author: LOGUE, J.

text:
    CITY OF KEY WEST, Appellant/ Cross-Appellee, v. KEY WEST GOLF CLUB HOMEOWNERS’, etc., et al., Appellees/Cross-Appellants.
    No. 3D13-57
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017.

      Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael ,T. Burke and Hudson C. Gill (Fort Lauder-dale), for appellant/cross-appellee. .
    Smith Oropeza, P.L., and -Barton W. Smith and Ashley N. Sybesma, for appel-. lees/cross-appellants.
    Before SALTER, EMAS, and LOGUE, JJ. ,
   ON MOTION FOR REHEARING

LOGUE, J.

This casé comes before us oh rehearing. We. grant rehearing,'withdraw bur previous opinion, and issue this opinion in its stéad. .

Key West’ Golf Club Homeowners’ Association, Inc. (Association), Key West Golf Club, LLC (Golf Course), and Key West HMA, LLC (Hospital) brought suit seeking a declaration that the City of Key West’s stormwater utility fee was illegal as applied to their properties. After a bench trial, the court agreed and entered a judgment exempting the properties from future stormwater utility fees. We reverse.

The undisputed record at trial reveals that the Association, Golf Course, and Hospital contributed to the need for the stormwater utility by discharging storm-water. They also benefited from both the stormwater utility’s flood control and pollution control measures. While the trial court apparently found that the amount of the fee had no reasonable relationship to the benefits received, it considered only the costs of the flood control measures and failed to consider the substantial, Citywide stormwater anti-pollution services which comprise a large part of the storm-water management system at issue. In City of Gainesville v. State, 863 So.2d 138, 145 (Fla. 2003), the Florida Supreme Court upheld a method of establishing stormwater fees virtually identical to the method used here by the City. For these reasons, we hold that the City acted within its lawful authority by subjecting the properties to the stormwater utility fees.

FACTS

The State has authorized municipalities to create stormwater utilities in order to fund stormwater management. See §§ 403.0891, .0893, 163.3202(d), Fla. Stat. (2001). The purpose of these laws is to control flooding and to prevent pollution— the latter being deemed by the Legislature as “a menace to public health and welfare.” See § 403.021(a). The need to mitigate the effects of stormwater discharge is particularly heightened in the municipality of Key West. It is part of the Florida Keys which the Legislature has designated “as an area of critical state concern” in order to, among other things, “[pjrotect and improve the nearshore water quality.” § 380.0552 (2)(i) & (3), Fla. Stat.

In 2001, the City established a stormwater utility as authorized by Chapter 403 of Florida Statutes. See Key West, Fla. Code § 74.365. One purpose of the utility was to improve “the water quality in the storm-water and surface water system and its receiving waters.” Key West, Fla. Code § 74.362. Tracking the ordinance upheld in City of Gainesville, the fee at issue is based on the amount of impervious surface area, such as buildings and parking lots, on a property. A larger impervious surface area results in a higher utility fee because the larger such areas, the less stormwater is absorbed into the ground and the more stormwater is discharged. The ordinance exempts certain property, including property that retains its stormwater runoff. The ordinance establishes a sliding scale for the amount of the utility fee based upon the amount of water retained on site. The fees do not go into the general fund, but are segregated in a separate account dedicated to plan, construct, operate, and maintain the City’s stormwater management system on a city-wide, unitary basis for present and future needs.

In 2008, the City began billing the Association, Golf Course, and Hospital for the stormwater utility fee. In 2009, the Association, Golf Course, and Hospital filed suit against the City, essentially claiming that they received little or no benefit from the stormwater utility.

The Association, Golf Course, and Hospital are located on Stock Island, which is immediately east of the island of Key West. Stock Island is bisected by US Highway 1 (US 1). The portion of Stock Island north of US 1 is within the municipal boundaries of the City of Key West. The main road providing access to the northern portion of Stock Island is College Road. College Road forms a horseshoe-shaped loop which generally runs along the water’s edge on the perimeter of northern Stock Island. Each end of the loop intersects US 1.

