author:
THOMAS, Judge.
      THOMPSON, Presiding Judge,

text:
    EX PARTE MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES. (In re Montgomery County Department of Human Resources v. A.S.N. and J.E.C.).
    2150651.
    Court of Civil Appeals of Alabama.
    July 8, 2016.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.
    Anita L. Kelly, respondent.
   THOMAS, Judge.

In Montgomery County Department of Human Resources v. A.S.N., 206 So.3d 661, 664 (Ala.Civ.App.2016), this court reversed the judgments of the Montgomery Juvenile Court, acting through Judge Anita Kelly (“the juvenile judge”), declining to terminate the parental rights of A.S.N. and J.E.C. (“the parents”) to their children and ordered that the juvenile judge terminate the parents’ parental rights. The parents did not seek rehearing of this court’s decision, and this court issued a certificate of judgment on May 3, 2016. On that same day, the juvenile judge entered judgments stating that the parental rights of the parents were terminated; however, the judgments did not include any factual findings and failed to award the Montgomery County Department of Human Resources (“DHR”) permanent legal custody of the children.

On May 5, 2016, DHR filed this petition for the writ of mandamus in which it seeks an order directing the juvenile judge to amend her judgments terminating the parents’ parental rights to include specific findings and to award DHR permanent legal custody of the children. In its petition, DHR argues that a juvenile court is required to “include in its judgment [terminating parental rights] a disposition as to the permanent legal custody of the children.” S.H. v. Macon Cty. Dep’t of Human Res., 195 So.3d 311, 313 (Ala.Civ.App.2015); see also Marshall Cty. Dep’t of Human Res. v. M.B., 176 So.3d 217, 219 (Ala.Civ.App.2015), overruled on other grounds by S.H., 195 So.3d at 314. DHR also argues, without citation to appropriate authority, that the juvenile judge should be ordered to make certain factual findings to support her judgments terminating the parents’ parental rights, including, for example, that reasonable efforts leading toward reunification of the family had been made by DHR and had failed.

The juvenile judge answered the petition, in part, by entering amended judgments specifically awarding permanent legal custody of the children to DHR. DHR responded to the answer, indicating that the entry of the amended judgments had not mooted its petition because, it contended, the juvenile judge had failed to make specific findings to support the termination-of-parental-rights judgments.

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court,” ’ ”

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

As noted above, the juvenile judge has amended the judgments terminating the parental rights of the parents to expressly award DHR permanent legal custody of the children, as required by Ala.Code 1975, § 12-15-320(b), which requires the juvenile court, once it has terminated parental rights, to place a child in the permanent legal custody of “the Department of Human Resources,” another “public or private licensed child-placing agency,” or the person who petitioned for the termination of parental rights, if that person is found to be a proper custodian. The juvenile judge’s amended judgments resolve the main issue presented by DHR’s petition. Therefore, as to that issue, we dismiss DHR’s petition as moot.

We note that the juvenile judge indicates in her answer that the failure to include in the judgments a provision awarding permanent legal custody of the children to DHR was not “deliberate, purposeful, or planned.” However, we would be remiss if we did not also note that the juvenile judge has, in the past, engaged in a pattern and practice of failing to comply with statutory requirements only to take steps to comply after DHR has filed a petition for the writ of mandamus with this court. In no less than five cases in the last year, DHR has sought this court’s intervention to direct the juvenile judge to comply with the time requirements set out in Ala.Code 1975, § 12-15~320(a), and to either set a termination-of-parental-rights trial or to enter a termination-of-parental-rights judgment. See Ex parte Montgomery Cty. Dep’t of Human Res. (No. 2150017, November 4, 2015), — So.3d - (Ala.Civ.App.2015) (table) (petition denied); Ex parte Montgomery Cty. Dep’t of Human Res. (No. 2150016, November 4, 2015), — So.3d - (Ala.Civ.App.2015) (table) (petition denied); Ex parte Montgomery Cty. Dep’t of Human Res. (No. 2140733, July 13, 2015), — So.3d - (Ala.Civ.App.2015) (petition denied); Ex parte Montgomery Cty. Dep’t of Human Res. (No. 2140734, July 8, 2015), — So.3d - (Ala.Civ.App.2015) (petition denied); and Ex parte Montgomery Cty. Dep’t of Human Res. (No. 2140735, July 6, 2015), — So.3d - (Ala.Civ.App.2015) (petition granted by unpublished order). All but one of those petitions had been mooted by the action of the juvenile judge upon her receipt of the petition; one petition was not mooted only because the juvenile judge thought that she required our permission or instruction to enter the requested termination-of-parental-rights judgment while the petition for the writ of mandamus was pending before this court. Deliberate or not, the juvenile judge’s continued neglect of her duty to comply with the statutorily prescribed time requirements and to enter proper and compliant judgments unless and until threatened with the supervisory action of this court causes the members of this court great concern.

We turn now to DHR’s second argument—whether the juvenile judge was required to make specific factual findings to support the judgments terminating the parental rights of the parents. We cannot agree with DHR that the juvenile judge was required to make such findings in her judgments. Our supreme court previously concluded that the former Alabama Child Protection Act, Ala.Code 1975, former § 26-18-1 et seq., did not require written findings of fact in a judgment terminating parental rights; the court also noted that this court had, in construing the same statute, indicated that “detailed findings in a termination order are preferable, but are not required.” Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993) (citing M.J.G.L. v. State Dep’t of Human Res., 587 So.2d 1004 (Ala.Civ.App.1991)). DHR has not provided, and this court cannot find, a provision in the now applicable Alabama Juvenile Justice Act, Ala. Code 1975, § 12-15-101 et seq., requiring that a termination-of-parental-rights judgment contain written findings of fact to support the judgment. Thus, DHR has not established that it has a clear legal right to the relief it seeks.

Because the juvenile judge has entered amended judgments awarding DHR permanent legal custody of the children at issue in the underlying causes, DHR’s petition insofar as it seeks that very relief is dismissed as moot. DHR’s petition insofar as it seeks an order directing the juvenile judge to include certain factual findings in her judgments terminating the parents’ parental rights is denied.

PETITION DISMISSED AS MOOT IN PART AND DENIED IN PART.

PITTMAN, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs specially.

THOMPSON, Presiding Judge,

concurring specially.

I agree with the main opinion that the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et. seq., Ala.Code 1975, does not require that a juvenile court make specific findings when entering a judgment terminating parental rights. However, I urge the legislature to amend the AJJA to require ■ such findings, as do the statutes of a number of other states. Termination-of-parental-rights actions affect the fundamental constitutional rights of parents. See, e.g., J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1198-1200 (Ala.Civ.App.2007) (Moore, J., concurring in the result); G.P. v. Houston Cty. Dep’t of Human Res., 42 So.3d 112, 122 (Ala.Civ.App.2009). Adding a requirement in the AJJA that termination-of-parental-rights judgements contain specific findings would serve to protect the fundamental rights of parents whose parental rights are at issue.

In this state, the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975, requires that a trial court make findings to support a workers’ compensation judgment in order to “ ‘ “ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.” ’ ” Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129 (Ala.Civ.App.2008) (quoting Farris v. St. Vincent’s Hosp., 624 So.2d 183, 185 (Ala.Civ.App.1993), quoting in turn Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala.Civ.App. 1985)). Such a requirement should be also imposed in termination-of-parental-rights actions subject to the AJJA, and an amendment to the AJJA imposing such a requirement should be simple and noncontroversial. A requirement that juvenile courts—charged with protecting our state’s most vulnerable children—make factual findings would also expedite appellate review, thereby decreasing the time in which children are before the courts and assist in assuring that the courts are operating to protect the best interests of the children that are before the courts.

However, this court is bound by the precedent of our supreme court, and given that court’s holding in Ex parte State Department of Human Resources, 624 So.2d 589, 593 (Ala.1993), I concur with the main opinion.

      . We realize that the juvenile judge has now entered final judgments in the underlying causes, that, as a result, DHR would have a remedy by way of appeal of those judgments, and, thus, that DHR is not entitled to a writ of mandamus on this issue. However, because we can easily address this issue and for purposes of judicial economy, we will consider this issue in this opinion instead of requiring that DHR file an appeal of the amended judgments to challenge the failure of the juvenile judge to include written findings in the judgments.

