptoms of drunkenness" at the hospital. Id. at 768-69, 86 S.Ct. 1826. "Given these special facts," the Court concluded that "the attempt to secure evidence of blood-alcohol content in this case was ... appropriate [due to the emergency]." Id. at 771, 86 S.Ct. 1826.

More recently, the Court again addressed warrantless DUI blood tests in exigent circumstances in Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). In McNeely, the Court held that the natural dissipation of alcohol in the bloodstream was not a per se exigency, but one factor to consider in the totality of the circumstances test. Id. at 156, 164-65, 133 S.Ct. 1552. The Court noted its Schmerber decision relied not only on the natural dissipation of alcohol, but also the delay to secure a warrant after investigating the scene of the accident and transporting the injured suspect to the hospital. Id. at 150-52, 133 S.Ct. 1552. The Court clarified that in "drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so," but recognized "that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test." Id. at 1561.

We further find instructive Goodman v. State, No. 4D14-4479, 2017 WL 3168979 (Fla. 4th DCA July 26, 2017). In Goodman, the Fourth District Court of Appeal found exigent circumstances existed to justify a warrantless blood test where: (1) the defendant "absented himself from the scene [of the accident] for over an hour" but returned; (2) the defendant went on his own accord to the hospital for treatment before investigators found the defendant's vehicle and the victim's body; (3) "nearly four hours had passed since the time of the crash" when the investigator reached the hospital; and (4) "[t]he investigator testified that it would have taken an additional two hours to obtain a search warrant." Id. at 13. As the Fourth District noted,

[t]his was not a 'routine DUI' once the victim's body was discovered. Although the Supreme Court noted that 'the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case,' the Court clearly signaled that in some cases the destruction of evidence by the natural dissipation of alcohol could constitute an exigent circumstance.

Id. (emphasis in original) (quoting McNeely, 569 U.S. at 165, 133 S.Ct. 1552 ).

Factually, the instant case is akin to Schmerber and not to McNeely. Applying the totality of the circumstances test to the facts here makes it clear that the trial court did not err in finding that exigent circumstances were present to justify a warrantless blood test. Aguilar's accident occurred at approximately 4:22 a.m. on a Sunday. The accident was serious, resulting in the instantaneous death of one pedestrian, and caused serious bodily injuries to two more pedestrians. The accident occurred at the scene of a prior accident, further complicating the accident scene investigation. Aguilar himself was seriously injured, taken to a hospital for treatment, and induced into a coma and intubated. At both the accident scene and later at the hospital, Aguilar smelled of alcohol and exhibited symptoms consistent with drunkenness. The blood sample was taken at 5:42 a.m., about ninety minutes after the accident. And the testimony provided by the State was that a warrant would have taken at least four hours to obtain from the time the process began. As such, we find no Fourth Amendment violation and conclude that the trial court properly denied the motion to suppress.

B. Double Jeopardy Issue

We turn now to address Aguilar's argument that double jeopardy precludes his conviction under Counts II and IV. Aguilar was convicted of DUI Manslaughter (Count I), one count of DUI causing serious bodily injury (Count III), one count of DUI causing damage to property or person (Count V), and two counts of DUI (Counts II, IV). Aguilar contends that double jeopardy precludes his convictions under Counts II and IV. The State concedes that Aguilar is correct. See Art. I, § 9, Fla. Const. (double jeopardy clause); § 775.021(4)(b)(3), Fla. Stat. (2007) (codifying that defendants are not to be convicted of "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense"); Labovick v. State, 958 So.2d 1065, 1068 (Fla. 4th DCA 2007) (holding that DUI is a necessarily lesser-included offense of DUI manslaughter). Accordingly, based on the State's proper concession, we direct the trial court to vacate Aguilar's convictions for DUI (Counts II and IV).

III. CONCLUSION

Based on the totality of the circumstances, we affirm Aguilar's conviction and sentence for DUI Manslaughter, DUI causing seriously bodily injury, and DUI causing damage to property or person. We reverse and remand to the trial court however, to vacate Aguilar's convictions for DUI. We affirm as to all other issues without discussion.

Affirmed in part, reversed in part.

      Counsel for Aguilar conceded at oral argument that Appellant was not arguing or relying on a violation of Florida's implied consent law. Accordingly, the warrantless blood test was statutorily valid due to Aguilar's implied consent.

      The Court has also addressed blood tests under the search incident to arrest exception, Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), but that particular exception is not applicable here.

      We note that ninety minutes after the crash, Aguilar's blood test results showed a BAC of 0.112. Based on the testimony below, a warrant would have taken four hours to obtain. Assuming, in the light most favorable to Aguilar, that this meant four hours from the accident, it would have taken another two-and-a-half hours after the actual test result time to obtain the warrant, thus allowing Aguilar's BAC to continue dropping. More likely though, as the testimony suggests, the four hours would have begun running when the homicide detective arrived at the scene at approximately 5:30 a.m., over an hour after the accident, allowing Aguilar's BAC to continue dropping even further.

      We note that the case of State v. Liles, 191 So.3d 484, 488-89 (Fla. 5th DCA 2016), review denied, No. SC16-1096, 2016 WL 4245500 (Fla. Aug. 11, 2016), and review denied sub nom., Willis v. State, No. SC16-1118, 2016 WL 4247056 (Fla. Aug. 11, 2016), cert. denied, --- U.S. ----, 137 S.Ct. 688, 196 L.Ed.2d 528 (2017), is distinguishable from the instant case. In Liles, the Fifth District Court of Appeal declined to uphold warrantless blood searches based on exigent circumstances. Id. However, the Fifth District did so not on any legal ground relevant here, but because the State had failed to present sufficient evidence to the trial court that exigent circumstances existed even though it had the burden of doing so. See id. In the instant case, by contrast, the State met its evidentiary burden regarding the existence of exigent circumstances.


author: EMAS, J.

text:
    Allen CADET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1532
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Allen Cadet, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Allen Cadet appeals from an order denying his motion for additional jail credit, pursuant to Florida Rule of Criminal Procedure 3.801. We reverse in part and affirm in part.