Enclosed within the loop formed by College Road are all or part of the properties of the Association, Golf Course, and Hospital and also a tidal salt marsh. The submerged land under the salt marsh is largely owned by the City, although part is leased to the Golf Course and part is owned by the Hospital. The Association, Golf Course, and. Hospital properties have injection wells, retention ponds, and catch basins. They stipulated, however, that the properties did not retain stormwater at levels that would qualify them for a fee exemption or reduction under the ordinance. Instead, they discharge stormwater into the salt marsh or Gulf. The water discharged into the salt marsh drains out to the Gulf of Mexico by means of seven culverts cut through College Road.-

At trial, the undisputed testimony of numerous witnesses was that without the seven culverts that allow the salt marsh to flow into the Gulf, the salt marsh would back up and the Association, Golf Course, and Hospital properties would flood. In addition, without the culverts and also the storm drains and outlets along College Road that divert stormwater coming onto the road into either the salt marsh or directly into the Gulf, College Road would flood and access to the landowners’ properties would be blocked.

There was conflicting evidence as to whether the culverts, storm drains, and outlets that provided the drainage constituted part of the City’s stormwater system. On this crucial point, however, the trial court found for the City and against the Association, Golf Course, and Hospital. As expressly found by the trial court, “[t]he City of Key West controls and maintains a stormwater system on North Stock Island.” Key West Golf Club Homeowners’ Assoc. v. City of Key West, Order Declaring Section 74.365 Illegal, Case no. 2009-CA-822-K at 20 (Fla. Cir. Ct. Nov. 9, 2012). This system, the trial court determined, “consist[s] of catch basins, culverts, and pipes carrying water from the basins to the salt marsh and then to the Gulf of Mexico, or to the Gulf directly.” Id at 7. The Association, Golf Course, and Hospital do not challenge this finding.

The undisputed testimony also indicated that.the City’s stormwater management system provides a host of citywide storm-water anti-pollution services. These citywide services include flood and pollution control education, storm drain stenciling, a stormwater hotline (to report polluters using storm drains), testing for illicit discharges into the storm drains, mandatory intergovernmental coordination regarding water quality for the watersheds and basins in which the City is located, water monitoring, and enacting and enforcing an ordinance requiring compliance with Florida Department of Environmental - Protection and South Florida Water Management District rules' and regulations. Stormwater runoff necessitates these services. These services are legally authorized to be part of the stormwater management program funded by the utility fees: “Stormwater management programs shall use a combination of nonstructural and structural best management practices ...,” Fla. Admin. Code R. 62-40.431(3) (emphasis added).

As the undisputed testimony of one city official indicated, the stormwater management program also includes the City’s work in obtaining and maintaining an MS4 National Pollutant Discharge Elimination System permit. The MS4 is a national permit issued by the State Department of Environmental Protection through authority delegated to It by the Federal Environmental Protection Agency. It is through this permit that the State and the federal' government largely monitor and control stormwater discharge issues in the state and national waters surrounding the City. The City’s MS4 permit is a legally authorized element of the City’s stormwater management program: “local governments shall cooperatively implement on a watershed basis a comprehensive stormwater management program implemented through ... the National Pollutant Discharge Elimination System stormwater program.” Fla. Admin. Code R. 62-40.431(3).

The evidence at trial indicated that the City’s possession of the MS4 permit and the nonstructural citywide stormwater anti-pollution services benefit all ratepayers, like the Association, Golf Course, and Hospital, who discharge stormwater runoff. The undisputed testimony of a city official and of the property owners’ own expert was that if the quality of the waters receiving the stormwater runoff drops below -a certain level due to stormwater discharge, and the City’s nonstructural citywide services are not accepted as sufficient efforts at remediation, the ability of the City and other permit holders like the Association, Golf Course, and Hospital to discharge stormwater into the state and national waters will be curtailed, which, in turn,' will impact costs involved in discharging runoff and might ultimately impact the use of the lands. Moreover, the undisputed testimony indicated that the City’s stormwater utility plans include both the installation of new headwalls and aprons at the outfalls to prevent mangrove growth and allow easier maintenance in the future and the retrofitting of the College Road street inlets with water quality, inserts that will reduce and' prevent pollution contained in the stormwater discharges.