      . A number of states’ statutes require the entry of specific findings of fact before a court may terminate a parent's fundamental right to his or her child. See, e.g., Ariz.Rev.Stat. § 8-538.A. (“Every order of the court terminating the parent-child relationship or transferring legal custody or guardianship of the person of the child or providing for protective supervision of the child shall be in writing and shall recite the findings on which the order is based.Conn. Gen.Stat, Ann. § 45a-717(h) ("Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings...,”); Fla. Stat. § 39,809(5) (In an action involving the termination of parental rights, “[t]he judge shall enter a written order with the findings of fact and conclusions of law.”); Ga.Code Ann. § 15—11—320(b) ("The court’s order shall: (1) Contain written findings on which the order is based, including the factual basis for a determination that grounds for termination of parental rights exist and that termination is in the best interests of the child....”); Haw. Rev.Stat. § 571-63 ("No judgment of termination of parental rights entered under sections 571-61 to 571-63 shall be valid or binding unless it contains a finding that the facts upon which the petition is based bring the child within such sections and have been proved by the evidence and that the adjudication of termination of parental rights is necessary for the protection and preservation of the best interests of the child concerned and will facilitate the legal adoption of the child.”); Idaho Code § 16-2010(1) ("Every order of the court terminating the parent and child relationship or transferring legal custody or guardianship of the person of the child shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court's jurisdiction.”); Ind.Code § 31-35-2-8(c) ("The court shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b).”); Iowa Code § 232.117.1. ("After the hearing is concluded the court shall make and file written findings.”); Ky. Rev.Stat. Ann, § 625.090(6) ("Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either; (a) Terminating the right of the parent; or (b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.”); La. Child. Code Ann. art. 1037.B. ("When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues.”); Mo.Rev.Stat. § 211.477.5 (“Orders of the court ... shall recite the jurisdictional facts, factual findings on the existence of grounds for termination and that the best interests of the child are served by the disposition stated in the order.”); Nev.Rev.Stat. § 128.105.1. ("An order of the court for the termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106 to 128.109, inclusive, and based on evidence and include [specific] finding[s].”); N.H.Rev.Stat. Ann. § 170-C:11.I. ("Every order of the court terminating the parent-child relationship or transferring legal custody or guardianship of the person of the child shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court’s jurisdiction.”); 23 Pa. Cons.Stat. § 2513(d) ("After hearing, which may be private, the court shall make a finding relative to the pertinent provisions of section 2511 (relating to grounds for involuntary termination) and upon such finding may enter a decree of termination of parental rights.”); 15 R.I. Gen. Laws § 15-7-7.1 (“The court shall make findings of fact and conclude all hearings on petitions for termination of parental rights within one hundred eighty (180) days after notice to the natural parents has been effectuated.”); and Tenn.Code Ann. § 36—1—113(k) ("The court shall enter an order [terminating parental rights] that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the hearing.”); see also In re T.T.S., 373 P.3d 1022, 1030 (Okla.2015) (“For the same reasons set out herein above, we conclude that in future proceedings initiated under 10A O.S. 2011 § 1-4~904(B)(5), a final order terminating parental rights shall identify the precise conditions the parent failed to correct.”).


source: Caselaw Access Project

author: BURKE, Judge. KELLUM, Judge,

license: Public Domain

text:
    Mesiah ABERCROMBIE v. STATE of Alabama.
    CR-13-0125.
    Court of Criminal Appeals of Alabama.
    June 13, 2014.

      Mesiah Abercrombie, pro se.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BURKE, Judge.

Mesiah Abercrombie pleaded guilty to first-degree robbery, a violation of § 13A-8-41(a)(l), Ala.Code 1975, and was sentenced as a habitual felony offender to life imprisonment without the possibility of parole. Abercrombie filed a motion to withdraw his guilty plea, which the trial court denied. This Court affirmed the trial court’s denial of Abercrombie’s motion in Abercrombie v. State, (CR-10-1485, March 9, 2012) 130 So.3d 585 (Ala.Crim.App.2012) (table). On May 13, 2013, Abercrombie filed a timely petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. After a response from the State, the circuit court summarily denied the petition. This appeal follows.

In his petition, Abercrombie claimed, among other things, that he received incorrect advice from trial counsel regarding the effect of his guilty plea. Specifically, Abercrombie asserted that his guilty plea “was fatally infected by ... his trial counsel’s telling him that he would get a sentence of 20 years split to serve 5 years but that if he took his case to trial and lost, he would get life without the possibility of parole.... ” (C. 25.) Abercrombie contended that counsel’s advice was erroneous and that it constituted ineffective assistance of counsel. Therefore, he argued, his plea was not entered with effective assistance of counsel.

To prevail on an ineffective-assistance-of-counsel claim, a petitioner must show that his counsel’s performance was deficient and that counsel’s deficient performance prejudiced him. See Brown v. State, 663 So.2d 1028 (Ala.Crim.App.1995), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “When an appellant’s claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant’s establishing ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Culver v. State, 549 So.2d 568, 572 (Ala.Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

As to the deficient-performance prong of Strickland, Abercrombie alleged that trial counsel told him that the trial court had the discretion to impose a 20-year sentence and to split the sentence so that Abercrombie would serve 5 years. A review of the record from Abercrombie’s guilty-plea hearing reveals that this advice was based on counsel’s assumption that the trial court could deviate from the Habitual Felony Offender Act (“HFOA”) and sentence Abercrombie under Alabama’s voluntary-sentencing standards. The voluntary-sentencing standards are set out in § 12-25-1 et seq., Ala.Code 1975. Section 12-25-34.1, Ala.Code 1975, provides:

“The initial voluntary sentencing standards and the accompanying worksheets and instructions, as adopted by the Sentencing Commission on September 30, 2005, and filed with the Clerk of the Supreme Court, the Secretary of the Senate, and the Clerk of the House of Representatives, are approved for implementation effective on October 1, 2006, under the terms and conditions set out in Sections 12-25-34 and 12-25-35..,

Paragraph 17 of the Initial Sentencing Standards: Instructions and Worksheets provides that the sentencing standards “do not apply to mandatory life without parole sentences [imposed] pursuant to the” HFOA.

A review of the record from Abercrombie v. State (CR-10-1485, March 9, 2012), 130 So.3d 585 (Ala.Crim.App.2012) (table), reveals that Abercrombie had three prior felonies, one of which was drug trafficking, a Class A felony. See § 13A-12-231(13), Ala.Code 1975. Therefore, Abercrombie was subject to sentencing under § 13A-5-9(c)(4), Ala.Code 1975, which provides:

“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
“(4) On conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony, he or she must be punished by imprisonment for life without the possibility of parole.”

Thus, Abercrombie was subject to a mandatory life-without-parole sentence and was consequently ineligible to be sentenced under the voluntary-sentencing standards. Accordingly, trial counsel’s assertion that Abercrombie could potentially receive a 20-year split sentence was incorrect.

“To meet the first prong of the [Strickland ] test, the petitioner must show that his counsel’s representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel’s assistance was reasonable, considering all the circumstances.” Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). In the present case, it appears that trial counsel gave Abercrombie erroneous advice regarding the possible outcome of his guilty plea. A reading of the above-mentioned statutes as well as the Initial Sentencing Standards: Instructions and Worksheets would have informed trial counsel that the only possible sentence for Abercrombie was life imprisonment without the possibility of parole.

We also note that the trial court seemed to be under the impression that it was allowed to sentence Abercrombie under the voluntary-sentencing standards. During the guilty-plea colloquy, the trial court explained that, under the HFOA, Aber-crombie would be sentenced to life imprisonment without the possibility of parole. However, the judge then stated:

“But then as an alternative to [the HFOA] there is another statute that says—there is a new range of punishment called the sentencing standards. Now, the sentencing standards do not apply to every crime but they do apply to most crimes and they loill apply here as a sentencing standard that says I can apply a range of punishment set out in that law that says you could serve 156 months in the penitentiary as a minimum up to 1,020 months.”

(Rl. 19)(emphasis added). Nevertheless, trial counsel should have been aware that Abercrombie was ineligible for sentencing under the voluntary-sentencing standards and that any sentence other than life imprisonment without the possibility of parole would have been an illegal sentence.

It also appears that Abercrombie was prejudiced by trial counsel’s erroneous advice. Although Abercrombie entered a blind plea, he did so with the assumption that the trial court had the discretion to impose a lesser sentence than it could actually impose. Had Abercrombie known that his guilty plea would definitely result in a sentence of life imprisonment without parole, there is a reasonable probability that he would have elected to go to trial.

“The standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition.” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). “ ‘ “ ‘A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.’ ” ’ ” Hodges v. State, 926 So.2d 1060, 1072 (Ala.Crim.App.2005), quoting State v. Jude, 686 So.2d 528, 530 (Ala.Crim.App.1996), quoting in turn Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 12 (Ala.1979), quoting in turn Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225 (9th Cir.1975). In the present case, Aber-crombie asserted facts that, if true, would entitle him to relief. See Rule 32.3, Ala. R.Crim. P. Accordingly, the circuit court abused its discretion by summarily denying Abercrombie’s petition. Abercrombie should be allowed to prove his claims at an evidentiary hearing or through other means as provided in Rule 32.9(a), Ala. R.Crim. P. (“The court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing,.,. ”).