Cadet's motion, filed in April 2017, raises two separate claims for additional jail credit. To the extent Cadet's motion sought an award of an additional twenty-one days of jail credit, representing the time he served in the Dade County jail from the date of his surrender (November 5, 2008), to the time he was transported to state prison on November 26, 2008, Cadet's motion is untimely under rule 3.801(b). We therefore affirm the trial court's order denying relief on this claim and do not reach the merits.

However, as to Cadet's second claim, seeking an additional 402 days of jail credit for time served in the Broward County Jail in 2013 and 2014, we reverse and remand. As to this claim, Cadet's motion alleges in relevant part:

Following his release from the incarcerative portion of his sentence in the instant case, Cadet began serving the probationary portion of his sentence. On January 22, 2013, while on probation, Cadet was arrested in Broward County for three new law violations. The next day, based upon this arrest in Broward County, a Miami-Dade County violation of probation warrant was issued for Cadet's arrest.

Cadet alleges that he was held in the Broward County Jail, without bond, on the violation of probation charges until February 27, 2014, at which time he was transferred to the Miami-Dade County Jail for proceedings on his violation of probation.

Thereafter, Cadet alleges, he was found to have violated his probation and, on March 11, 2015, the trial court revoked his probation and sentenced Cadet to eighteen years in prison with all credit for time served. Cadet alleges he was not given credit for any of the days he was held in the Broward County Jail.

Cadet asserts in his motion that he was entitled to credit for the time he was held in the Broward County Jail after issuance of the arrest warrant. However, Cadet has failed to allege whether or when the probation violation arrest warrant was transmitted to Broward County or executed on Cadet. The fact that Cadet was detained in Broward County (while awaiting disposition of his pending Broward County charges), and that an untransmitted and unexecuted arrest warrant for his violation of probation was issued, is insufficient to entitle Cadet to relief. Merely notifying the Broward authorities that a warrant had been issued, without transmission or execution of the warrant, acts as a "detainer" or "hold," which is an informal request for the Broward County Jail to either hold Cadet for pick up by Miami-Dade County authorities or to notify Miami-Dade County authorities when Cadet's release was imminent. It does not legally obligate the Broward County Jail to keep Cadet in its custody after his Broward County charges have been disposed of or he is otherwise released from custody on the Broward County charges. In addressing this issue, the Florida Supreme Court in Gethers v. State, 838 So.2d 504, 508 (Fla. 2003) recognized that "the filing of a detainer or a hold does not have the same effect as executing or transmitting an arrest warrant." The Gethers Court held that

absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.

Id. at 505. See also May v. State, 912 So.2d 326 (Fla. 3d DCA 2005). Under these circumstances, Cadet would not be entitled to jail credit in this case for the time he was held in the Broward County Jail. To be entitled to relief, Cadet must allege when the warrant was actually transmitted to Broward County or was executed on him, and must also allege that the Broward County law violations served as the sole basis for the trial court's revocation of Cadet's probation. Schlumpf v. State, 76 So.3d 406 (Fla. 2d DCA 2012) ; Maloy v. State, 984 So.2d 633 (Fla. 4th DCA 2008) ; Cooper v. State, 967 So.2d 928 (Fla. 1st DCA 2007) ; Kendrigan v. State, 941 So.2d 529 (Fla. 1st DCA 2006).

However, although Cadet's motion was insufficient on its face, the trial court should not have denied this claim on its merits, but instead should have entered a "nonfinal, nonappealable order allowing the defendant 60 days to amend the motion" to state a legally sufficient claim. See Fla. R. Crim. P. 3.850(e) ; Fla. R. Crim. P. 3.801(e) (expressly incorporating subdivisions (e), (f), (j), (k) and (n) of rule 3.850 ).

Therefore, we reverse and remand that portion of the trial court's order which denied this claim on its merits. The trial court shall enter an amended order allowing Cadet sixty days to amend to set forth a claim that is sufficient on its face and for further proceedings thereafter as may be appropriate.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

      See Fla. R. Crim. P. 3.801(b) (providing that "[n]o motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final"); In re Amendments to Fla. Rules of Crim. P. and Fla. Rules of App. P., 132 So.3d 734, 746-47 (Fla. 2013) (creating rule 3.801(b) and providing a one year grace period for sentences imposed before the effective date of the new rule: "For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014").

      Cadet fails to allege how long he was held in the Broward County Jail on these new charges, or the ultimate disposition of those new charges.

      Cadet later appealed this judgment and sentence. We affirmed, and the mandate issued on August 16, 2016. Therefore, as to this claim, Cadet's April 2017 motion was timely filed under rule 3.801(b).

      The only evidence of this is a CJIS computerized docket entry indicating "probation warrant issued: 1/23/2013 served 02/27/2014." However, the record does not contain a copy of the warrant or other document evidencing the date of its transmission or execution.

      To the extent we previously held (see, e.g., James v. State, 721 So.2d 1265 (Fla. 3d DCA 1998) ) that the mere issuance of an arrest warrant in one county would entitle a defendant to credit for the time he was held in jail in another county on other charges, such holding has implicitly been overruled by the Florida Supreme Court's decision in Gethers, 838 So.2d at 508, which requires that the warrant be transmitted to the other county or executed on the defendant.