The evidence also reflected that no stormwater from the properties of the Association, Golf Course, or Hospital travels to the Island of Key West for wastewater treatment. And although no amount was quantified, the City spent relatively small amounts of money maintaining its anti-flood system of culverts, storm drains, and outlets which drain the waters on College Road and the salt marsh.

At the end of trial, the trial court found that the Association, Golf Course, and Hospital were non-users or minimal users of the stormwater utility. It refused to order a refund of previously paid stormwa-ter fees, but it exempted the properties from future charges. The City appealed and the Association, Golf Course, and Hospital cross-appealed.

ANALYSIS

1. Can these properties be subject to any stormwater utility fee?

The first issue presented by this case is whether the City can lawfully charge the Association, Golf Course, and Hospital any stormwater utility fees at all. Here, the undisputed record at trial shows that Association, Golf Course, and Hospital contribute to the need for the stormwater utility by discharging stormwater, and they benefit from both the stormwater utility’s flood control and pollution control measures.

A stormwater utility fee is a special type of user fee. User fees must be voluntary in the sense that a payer must' be able to avoid the fee by declining the benefit. City of Gainesville, 863 So.2d at 144. The law is well established, however, that a property owner • elects to pay a stormwater utility fee when it elects to discharge stormwater rather than retain it. “Properties that are either undeveloped or implement ways to retain all stormwater on site are exempted. Therefore, property owners can avoid the fee either by not developing the property or by implementing a system to retain'stormwater on site.” Id. at 146. Here, the Association, Golf Course, and Hospital could elect to remove themselves from the ambit of the utility’s services by" refraining from ■ discharging stormwater runoff. They cannot however, elect to discharge stormwater runoff and also refuse to pay for the programs which the legislature has-determined are necessary to mitigate the “flooding, overdrain-age, environmental degradation and water pollution” generated by the discharges. See generally § 403.031(16).

Like similar statutes, the statute at issue authorizes stormwater utility fees to be paid based upon a ratepayer’s contribution to the need for,.and benefit from, the stormwater utility. See, e.g., § 403.031(17) (defining “stormwater utility” as “the funding of a stormwater management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need” (emphasis added)). Following this law, the Florida Supreme Court has held, “beneficiaries” of a municipal stormwater utility “can be charged.” City of Gainesville, 863 So.2d at 145. To decide if the Association, Golf Course, and Hospital can be charged a utility fee, we must decide if they contribute to the need for and benefit from the,stormwater management system established by the stormwater utility.

“[T]he objective of a stormwater management system is to prevent or reduce flooding and.pollution.” City of Gainesville, 863 So.2d at 140. See § 403.031(16) (defining “[sjtormwater management system” as “a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges from the system.”).

The trial court did not make an express finding that the Association, Golf Course, and Hospital do not benefit from the stormwater anti-flooding system. Any such finding would not be supported by the record. The undisputed evidence at trial reflected that the stormwater discharge from their properties would cause the salt marsh to back up and flood their properties were it not for the drainage provided by the culverts, storm drains, and outlets which the trial court expressly found were part of the City’s stormwater management infrastructure. The record thus reflects that the Association, Golf Course, and Hospital benefit as landowners from the anti-flooding stormwater management program: they gain access to and use of their land which would otherwise flood. ‘ This benefit is completely different’ from any ancillary benefit provided to the general public which could avoid the flooded road and properties.

Moreover, the trial court failed to credit the extensive and undisputed testimony that the Association, Golf Course, and Hospital benefited from the citywide stormwater anti-pollution services funded by the utility fees. Measures to mitigate the pollution and water degradation caused by stormwater discharges are central to the legislature’s purpose in authorizing the creation of stormwater utilities. See § 403.031(16).

In terms of the pollution control aspects of the program, the - Association, Golf Course, and Hospital contribute to the need for the stormwater anti-pollution services by discharging runoff into the City’s salt marsh, which then flows into the Gulf. While their runoff is not treated by the City, the larger program of the City includes many other federal and state required stormwater anti-pollution .services that protect the quality of the water that touches and surrounds their properties. The City’s program also allows the landowners to avoid more onerous and expensive treatment for their runoff under applicable state and local laws. Thus, the stormwater anti-pollution services are components of the stormwater management system necessitated by their actions (discharging runoff) and are also something from which they specially benefit.