We note that Abercrombie raised additional issues in his petition. However, based on our resolution of his ineffective-assistance-of-counsel claim, we need not address those issues at this time.

For the foregoing reasons, this case is remanded for proceedings consistent with this opinion. Due return shall be made to this Court within 42 days from the date of this opinion,

REMANDED WITH INSTRUCTIONS.

WELCH and JOINER, JJ., concur.

KELLUM, J., dissents, with opinion.

WINDOM, P.J., joins in dissent.

KELLUM, Judge,

dissenting.

Mesiah Abercrombie, through counsel, filed his Rule 32, Ala. R.Crim. P., petition for postconviction relief on May 16, 2013. On July 15, 2013, Abercrombie’s counsel submitted documentary evidence to support two of the claims in the petition. On or about July 17, 2013, the State filed a motion requesting that the circuit court, pursuant to Rule 32.9(d), Ala. R.Crim. P., accept documentary evidence on Aber-crombie’s petition in lieu of conducting an evidentiary hearing. On or about July 18, 2013, the State filed a response and motion to dismiss Abercrombie’s petition, arguing that Abercrombie failed to state a claim for relief, that all of Abercrombie’s claims were precluded by Rules 32.2(a)(2), (a)(3), (a)(4), and/or (a)(5), and that Abercrom-bie’s claims of ineffective assistance of counsel were precluded by Rule 32.2(d), and the State requested summary dismissal of Abercrombie’s petition. The State also argued that Abercrombie’s claims of ineffective assistance of counsel were mer-itless. The State attached to its response a copy of this Court’s unpublished memorandum affirming Abercrombie’s conviction and sentence as well as subpoena-request forms filed by Abercrombie’s trial counsel before the hearing on Abercrom-bie’s motion to withdraw his plea.

On July 19, 2013, the circuit court issued an order granting the State’s request to permit submission of documentary evidence pursuant to Rule 32.9(d) in lieu of conducting an evidentiary hearing on Abercrombie’s petition. Over the next two months, however, neither party submitted any additional documentary evidence supporting their respective positions. On September 19, 2013, the circuit court issued an order denying Abercrombie’s petition, and making specific findings of fact that one of Abercrombie’s claims was precluded and that the remaining claims were meritless.

The majority remands this case to the circuit court for it to allow Abercrombie an opportunity to present evidence to prove the claim in his petition that his guilty plea was involuntary and that his trial counsel was ineffective because, Abercrombie said, his counsel misrepresented to him that if he pleaded guilty he would receive a sentence of 20 years’ imprisonment, which sentence would be split and he would serve 5 years in confinement. However, Aber-crombie has already had the opportunity to present evidence in support of that claim, as well as the other claims in his petition. Rule 32 petitioners are not entitled to multiple opportunities to prove postconviction claims. Because Abercrom-bie has already been given the opportunity to present evidence to support his claims, the only issue before this Court is whether Abercrombie proved his claims by a preponderance of the evidence. I do not believe that he did. Therefore, I respectfully dissent.

      . “Rl” denotes the record on appeal from Abercrombie v. State (CR-10-1485, March 9, 2012), 130 So.3d 585 (Ala.Crim.App.2012) (table). This Court may take judicial notice of its own records. Hull v. State, 607 So.2d 369 (Ala.Crim.App.1992).

      . As Judge Kellum notes in her dissent, the circuit court issued an order granting the State's request to permit submission of documentary evidence pursuant to Rule 32.9(a), Ala. R.Crim. P., in lieu of conducting an evi-dentiary hearing on Abercrombie’s petition. However, the order did not specify a time frame in which the evidence was to be submitted. We also note that Rule 32.9(a) permits the circuit court to hold an evidentiary hearing in addition to receiving documentary evidence.

       Note from the reporter of decisions: On January 30, 2015, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.

      . Because Abercrombie’s petition was filed by counsel, Abercrombie was not entitled to the benefit of the "mailbox rule” and his petition was deemed filed the date it was stamped as filed by the circuit clerk’s office, not the date Abercrombie dated the petition.

      .Counsel submitted Abercrombie's medical records from the Jefferson County jail, Aber-crombie’s medical records from the Alabama Department of Corrections, and Abercrom-bie's school records. These documents were relevant to Abercrombie’s claim in his petition that his guilty plea was involuntary because, he said, at the time he entered his plea he suffered from "a diminished mental capacity exacerbated by use of controlled substances which rendered him unable to comprehend the proceedings and what he was doing.” (C. 8.) I note that this claim was also raised in Abercrombie’s motion to withdraw his guilty plea and decided adversely to him by the trial court and by this Court on direct appeal. Abercrombie’s evidentiary submissions were also relevant to Abercrombie’s claim that his counsel was ineffective during the proceedings on his motion to withdraw his plea for not obtaining his medical and school records in order to support the motion to withdraw the plea.

      . I note that the State’s request for summary dismissal was inconsistent with its July 17, 2013, motion asking the circuit court to accept evidentiary submissions in lieu of conducting an evidentiary hearing on Abercrom-bie's petition. By requesting in its July 17, 2013, motion that the circuit court accept evidentiary submissions on Abercrombie’s claims in lieu of conducting an evidentiary hearing, the State necessarily conceded that Abercrombie’s claims were not precluded, that they were sufficiently pleaded, and that, if true, they would entitle Abercrombie to relief, and, thus, that Abercrombie was enti-tied to an opportunity to prove his claims. See, e.g., Moore v. State, 502 So.2d 819, 820 (Ala. 1986), and Ex parte Boatwright, 471 So.2d 1257, 1258-59 (Ala. 1985) (a postcon-viction petitioner is entitled to an opportunity to present evidence to support his claims only if they are meritorious on their face, i.e., only if they are not precluded, are sufficiently pleaded, and if true, would entitle the petitioner to relief). In other words, the State conceded that summary dismissal of Aber-crombie’s petition was not appropriate. Although this Court is not bound by the State’s concession, the State should be mindful of asserting inconsistent and contradictory arguments.


author: EELLUM, Judge.

text:
    Charles David INGMIRE v. STATE of Alabama.
    CR-14-1447.
    Court of Criminal Appeals of Alabama.
    June 3, 2016.
    Rehearing Denied July 29, 2016.
    Jason Robert Eubanks, Slocumb, for appellant.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   EELLUM, Judge.

The appellant, Charles David Ingmire, was convicted of theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975, and receiving stolen property in the second degree, a violation of § 13A-8-18, Ala-Code 1975. The circuit court sentenced Ingmire to 84 months’ imprisonment for each conviction and ordered that the sentences were to run concurrently. The sentences were split, and Ingmire was ordered to serve 6 months in jail followed by 49 months’ unsupervised probation. For each conviction, the circuit court ordered Ingmire to pay a $1,000 fíne, $100 to the crime victims’ compensation fund, $1,200 in restitution, and court costs.

The record indicates the following pertinent facts. Chris Lee, a service technician for Mike Schmitz’s Auto Group—a Mercedes and Hyundai dealership—testified that he was looking for an all-terrain vehicle (i.e., a “four-wheeler”) and found one advertised for sale on Craigslist, an Internet buy-sell forum. Lee sent a text message to the telephone number listed in the advertisement, and the seller responded that the vehicle was still available but indicated that it would be sold soon. Lee and a coworker traveled to an address provided by the seller to purchase the four-wheeler. At the address, Lee encountered Ingmire and his girlfriend. Lee examined the four-wheeler and agreed to purchase it for $2,400 in cash. According to Lee, this was a reasonable price for that type of four-wheeler, given that the Kelly Blue Book value of that model four-wheeler was $2,600. Lee requested a bill of sale, and Ingmire’s girlfriend went inside and drafted one on a piece of paper. The bill of sale stated “I James Wheeler sold a [HJonda TRX-450R-JH2TE32486K00395 to Chris Lee” and was signed by “James "Wheeler” and Lee; Lee’s coworker signed as a witness. (C. 51.) At trial, Lee testified that Ingmire was the person who identified himself as James "Wheeler when Lee purchased the four-wheeler.

Lee loaded the four-wheeler into the back of his truck and returned home. It was dark when Lee arrived at his home, so he left the four-wheeler in his truck overnight. The next morning, Lee drove to work and began examining the four-wheeler. Lee testified that he became suspicious after he noticed that the key did not look like any other four-wheeler key he had ever seen and he noticed that the wires on the vehicle had been cut and tied together. Later that evening, Lee traveled to the Taylor Police Department and asked if he could have the vehicle-identification number checked. An officer with the Taylor Police Department advised Lee to contact the Geneva County Police Department because the four-wheeler had been purchased in Geneva County. Afterward, Lee contacted Geneva County law enforcement and reported the incident. Police officers determined that the four-wheeler had been stolen. Afterward, a police officer from Geneva County arrived at Lee’s residence and “filled out paperwork” before a tow truck picked up the four-wheeler.

A few days later, Ramone Bruner, an officer with the Geneva County Sheriffs Department, contacted Lee and asked Lee to take him to the location where he purchased the four-wheeler. "When Lee, Officer Bruner, and another deputy arrived at the residence, Ingmire’s girlfriend denied ever having seen Lee before and denied ever having a four-wheeler; she said that Ingmire was not present at the residence at that time, but Lee could hear the children inside saying “Daddy, Daddy.” (R. 57.)

Officer Bruner testified that the other deputy who accompanied him indicated that James Wheeler was a “big-time farmer over in the Samson area” and did not live at the residence where the four-wheeler was sold. Officer Bruner later determined that Ingmire lived at the residence and developed him as a suspect in the theft. Officer Bruner testified that he recalled that the four-wheeler in this case was first reported stolen from Escambia County. Officer Bruner contacted Zachary Seamans, the owner of the four-wheeler, and Seamans traveled to Geneva County to reclaim it. When Seamans reclaimed the four-wheeler, he provided documentation to establish that he was the rightful owner.

Doris Akin testified that she helped her uncle manage an RV park in Samson. Akin testified that a woman named Hayley Pilgrim and a man named Charles, whom she identified as Ingmire in court, contacted Akin and asked to look at a residence in the park. Akin assumed that the man named Charles was Pilgrim’s husband because her kids called him “Daddy.” (R. 67.) Akin testified that after Ingmire and his family moved into one of the residences, she saw the children riding a red four-wheeler. When police officers came to speak with her and asked whether she had seen a red four-wheeler, Akin answered that the neighbors had one. The day after the police came and questioned Akin, Ingmire and his family left “in the middle of the night.” (R. 68.) Because she was told to notify the police if she saw Ingmire or his family return to their residence, Akin telephoned the sheriffs department on two different occasions when they returned. After learning that Ing-mire had two children, Officer Bruner received information from their school that allowed him to locate Ingmire and to take him into custody.

After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Ingmire guilty of theft of property in the second degree and of receiving stolen property in the second degree. This appeal followed.

Ingmire contends that the circuit court erred when it allowed hearsay evidence from Officer Bruner. Specifically, Ingmire argues that Officer Bruner’s testimony regarding (1) “a [National Crime Information Center (NCIC) ] report out of Florida of a stolen four-wheeler” and (2) a property receipt that indicated “that [Officer Bruner] returned the four-wheeler to Sea-mans” was impermissible hearsay. (Ing-mire’s brief, p. 23-24.)

The record indicates that the parties engaged in a discussion with the circuit court regarding Officer Bruner’s expected testimony. The prosecutor summarized Officer Bruner’s testimony and indicated that defense counsel “was wanting to object to all of that on the grounds of hearsay.” (R. 81.) Afterward, the parties entered into a lengthy discussion regarding whether the statements from the NCIC police report that the four-wheeler was stolen were, in fact, hearsay. (R. 80-89.) At the end of the discussion, defense counsel said: “I’ll renew my objection at [the point when the hearsay is introduced], but I’d also like a continuing objection on that as well.” (R. 89.) The circuit court stated that the objection “will be noted.” (R. 89.)

During Officer Bruner’s testimony, the State asked him: “[D]o you recall where the four-wheeler was first reported stolen from?” and Officer Bruner replied “Es-cambia County.” (R. 95.) Defense counsel did not object. The prosecutor then asked Officer Bruner if he was able to “make contact with the person that had reported the four-wheeler stolen.” (R. 95.) Again, without objection from defense counsel, Officer Bruner answered that he was given Seamans’s name and contacted him to return the four-wheeler. Officer Bruner testified that Seamans came to Geneva County and reclaimed the four-wheeler. The prosecutor then presented Officer Bruner with a receipt from the Geneva County Sheriffs Department that indicated that the four-wheeler was returned to Seamans. Defense counsel renewed his objection, and the circuit court overruled the objection. After showing Officer Bruner the document, the following discussion occurred:

“[Prosecutor]: Can you identify that document?
“[Officer Bruner:] Yes, sir.
“[Prosecutor]: And what is that document?
“[Officer Bruner:] This is a receipt from the Sheriffs department turning over the four-wheeler back to Mr. Zachary Ray Seamans.
“[Prosecutor]: And is your signature on that document?
“[Officer Bruner:] Yes, sir.
“[Prosecutor]: Okay. And is—are you the one that prepared the document?
“[Officer Bruner:] Yes, sir,
“[Prosecutor]: Is the person you turned the property over to’s signature on the document?
“[Officer Bruner:] Yes, sir.
“[Prosecutor]: Okay. Did Mr. Sea-mans provide you with documentation that established that he was the rightful owner of the four-wheeler?
“[Officer Bruner:] Yes, he did.”

(R. 95-96.) Defense counsel finally asked to renew his objection and the circuit court overruled the objection. Afterward, the prosecutor introduced the property receipt indicating that Seamans was the owner of the property, that Seamans collected the four-wheeler, and that the suspects in the case were Pilgrim and Ingmire.

Regarding the admission of the property receipt into evidence, we question whether Ingmire’s brief complies with Rule 28, Ala. R.App. P. Rule 28(a)(10), Ala. R.App. P., requires that an argument contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Ingmire’s argument regarding the introduction of the property receipt into evidence contains no citations to legal authority as required by Rule 28(a)(10). “[W]e are not required to consider matters on appeal unless they are presented and argued in brief with citations to relevant legal authority.” Zasadil v. City of Montgomery, 594 So.2d 231, 231 (Ala.Crim.App.1991). “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). “Failure to comply with Rule 28(a)(10) has been deemed a waiver of the issue presented.” C.B.D. v. State, 90 So.3d 227, 239 (Ala.Crim.App.2011). Because this argument fails to comply with Rule 28(a)(10), it is waived and, thus, not properly before this Court for review.

We now address Ingmire’s contention that the NCIC report was inadmissible hearsay. “The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. “Hearsay is not admissible except as provided by [the Alabama Rules of Evidence], or by other rules adopted by the Supreme Court of Alabama or by statute.”

In the instant case, we conclude that Officer Bruner’s testimony regarding the information he received from the NCIC report was, by definition, hearsay. It was a statement made out of court and offered to prove the fact that the property in question was stolen. Although the statement was, in fact, hearsay, it could still be admissible if it fit within any exception to the hearsay rule.

Rule 803(6), Ala. R. Evid., the business-records exception, provides that the following are not excluded by the hearsay rule:

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

Although Alabama courts have addressed the admissibility of police reports, we have been unable to locate any Alabama case addressing whether NCIC police reports fall within any of the hearsay exceptions—specifically the business-records exception. However, a number of other jurisdictions have addressed this issue with mixed results. For example, in Cooper v. Com. 54 Va.App. 558, 571 680 S.E.2d 361, 368 (2009), the Virginia Court of Appeals held that an NCIC report confirming that a gun discovered in a defendant’s possession had been reported as stolen was admissible under the business-records exception to the hearsay rule. In Cooper, when the prosecutor attempted to present an NCIC report showing that a shotgun recovered from the defendant was reported stolen, the defendant objected on hearsay grounds. 54 Va.App. at 564, 680 S.E.2d at 364. An officer testified that he reported the serial number on the gun to a dispatcher, who confirmed that the NCIC database indicated the gun had been stolen. 54 Va.App. at 568, 680 S.E.2d at 366. Subsequently, a printed copy of the NCIC report was obtained. 54 Va.App. at 569, 680 S.E.2d at 366.

The Virginia Court of Appeals held that, even though a person with personal knowledge of the facts entered into the NCIC database had not testified, admission of the NCIC report under the business-records hearsay exception was proper because “ ‘evidence show[ed] the regularity of the preparation of the records and reliance on them by their preparers or those for whom they are prepared.’ ” 54 Va.App. at 568, 680 S.E.2d at 366 (quoting Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 279-80 (1986)(upholding admission of NCIC report identifying defendant as escapee)). See also State v. Sneed, 210 N.C.App. 622, 631, 709 S.E.2d 455, 462 (2011) (holding that the admission of NCIC printouts under the hearsay exception for records of a regularly conducted business activity was not plain error).