.In their brief, the Association, Golf Course, and Hospital attempt to evade the legal consequences of these conclusions by asserting that these citywide stormwater anti-pollution services benefit the public generally and should be paid by taxes. They argue: “improved water quality is yet another general benefit shared by all of the public, not a specific benefit bestowed exclusively upon payers of the [City’s] stormwater utility fee.” This statement is wrong both as a matter of public policy and law.

Regarding public policy, the Florida Supreme Court has held that the use of a tax to fund remediation programs caused by stormwater runoff is unsound because it shifts the cost of paying for the programs necessitated by stormwater runoff from the landholders who generate stormwater runoff to others who did not generate the runoff. Sarasota Cty. v. Sarasota Church of Christ, Inc., 667 So.2d 180, 182 (Fla. 1995) (“To require that the stormwater utility services be funded through a general ad valorem tax, as requested by the religious organizations who filed this action, would shift part of the cost of managing the stormwater drainage problems, which are created by developed real property, to undeveloped property owners who neither significantly contributed to nor caused the stormwater drainage problems.”). Although Sarasota County focused on drainage problems created by stormwa-ter discharges, the same reasoning applies with equal force to pollution and water degradation caused by stormwater discharges.

More importantly, the legislature has enacted a law that authorizes municipalities to fund these stormwater anti-pollution management programs from utility fees charged to landholders whose properties generate stormwater runoff. See §§ 403.0891(3), .031(17); Fla. Admin. Code R. 62-40.431(3). Whether or not a court agrees with the legislature’s public policy to fund these services through utility fees is of no moment. It is within the province of the legislature to authorize stormwater utility fees to pay for programs necessitated by stormwater runoff. The Association, Golf Course, and Hospital improperly ask us to usurp a legislative function when they contend we should replace the legislature’s public policy choice that these stormwater services should be funded by utility fees with their own suspect public policy choice that these stormwater services should be funded by taxes. In City of Gainesville, the Florida Supreme . Court repeatedly cited with approval to cases holding that stormwater utility fees and similar statutorily authorized municipal utility fees were not taxes. 863 So.2d at 145-46.

Finally, the trial court attempted to distinguish City of Gainesville on the basis that the Florida Supreme Court held that the University of Florida was properly not charged a fee because the “campus drains into a lake for which the University provides all stormwater management services.” Id. at 142. Here, however, the stormwater from the properties of the Association, Golf Course, and Hospital drain into the salt marsh for which the City provides all stormwater management services. And the undisputed testimony indicated that, without the drainage provided by the culverts, which the trial court expressly found was part of the City’s storm-water infrastructure, the stormwater discharged from the Association, Golf Course, and Hospital properties would back up and flood the properties. Because there is no principled way to distinguish City of Gainesville, we hold it was within the lawful authority of the City to charge these properties a utility stormwater fee.

2. Does the stormwater utility fee . bear a reasonable relationship to the benefits conferred?

The second issue presented is whether the fee charged bears a reasonable relationship to the benefits received. This discussion brings us to the crux of this case. This case is not really about whether the Association, Golf Course, and Hospital contribute to the need for or benefit from the City’s stormwater management program. They do. This case is really about whether these ratepayers on North Stock Island should be charged a lower rate than the ratepayers on the main, island of Key West. So this is a case about-the' level of the utility rate.

On this point, the Florida Supreme Court has held that “the establishment of utility rates is generally a legislative function.” City of Gainesville, 863 So.2d at 147. Indeed, “the creation of a statutorily-authorized utility strongly favors the validity of the fees imposed.” Id. at 145.