Other jurisdictions, however, have determined that the content of NCIC reports did not fall within the business-records exception—or any other exception— to the hearsay rule. See Harveston v. State, 798 So.2d 638, 641 (Miss.Ct.App.2001) (holding that information contained in NCIC computer printouts was not admissible to establish vehicle ownership under the business-records exception where only testimony came from an investigating officer who limited his testimony to the fact that law-enforcement officers routinely make use of such information, but no evidence was offered showing how registration information on motor vehicles was compiled and made available by computer connection to law enforcement so as to demonstrate necessary indications of trustworthiness as a business record); Singleton v. State, 948 So.2d 465, 470-71 (Miss.Ct.App.2007)(holding that NCIC report did not meet the public-records hearsay exception); State v. Buck, 670 S.W.2d 600, 607-08 (Tenn.1984)(stating that information in NCIC reports is pure hearsay of a dubious degree of accuracy, prepared for purposes other than court use, contains information that is likely to be prejudicial under all circumstances, and is not the best evidence of matters that can be proven by reliable, documentary evidence); United States v. Long, 578 F.2d 579, 581 (5th Cir.1978)(holding that an NCIC report is hearsay and does not fall within the Federal Business Records Act or any other recognized exception to the hearsay rule); Commonwealth v. Travaglia, 541 Pa. 108, 131, 661 A.2d 352, 363 (1995)(ap-proving trial court’s refusal to admit NCIC printout where proponent failed to establish proper basis for admitting such under the business-records exception).

In the instant case, we cannot say that Officer' Bruner’s testimony fell within any of the exceptions to the hearsay rule. Although the information in an NCIC report could very well be admissible in future cases, there was no evidence in this case to show that the information within the report fell within the business-records exception—or any other exception—to the hearsay rule. Officer Bruner did not testify regarding the regularity of the preparation of the NCIC reports. Furthermore, there was no evidence to show that the NCIC reports were regularly relied on by the Geneva County Sheriffs Office. See Cooper, supra. In fact, there was no testimony in this case to establish that the information within the NCIC report was trustworthy. Thus, we hold that the circuit court erred when it allowed Officer Bruner to testify regarding information that he learned from the NCIC report.

Although the admission of the information learned from the NCIC report was improper, we must now determine whether the admission of this evidence constituted harmless error. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire case, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

We have stated:
“In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before a federal constitutional error can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court explained:
“Tn determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the “improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,” and before the reviewing court can affirm a judgment based upon the “harmless error” rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.’
630 So.2d at 126. See also Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993)(holding that the proper harmless-error inquiry asks—absent the improperly introduced evidence, ‘is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?’).”

Grade v. State, 92 So.3d 806, 813 (Ala.Crim.App.2011).

In the instant case, we cannot say that the admission of Officer Bruner’s NCIC testimony was harmless beyond a reasonable doubt. Each of the charges against Ingmire required the State to prove that the four-wheeler was, in fact, stolen, and the only testimony that the four-wheeler was actually stolen was Officer Bruner’s impermissible hearsay. Accordingly, we must reverse Ingmire’s convictions for theft of property in the second degree and receiving stolen property in the second degree.

Based on the foregoing, the judgment of the circuit court is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH and BURKE, JJ., concur.

JOINER, J., concurs in the result.

      . Because we are reversing the circuit court’s judgment for the reasons discussed above, we pretermit discussion of Ingmire's remaining arguments on appeal.


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author: May, J.

text:
    Giordanier TOUSSAINT, Appellant, v. CITY OF FORT LAUDERDALE, Appellee.
    No. 4D16-2505
    District Court of Appeal of Florida, Fourth District.
    [April 5, 2017]
    Michael J. Rocque, Fort Lauderdale, for appellant.
    Cynthia A. Everett, City Attorney, and Bradley H. Weissman, Assistant City Attorney, Fort Lauderdale, for appellee.
   May, J.

Giordanier Toussaint is the father of a defendant in a pending criminal matter. He claims to be the purported owner of property, and appeals a probable cause order in a forfeiture proceeding. He claims that $10,000.00 of the $11,388.00 recovered during the execution of a search warrant belongs to him. The City alleged the monies were proceeds from drug trafficking. The father argues the trial court erred in not definitively ruling on his standing, and in failing to address his motions to disclose the confidential informant and suppress evidence. We agree and reverse.

The funds were seized after the City was contacted by a confidential informant (“Cl”) who advised that a black male known as “Amp” was actively purchasing trafficking amounts of powder cocaine, converting it into crack, and reselling it from within his residence. Law enforcement identified the defendant as “Amp.”

The City conducted two controlled buys between the defendant and the Cl, during which the defendant’s mother was present. Thereafter, law enforcement obtained a search warrant. They found drugs, paraphernalia, and cash in the defendant’s bedroom. They also found drugs in the mother’s bedroom. Law enforcement found a firearm and a bag containing $10,000.00 in her closet. According to law enforcement, the currency was wrapped in “quick count” bundles.

The City filed a verified complaint for probable cause and order for forfeiture, as well as an affidavit of probable cause. The mother filed a notice of claim staking an interest in the property seized. She later amended her notice of claim to reflect that the defendant’s father had a legal interest in the property as well.

An adversarial probable cause hearing was set. Before the matter was heard, the mother and father filed a motion to disclose the confidential informant and a motion to suppress the evidence found in the home and statements made by the defendant. They also moved for a return of the $10,000.00. Only the father attended the hearing.

The City disputed the father’s standing to challenge the forfeiture because he was not mentioned in the verified complaint nor in the probable cause affidavit, and was not present during the controlled buys. Velez v. Miami-Dade Police Dep’t., 934 So.2d 1162 (Fla. 2006); Chuck v. City of Homestead Police Dep’t, 888 So.2d 736 (Fla. 3d DCA 2004). The City argued the father’s motion to suppress was beyond the scope of the preliminary adversarial hearing.

The court equivocated on the factual issue of standing, but permitted the father to proceed with the hearing. The court then entered an order finding probable cause to link the funds to the defendant’s criminal activity. In doing so, the court deferred ruling on the motion to suppress, leaving it for the judge who would ultimately preside over the forfeiture case.

The Fourth Amendment applies to forfeiture proceedings, and evidence obtained in violation must be excluded from the probable cause determination at the adversarial preliminary hearing. Golon v. Jenne, 739 So.2d 659, 661 (Fla. 4th DCA 1999). “Indeed, longstanding precedent provides that evidence derived from a search in violation of the Fourth Amendment must be excluded at a hearing determining whether the government has probable cause for forfeiture.” Id.

The City contends that any error in not ruling on the motions was harmless because the father’s motion was grounded solely on the reliability and supervision of the Cl, whose identity was unknown to him. However, also pending was the father’s motion to obtain the Cl’s identity. The trial court erred when it failed to consider these motions before ruling on probable cause. We reject the City’s harmless error argument.

The case is remanded for the trial court to revisit the father’s claim after it addresses the outstanding motions.

Reverseé and remanded for proceedings consistent with this opinion.

Warner and Klingensmith, JJ., concur.


author: Damoorgian, J.

text:
    DYCK-O’NEAL, INC., Appellant, v. Trevor MEIKLE, Appellee.
    No. 4D15-3911
    District Court of Appeal of Florida, Fourth District.
    [April 5, 2017]
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for appellant.
    No appearance for appellee.
   Damoorgian, J.

Appellant, Dyck-O’Neal, Inc. (“DONI”), filed suit to recover a deficiency judgment against Trevor Meikle. The trial court granted final summary judgment in Mei-kle’s favor. DONI appeals the summary judgment. We reverse.

DONI made the following allegations in its complaint, which was personally served on Meikle. Meikle owned a residence that was subject to a mortgage. After Meikle defaulted on his mortgage, the holder of the note and mortgage sued and obtained a final judgment of foreclosure. The judgment contained the following language:

Jurisdiction of this action is retained to enter further orders as are proper including without limitation, deficiency-judgments, except where discharge is applicable or where service of process was not personally obtained.

The residence was sold at a judicial sale. The proceeds of the sale were insufficient to satisfy the amount of the judgment. Thereafter, DONI obtained the right to pursue the deficiency against Meikle by assignment of the final judgment.

After filing an answer to DONI’s complaint, Meikle filed a motion for summary judgment in which he argued that based on the language of the foreclosure judgment, the court lacked jurisdiction to enter a deficiency judgment against him because he was served with the original foreclosure complaint by publication. In a tersely worded order, the trial judge granted Mei-kle’s motion, ruling:

The underlying foreclosure judgment was obtained after service through publication. Plaintiff seeks to use that judgment to obtain a money deficiency judgment pursuant to Florida Statute 702.06 which is both vague and a violation of due process.

The court’s ruling was incorrect on all accounts. First, the fact that Meikle was served by publication in the foreclosure action did not prevent the court from acquiring personal jurisdiction via personal service over Meikle in DONI’s deficiency action. On this issue, our opinion in NCNB National Bank of Florida v. Pyramid Corp., 497 So.2d 1353, 1354 (Fla. 4th DCA 1986) is directly on point. There, a mortgagee brought a foreclosure lawsuit against a borrower, but was unable to personally serve the borrower. Id. Instead, the mortgagee acquired in rem jurisdiction via service by publication. Id. Ultimately, the mortgagee obtained a final judgment of foreclosure. Id.