In City of Gainesville, a ratepayer claimed a city’s stormwater utility fee was “not based on the amount of stormwater a customer contributes to the system”—an argument identical to the one made in this case. Id. at 143. The method of calculating the stormwater fee—based on a property’s impervious surface area with exemptions for undeveloped properties and properties that retained their stormwater—was identical to the method used in this case. The Florida Supreme Court upheld this method, noting that the .legislature acts within its discretion when setting rates and that “[sjection 403.0891(6), Florida Statutes, expressly authorizes this method of apportioning cost.” Id. at 147. We believe this case falls squarely within the holding of City of Gainesville.'

While the trial court apparently believed that the fee charged Had no reasonable relationship to the benefits received, 'it considered only the costs of the flood control measures and failed to consider the substantial, City-wide stormwater anti-pollution measures that benefit these properties;

In emphasizing that none of the storm-water discharge from their properties travels through the stormwater infrastructure located on the island of Key West, the Association, Golf Course, and Hospital appear to argue that a ratepayer benefits from a statutorily authorized stormwater management system only to the extent that its stormwater travels through the utility’s pipes and infrastructure. We reject' this view for several reasons.

First, a stormwater utility funds more than infrastructure. In fulfilling their mission to mitigate the “environmental degradation and water pollution”’ generated by stormwater discharges, § 403.031(16), “[sjtormwater management, programs shall use a combination of nonstructural and structural best management practices ....” Fla. Admin. Code R. 62-40.431(3) (emphasis added). The undisputed testimony at trial indicated that these practices included many pollution control services listed previously in this, opinion. Stormwa-ter runoff necessitates these services and these services are legally authorized to be part of-the-stormwater management program funded by the utility fees. See, e.g., Fla. Admin. Code R. 62-40.431(3) (“[Ljocal governments shall cooperatively implement on a watershed basis a comprehensive stormwater management program ... implemented through ... the -National Pollutant Discharge Elimination System stormwater program.”). The argument of the Association, Golf Course, and Hospital fails to take into account these essential components of the stormwater manage-mentprogram.

Moreover, the governing cases and statutes direct that the analysis of “use” in regards to a statutorily authorized storm-water or sewer utility focus on whether ‘the ratepayer contributes to the need for and benefits from the utility, not whether-the sewage or stormwater from a particular property travels through a particular pipe. See, e.g„ § 403.031(17) (defining “storm-water utility” as “the funding of a storm-water management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need” (emphasis added)); City of Gainesville, 863 So.2d at 145 (holding “beneficiaries” of a-municipal stormwater utility “can be charged”). In City of Gainesville, when upholding a stormwater utility fee virtually identical to the one at issue here, the Florida Supreme Court cited with approval a long line of cases holding that a utility fee was legally imposed when a landowner benefited, from the existence of the utility whether or not its sewage or solid waste actually entered into the utility’s infrastructure.

If adopted as the law of Florida, the argument of the Association, Golf Course, and Hospital in this regard would allow a utility ratepayer to chop a utility into component parts and obtain a judicial rate reduction based only on the parts of the system it “used.” So, for example, a sewer utility ratepayer located near a water treatment plant could contend it used only the pipes and pumping stations between its property and the plant because its sewage makes its way only into those pipes. It could object to paying rates to support pipes and infrastructure farther from the plant than its own property because its sewage does not make its way into those pipes. Properly understood, the argument of the Association, Golf Course, and Hospital in this case is no more than a variation on this theme.

Ad hoc judicial utility rate adjustments based on the balkanization of utility infrastructure like that proposed by the Association, Golf Course, and Hospital invites abuse because they fail to account for the need to have such systems operate as part of a cohesive, unitary, regional whole. - In the long run, judicial utility rate adjustments will generate more unfairness than the current legislative ratemaking process whose broad and realistic perspective allows consideration of the effect of a rate change on all ratepayers, not just the ratepayers who happen to be before the court.

No system for setting stormwater utility rates is perfect. The trial court’s decision, however, simply shifts the entire future burden of the Association, Golf Course, and Hospital’s share of the costs of the City’s stormwater management program to the remaining ratepayers. This is the mirror image of the unfairness of which the Association, Golf Course, and Hospital originally complained.