Thereafter, the mortgagee filed a separate lawsuit seeking a deficiency judgment against the borrower. Id. This time, the mortgagee personally served the borrower. Id. After initially entering a deficiency judgment in the mortgagee’s favor, the trial court set aside the judgment as void based on its finding that it lacked personal jurisdiction over the borrower since he was not personally served in the underlying foreclosure action. Id. We reversed, holding that the deficiency court had personal jurisdiction over the borrower by virtue of the fact that the borrower was personally served in the deficiency action. Id. at 1355. Likewise, the court here had personal jurisdiction over Meikle.

Second, the court also incorrectly found that section 702.06 was unenforceable because it was “vague and a violation of due process.” Section 702.06 provides in pertinent part:

In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court; however, in the case of an owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment amount, or in the case of a short sale, the outstanding debt, and the fair market value of the property on the date of sale. ... The complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.

§ 702.06, Fla. Stat. (2014) (emphasis added).

We have recently held that section 702.06 is “unambiguous” and permits a separate suit to recover a deficiency where the foreclosure court did not grant or deny a claim for a deficiency judgment. Cheng v. Dyck-O’Neal, Inc., 199 So.3d 932, 932 (Fla. 4th DCA 2016). See also Dyck-O’Neal, Inc. v. McKenna, 198 So.3d 1038, 1039 (Fla. 4th DCA 2016). Accordingly, the court erred in finding to the contrary.

Reversed and remanded.

May and Conner, JJ., concur.


author: THOMAS, M.K., J.,

text:
    BRIGHTHOUSE NETWORKS/ESIS WC Claims/New Hampshire Insurance Co. Appellants, v. Helen YOHN-WEINSTEIN Appellee.
    CASE NO. 1D16-4189
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017.
    Wanda M. Reas and Gerald F. Znosko of Znosko & Reas, P.A., Orlando, for Appellants,
    Laurie T. Miles of Miles and Parrish, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
    ROWE and RAY, JJ., CONCUR. M.K. THOMAS, J., CONCURS WITH OPINION.
   THOMAS, M.K., J.,

concurs with opinion.

I agree with the disposition on the merits. However, I write to clarify that, under these facts, rule 9.310(f), Florida Rule of Appellate Procedure, is not the correct procedural vehicle to secure review of the Judge of Compensation Claims’ order denying a stay of proceedings.

Appellant filed a Motion for Review of the JCC’s order denying its motion to stay proceedings. The motion acknowledged that a prior final merits order of the JCC in this case remains pending before this Court. In the interim, another final hearing is scheduled to occur on March 9, 2017, as a result of the filing of subsequent Petitions for Benefits, not the subject of the order pending on appeal. Appellant’s purpose in filing the subject Motion for Review is to challenge the JCC’s denial of its request for a stay of all proceedings and for cancellation of the upcoming March 9, 2017, final hearing, pending appellate resolution of the prior merits order.

Here, Appellant seeks not to stay a final or non-final order pending review, but rather seeks a stay of all further proceedings pending review of a previously appealed merits order. Rule 9.310, Florida Rule of Appellate Procedure, is not applicable, as it provides in pertinent part:

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief,..

(Emphasis added.) Rather, a request of the JCC for a stay of proceedings until resolution of issues raised by a previous order pending appeal is procedurally appropriate under rule 60Q-6.115, Florida Rules of Procedure for Workers Compensation Adjudications, and rules 9.180(c)(1) and 9.190(e)(3)&(4), Florida Rules of Appellate Procedure. Appellate review of the resulting JCC’s order is governed by rule 9.100(c)&(e), Florida Rule of Appellate Procedure.


author: Conner, J.

text:
    Jane BISTLINE, M.D., and Jane E. Bistline, M.D., P.A. Petitioners, v. Anthony ROGERS, M.D. and Palm Beach Pain Management, Inc., and Gary Carroll, Respondents.
    No. 4D16-4012
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017

      Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, and Louis M. Silber of Silber & Davis, West Palm Beach, for petitioners.
    Sharon Bidka Urbanek of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for respondents Anthony Rogers, M.D. and Palm Beach Pain Management, Inc.
   Conner, J.

Petitioners Jane Bistline, M.D. and Jane Bistline, M.D., P.A. seek certiorari review of the trial court’s order granting Respondent Anthony Rogers’s motion to amend his fourth amended complaint to assert claims for punitive damages. Having determined that we have jurisdiction, we grant relief because it appears from the order under review that the trial court applied the wrong legal standard.

Factual Background and Trial Court Proceedings

Respondent Rogers is a medical doctor with an ownership interest in a medical practice, Palm Beach Pain Management Clinic (PBPMC). In 2002, Rogers and Respondent Carroll jointly owned PBPMC. In 2003, Rogers and Carroll entered into an agreement for Rogers to buy out Carroll’s interest in the practice; however, Carroll retained fifty percent of the voting rights and remained as the president, chief executive officer, and chairman of the board until he was fully paid for his interest. PBPMC hired Bistline to work in the practice. Allegedly, in 2004, Carroll and Bistline decided to open a competing practice together.

As the plaintiff below, Rogers sued Petitioners and the other respondents, alleging Petitioners stole patients from PBPMC and improperly used and copied patient data and appointment schedules from a database owned by PBPMC. Eventually, Rogers sought leave to amend the complaint to add a claim for punitive damages against Petitioners as to separate counts for unfair competition, conversion, and tor-tious interference. Rogers submitted a proposed amended complaint and a written proffer of evidence in support of his motion to amend, which consisted largely of excerpts from transcripts of witness testimony in depositions and at various hearings.

Petitioners asserted various arguments and contentions for denying the motion, the primary contentions being that (1) Rogers’s proffer of evidence was insufficient to support a punitive damages award because it failed to identify a single patient that had been improperly diverted from Rogers, and (2) because the trial court had previously stricken certain allegations of fraud in diverting the patients, there was no support for a punitive damages award under the three counts at issue.

After a hearing, the trial court granted the motion to amend. Petitioners now seek review.

Certiorari Analysis

“Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, [Florida Statutes (2016),] but not to review the sufficiency of the evidence.” Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995)).

Section 768.72(1), Florida Statutes (2016), provides in relevant part: “In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2016) (emphases added). Subsection (2) sets forth the burden of proof at trial and provides: “A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla. Stat. (2016) (emphasis added).

Because the claims at issue do not sound in negligence, the asserted basis for punitive damages under the statute was “intentional misconduct.”

“Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

§ 768.72(2)(a), Fla. Stat. (2016).

In the context of actions for tortious interference with a contract or business relationship, we have said that “[r]ecord evidence may support an intentional tort, but not necessarily an award of punitive damages.” Air Ambulance Prof'ls, Inc. v. Thin Air, 809 So.2d 28, 30 (Fla. 4th DCA 2002). Relying on Florida Supreme Court precedent, we have also said, in the context of tortious interference, that:

[A]s the court noted in American Cyanamid Co. v. Roy, [498 So.2d 859 (Fla. 1986),] punitive damages are only tenable for “[t]ruly culpable behavior ... to express society’s collective outrage. ...” As the Supreme Court has also expressed it, in order to sustain a claim for punitive damages, the tort must be committed in “an outrageous manner or with fraud, malice, wantonness or oppression.” Winn & Lovett Grocery Co. v. Archer [, 126 Fla. 308, 171 So. 214 (1936)].

Hosp. Corp. of Lake Worth v. Romaguera, 511 So.2d 559, 565 (Fla. 4th DCA 1986) (third alteration in original).

To merit punitive damages, the conduct in an intentional interference case must be egregious and sufficiently reprehensible to rise to the level of truly culpable behavior deserving of punishment. Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc., 987 So.2d 706, 708 (Fla. 4th DCA 2008) (concluding that defendant’s conduct in a tortious interference case was “not sufficiently egregious” to permit punitive damages); James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So.3d 68, 78 (Fla. 4th DCA 2010) (same). We think the same level of culpable conduct applies to entitlement to punitive damages for other business torts, like conversion.

The beginning of the order under review states that the trial court reviewed and considered the evidentiary proffer by Rogers in support of his motion to amend. However, in expressing the standard used for analysis, the trial court stated that “[t]he standard of whether a claimant has established a ‘reasonable basis’ for recovery is similar to that of whether a claimant has stated a cause of action,”' citing our decision in Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188 (Fla. 4th DCA 2005). Also citing to Holmes, in the next sentence, the trial court stated, “[w]hen determining whether a complaint states a cause of action, all allegations are taken as true.” Subsequently, as to each of the three causes of action, the trial court began its analysis with “Plaintiffs allege,” and concluded the analysis with “[a]s Plaintiffs [sic] allegations in the instant motion are taken as true, Plaintiffs have established a reasonable basis for punitive damages for their [cause of action].” Further down, the order stated, “[t]o amend to add a claim for punitive damages Plaintiffs must make a ‘reasonable showing’ through sufficient allegations, but do not need to provide evidence of those allegations.” (emphasis added). Finally, at the end of the order, the trial court concluded with “Plaintiffs have pleaded a factual scenario in which an award of punitive damages would be permissible. Thus, amendment is proper.” (emphasis added).

It appears the trial court misapplied our decision in Holmes and accepted Rogers’s allegations as true believing that the inquiry “is akin to determining whether the pleader has stated a cause of action.”

Holmes was a direct appeal after trial of an order denying a motion to amend the complaint to add a claim for punitive damages. There, we addressed what standard of review should be applied to a trial court’s pretrial decision to deny the amendment. Holmes, 891 So.2d at 1191. We specifically noted that, because section 768.72 creates a substantive right, the abuse of discretion standard, which requires all doubts to be resolved in favor of allowing amendments, is not appropriate. Id. Instead, we concluded that the appropriate standard of review is de novo. Id. In reaching that conclusion, we made a comparison in which we determined that the “reasonable showing” under section 768.72 is “similar to determining whether a complaint states a cause of action or the record supports a summary judgment, both of which are reviewed de novo.” Id. Unfortunately, the trial court focused on the language “whether the complaint states a cause of action,” disregarding the other part of the analogy, whether “the record supports a summary judgment.” The analogy this Court drew in Holmes was made in determining the proper standard of review.

Section 768.72(1) “create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper, 658 So.2d at 519 (emphasis added). The procedural protection of this statute requires more than mere allegations. We agree with Petitioners that an evaluation of the evi-dentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true.

The court should have determined whether Rogers had established a reasonable evidentiary basis to recover punitive damages against Petitioners based on “intentional misconduct,” as defined in the statute, and whether there is a reasonable evidentiary showing that the conduct rises to a level of culpability sufficient to support punishment.

“Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999). “Hence, punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross. negligence as to indicate a wanton disregard for the rights and safety of others,” Id. (quoting White Constr. Co., Inc. v. Dupont, 455 So.2d 1026, 1028 (Fla. 1984)).

Merely pleading a facially sufficient claim for an intentional business tort is not sufficient to claim punitive damages. “[Pjunitive damages are reserved for particular types of behavior which go beyond mere intentional acts.” Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1001 (Fla. 4th DCA 2004); see also Matrix Grp. Ltd., Inc. v. Rawlings Sporting Goods Co., 477 F.3d 583, 595 (8th Cir. 2007) (“In order to recover punitive damages [plaintiff] would have had to prove more than just the elements of a claim for tortious interference.”). An award of punitive damages for the intentional torts in this case would require an evidentiary showing of fraud, malice, or outrageous conduct, such as an illicit scheme to put the plaintiff out of business. Matrix Grp., 477 F.3d at 595. On a motion to amend the complaint, the evi-dentiary showing is by proffer.

Petitioners have shown a departure from the essential requirements of law. The statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery. The trial court used an inadequate standard and failed to comply with the procedural requirements of section 768.72(1). Because the harm of being subjected to an impermissible punitive damage claim cannot be remedied by an appeal, we grant the petition and quash the order on review.

Petition granted.

WARNER and MAY, JJ., concur.


author: Levine, J.

text:
    Robert S. SCHWARTZBERG, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2304
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017

      Douglas I. Leifert of Douglas I. Leifert, P.A., Delray Beach, and Robert S. Gersh-man of Gershman & Gershman, P.A., Del-ray Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant raises several issues for our review, and we write to address three. Appellant first argues the trial court erred in redacting a portion of a 911 tape wherein appellant referenced the victim’s prior bad acts. Appellant next argues that his two battery convictions violate double jeopardy because they involved conduct occurring within the same criminal episode. Finally, appellant argues that the trial court improperly considered subsequent, uncharged misconduct when sentencing him. We affirm appellant’s conviction, finding that the court did not abuse its discretion in allowing the redaction and that the two battery convictions do not violate double jeopardy. However, we reverse appellant’s sentence and remand for resentencing.

Appellant had been dating the victim for several months. One night, after appellant passed his “Series 7 Exam,” he and the victim went out to celebrate. After they returned to appellant’s home, the victim alleged appellant demanded that she have sex with him. The victim refused.

When the victim attempted to leave, appellant blocked the door. The victim attempted to push past him, but appellant pushed the victim to the bed. He then pressed his arm into her neck so she could not breathe. The victim scratched at appellant, and he took her hand in his and struck her mouth with her own hand. Eventually, he got off of her, but continued to hit her and prevent her from leaving. Appellant then pushed her back onto the bed, pinned her down, and pushed his fingers into her vagina.

The victim was eventually able to escape the room and attempted to call 911. Appellant said he would be the one to call 911 and told the victim she would go to jail. Appellant then called 911 and told the operator that the victim had attacked him and informed the operator that the victim had previously been arrested for attacking a previous boyfriend.

Appellant was charged with false imprisonment, sexual battery, and domestic battery by strangulation.

During trial, the state sought to introduce a redacted recording of appellant’s 911 call into evidence. The state sought to redact the following statements from the 911 call: (1) “She has an arrest report for previously assaulting another boyfriend.”; (2) “She was previously arrested because she assaulted her boyfriend.”; (3) “If you Google it on the Google she’s the second name down she has an arrest record and she has a picture. It’ll come right up. She was arrested in Miami Dade. She lives in Boynton Beach right now, but she was arrested in Miami Dade.”; and (4) “Cause she’s been arrested for this. She had a previous boyfriend and they got in a fight in Miami and she punched him in the nose and like broke his nose or some sh-t, and he called the cops on her.” Appellant objected to the redaction, claiming it violated the rule of completeness.

The trial court found that the rule of completeness required only admission of the first statement, which appellant made in response to the operator’s question regarding the victim’s identity. The court could not hear the second portion of the tape, whereupon the state withdrew its objection. However, the court found that the rule of completeness did not compel admission of the third and fourth statements because they did not “put into context, amplify, [or] explain” what the operator had said. Appellant made the third statement in response to the operator’s request to spell the victim’s name, and appellant made the fourth statement in response to the operator’s request not to hang up.

The jury found appellant guilty of false imprisonment as charged. The jury also found appellant guilty of battery as a lesser-included offense to sexual battery and battery as a lesser-included offense to domestic battery by strangulation.

When sentencing appellant, the court considered a subsequent, uncharged episode of misconduct wherein appellant allegedly made unwanted sexual advances towards a different woman. The court, considering both the criminal conduct of which appellant was convicted as well as the uncharged conduct, sentenced appellant to four years in prison followed by one year of community control for false imprisonment, and one year of community control for the two battery convictions to be served concurrently. This appeal ensues.

Appellant first argues that the trial court erred in allowing the state to redact two parts of his 911 call. We review a trial court’s evidentiary decisions for abuse of discretion as limited by the rules of evidence. See McDuffie v. State, 970 So.2d 312, 326 (Fla. 2007). A trial court abuses its discretion when it applies an “erroneous view of the law.” Id. (citation omitted).

Section 90.108(1), Florida Statutes (2015), provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

“This rule is known as the ‘rale of completeness,’ and its purpose is to avoid the potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla. 1996), “[T]he standard for determining whether the additional portions of the statement should have been admitted is whether, in the interest of fairness, the jury should hear the remaining portions at the same time so as to avoid the potential for creating misleading impressions by taking statements out of context.” Mason v. State, 719 So.2d 304, 305 (Fla. 4th DCA 1998). “The rale of completeness, however, is not absolute and a trial court may exercise its discretion to exclude irrelevant portions of a recorded statement.” Pulcini v. State, 41 So.3d 338, 348 (Fla. 4th DCA 2010).

For example, in Mason, the defendant was seen leaving the scene of a recent burglary and told a witness, “I told him I wanna leave, get outta the neigh—I wanna leave. I didn’t wanna be caught up in that sh-t ‘cause it was wrong.” 719 So.2d at 305. This court held it violated the rale of completeness for the state to introduce the first sentence and not the second because the second sentence “shed light upon the part already admitted.” Id. (citation omitted). See also Metz v. State, 59 So.3d 1225, 1226-27 (Fla. 4th DCA 2011) (admitting the defendant’s incriminating statements while omitting the defendant’s exculpatory statements violated the rule of completeness).

In the present case, the trial court did not abuse its discretion. Appellant concedes that the redacted 911 tape was not misleading but argues that it was “unfair” to allow the state to redact portions of the tape and that the statute requires admission of any part of a statement “that in fairness ought to be considered contemporaneously.” § 90.108(1), Fla. Stat. However, in the version of the tape the jury heard, appellant accused the victim of attacking him and referenced the victim’s prior criminal history. Redacting the tape to remove additional references to the victim’s prior bad acts did not have the “potential for creating [a] misleading impression!]” of the recording. See Pulcini, 41 So.3d at 348. Additionally, the redacted, non-responsive hearsay statements did not “shed light upon” any other part of the 911 tape. See Mason, 719 So.2d at 305. Finally, even if the trial court did err, any error would be harmless. The references to the victim’s prior bad acts would have been merely cumulative as, even after the redaction, the tape contained references to the victim’s prior arrest, and appellant testified about the victim’s prior criminal history,

Next, appellant argues that his two convictions for battery violate double jeopardy because both battery convictions were for conduct occurring during the same criminal episode. “Double jeopardy claims based on undisputed facts present questions of law and are subject to de novo review.” Graham v. State, 207 So.3d 135, 137 (Fla. 2016). Although appellant did not raise this issue in the court below, we can consider this argument on appeal since a double jeopardy violation is fundamental error. See Hanfield v. State, 40 So.3d 905, 906-07 (Fla. 4th DCA 2010).

In the Florida Supreme Court’s recent Graham decision, the court identified two tests for determining whether convictions violate the constitutional prohibition against double jeopardy: the “different elements” test and the “distinct acts” test. Graham, 207 So.3d at 137-39. “[WJhere the defendant is convicted multiple times under the same statute for acts that occurred during the course of a single criminal episode, a ‘distinct acts’ test is used, but ... where a defendant is convicted under multiple statutes for one act, the ‘different elements’ test applies.” Id. at 141. Here, because appellant was convicted twice under the same statute, battery, we use the “distinct acts” test. Pursuant to the “distinct acts” test:

“[WJhen the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.” ... “The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. If the latter, there can be but one penalty.”

Id. at 139 (alteration in original) (citation omitted) (quoting Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Applying Graham to the present case, no double jeopardy violation occurred. Appellant was charged with one count of sexual battery for allegedly penetrating the victim’s vagina with his finger and was convicted of the lesser-included offense of battery. Appellant was also charged in another count with domestic battery by strangulation and subsequently convicted of the lesser-included offense of battery. Therefore, even though both of appellant’s battery convictions occurred within the same criminal episode and were part of a “common stream of action,” in this case “each act is punishable separately” because the “individual acts” of battery are distinct and prohibited. Id.

Finally, appellant argues the lower court erred when it considered subsequent, uncharged misconduct when sentencing him. The state concedes error, citing Norvil v. State, 191 So.3d 406 (Fla. 2016). We accept the state’s concession of error. We therefore reverse and remand for resentencing before a different judge “to preclude any perception on [appellant’s] part that the resentencing may not be conducted in a completely fair and impartial manner.” Mirutil v. State, 30 So.3d 588, 591 (Fla. 3d DCA 2010) (quoting Berry v. State, 458 So.2d 1155, 1156 (Fla. 1st DCA 1984)).

In summary, we find the trial court did not abuse its discretion in permitting the state to redact only two small parts of appellant’s 911 call. We further conclude that under Graham, appellant’s two battery convictions did not violate double jeopardy. Finally, we find the remainder of appellant’s arguments directed towards his convictions to be without merit and affirm without comment. However, we reverse appellant’s sentence and remand for resen-tencing before a different judge.

Affirmed in part, reversed in part, and remanded.

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


author: OSTERHAUS, J.

text:
    John Adam EDWARDS and Brindley Kuiper, Appellants, v. Ryan MAXWELL, Individually, Appellee.
    CASE NO. 1D16-2168
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.
    Rehearing Denied May 3, 2017

      Kyle P. Egger of The Nearing Firm, Miami, for Appellants.
    Katherine E. Giddings and Diane De-Wolf, of Akerman LLP, Tallahassee, and Joseph L. Rebak and Lorayne Perez of Akerman LLP, Miami, for Appellee.
   OSTERHAUS, J.

John Adam Edwards and his adopted son Brindley Kuiper appeal an order vacating Mr. Kuiper’s adoption, which was finalized in 2004. Ryan Maxwell, Mr. Edwards’ biological son, argued for setting aside Mr. Kuiper’s adoption because he didn’t receive proper notice. He deemed the adoption a sham that diluted his potential for receiving distributions of family trust benefits. We reverse because Mr. Maxwell lacks standing to challenge the 2004 adoption order.

I.

Mr. Maxwell is the only biological son of Mr. Edwards and is a beneficiary of three irrevocable trusts established by Mr. Edwards’ great-grandparents to provide for their descendants. These trusts are managed at the sole discretion of trustees, who determine if, when, and to which eligible trust beneficiaries distributions are made. In 2004, Mr. Edwards adopted Mr. Kuiper, which had the legal effect of adding Mr. Kuiper as an eligible beneficiary to these trusts. Indeed; Mr. Kuiper has since been disbursed thousands of dollars from the trusts. Mr. Maxwell alleged that he didn’t know about the adoption in 2004, and he challenged the adoption when he later learned of it. In 2014, Mr. Maxwell filed a motion to set aside the final judgment of adoption, alleging fraud on the court. He claimed that the adoption should be vacated because he didn’t receive notice despite his legal interest in preventing trust benefits from flowing to Mr. Kuiper. The trial court agreed and vacated the adoption order. Messrs. Edwards and Kuiper then appealed.

II.

Adoption law in Florida is a creature of statute and of the Florida Adoption Act. See § 63.012 et seq., Fla. Stat. The statutes prescribe who may adopt, who may be adopted, and under what conditions adoptions may take place. In 2006, the Legislature amended the Act to codify a decision of the Florida Supreme Court from 1996, setting forth when a third-party should be notified about an adoption, could intervene in an adoption proceeding, and could bring an action to vacate an adoption. See § 63.182(2)(a), Fla. Stat.; Stefanos v. Rivera-Berrios, 673 So.2d 12 (Fla. 1996). Generally speaking, an action to set aside a final judgment may not be filed more than one year after judgment is entered, but this doesn’t apply to allegations of fraud upon the court. See Fla. R. Civ. P. 1.540(b). Mr. Maxwell alleged harm from a fraud on the court as to Mr. Kuiper’s adoption. He claims to have had a right to notice and intervention in the adoption proceeding, yet didn’t receive notice.

The validity of Mr. Maxwell’s claim depends on whether he was entitled to notice of the adoption when it occurred in 2004. See Stefanos, 673 So.2d at 13. Under Stefanos and the Act, a party must show a direct, financial, and immediate interest in an adoption to be entitled to notice, or to have legal standing to vacate an adoption order. A showing of an indirect, inconsequential, or contingent interest is “wholly inadequate.” § 63.182(2)(a), Fla. Stat.; Stefanos, 673 So.2d at 13. So a person with an indirect interest or contingent interest in an adoption does not have standing to set aside a judgment of adoption. Id.

In this case, Mr. Maxwell lacks standing to set aside the 2004 adoption because he wasn’t entitled to notice in the first place. He had no direct, immediate, and financial interest in the adoption. The interests Mr. Maxwell possesses as an eligible beneficiary to three family trusts are all contingent. See Stefanos, 673 So.2d at 13; Dennis v. Kline, 120 So.3d 11, 22-23 (Fla. 4th DCA 2013). The trusts are solely administered at the discretion of trustees. And Mr. Maxwell has no direct or immediate right to funds in the trust or control over trust-disbursement decisions. The trustees possess unilateral discretion to determine, for instance, if disbursements are made, when disbursements are made, and to whom (among the eligible beneficiaries) disbursements are made. See Blechman v. Estate of Blechman, 160 So.3d 152, 159 (Fla. 4th DCA 2015) (defining a contingent interest partly on the basis of whether it involves an event in the future, which may never happen and which lies entirely outside the control of the beneficiary to bring about with certainty). Because Mr. Maxwell does not possess direct, financial, and immediate interests in the trusts, he had no concomitant right to receive notice about the adoption that added Mr. Kuiper as an eligible beneficiary. And he cannot now have the adoption order vacated.

Mr. Maxwell’s counterargument to vacate the adoption derives mostly from the Fourth District’s holding in Rickard v. McKesson, 774 So.2d 838 (Fla. 4th DCA 2000). There, the Court held that a contingent beneficiary of a trust was entitled to notice of an adoption proceeding that caused a contingent beneficiary to be divested of her entire interest in a trust. Id. at 840. But the situation in Rickard, to the extent that case remains good law, is not present here. Mr. Maxwell was not divested of his entire interest in the trust. He retains his eligibility and contingent interest to receive trust disbursements. The Fourth District’s decision in Dennis, subsequent to Rickard, affirms the rule that a plaintiff seeking to challenge an adoption must demonstrate a direct and immediate interest at stake in the adoption. 120 So.3d at 22-23 (quoting § 63.182(2)(a), Fla. Stat.). Mr. Maxwell lacked such a direct and immediate interest in Mr. Kuiper’s adoption.

III.

Mr. Maxwell doesn’t have legal standing to bring an action to vacate the 2004 adoption order. We therefore REVERSE and REMAND with directions to reinstate the final judgment of adoption.

JAY and WINSOR, JJ., CONCUR.