. CONCLUSION

The City was well within its discretion to calculate stormwater utility fees as done here. It is extremely difficult, if not impossible, to establish a perfectly fair and accurate, method of assessing these:types .of stormwater charges. .For this reason, the legislature is given broadi discretion in setting such Tees. While the City may well have had the discretion to amend the ordinance and charge the Association, Golf Course, and Hospital a lower rate, it certainly would not have discretion under the existing ordinance to exempt these landholders altogether as the trial court did. This case is remanded with instructions to enter judgment for the City.

Reversed.

      , The Appellant, City of Key West, filed a motion for rehearing en banc of the original panel opinion. When a motion for rehearing en banc is unaccompanied by a motion for rehearing, our Internal Operating Procedures require the motion for rehearing en banc to be treated as including a motion for rehearing which must be ruled upon by the panel. Wade v. State, 57 So.3d 993, 994 (Fla. 3d DCA 2011). The Supreme Court has approved this policy. Romero v. State, 870 So.2d 816, 818 (Fla. 2004) ("By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to the spirit of Florida Rule of Appellate Procedure 9.040(d).”).

      . "Exempt property means public rights-of-way, public streets, public alleys and public sidewalks, public parks, undisturbed property, conservation areas and easements; any property on which is retained 100 percent of the total volume of runoff within the property (measured on the basis of a 72-hour, 100-year storm event); and any property owned by the U.S Navy which by agreement with the City is deemed exempt.” Key West, Fla. Code § 74.361.

      . If a property is able to collect and retain 100% of the water on its property from a 100-year storm for a period of 72 hours, then that property will be exempt from paying the stormwater utility fee. Additionally, Section 74.365 of the Code provides for reductions in the stormwater utility fee: if a property owner is able to retain 100% of the water runoff •of a 25-year storm event for a period of 72 hours, that property owner may receive a 15% reduction of their user fees. If the property owner is able to collect and retain 100% of the stormwater runoff of a 50-year storm for a period of 72 hours, then it is eligible to receive a 25% reduction of its user fees.

      . The testimony of the property owners’ own expert, David Livingston,, cannot be read to suggest he stated the Association, Golf Course, and Hospital’s stormwater discharges would not be curtailed. The expert merely testified that the discharges from other properties might be .curtailed first. This testimony can only be read to mean that, while the Assoeiation, Golf Course, and Hospital’s runoff would not be curtailed first, it would certainly be curtailed subsequently. Thus, he never refuted the .testimony of other witnesses that the Association, Golf Course, and Hospital benefited from the use of utility fees to fund the.MS4 permit.

      . City of Gainesville, 863 So.2d at 146 (citing State v. City of Miami Springs, 245 So.2d 80 (Fla. 1971) (holding that a municipality may charge a mandatory fee for sewer service unrelated to whether sewage from particular property entered pipes); Town of Redington Shores v. Redington Towers, Inc., 354 So.2d 942 (Fla. 2d DCA 1978) (holding that the subject sewer fee applied to unoccupied condominiums); Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977) (upholding a mandatory flat rate for garbage service, regardless of use); City of Riviera Beach v. Martinique 2 Owners Ass'n, 596 So.2d 1164 (Fla. 4th DCA 1992) (holding that the subject solid waste removal ordinance applied to unoccupied condominiums without regard to actual use).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy B. COOKSTON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-739
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 30, 2017
    Timothy B. Cookston, Malone, pro se.,
    Pamela Jo Bondi, Attorney General Tallahassee, and, Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 12, 2015 order on Petitioner’s pro se motion for DNA testing, filed in Case No. 1992-CF-279 in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Reiko V. HENRY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0404
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017
    Reiko V. Henry, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot. See Toomer v. State, 895 So.2d 1256, 1256-57 (Fla. 1st DCA 2005) (“Where one is challenging the legality of his sentence or seeking jail credit against that sentence, and he completes the sentence during the pendency of the appeal, the appeal may be dismissed as moot.”).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Anthony COLLINS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4068
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017
    Anthony Collins, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate and Kaitlin R. Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant was convicted of several crimes, including attempted second degree murder with a firearm, a first degree felony. See §§ 775.087(1)(b), 777.04(4)(c), 782.04(2), Fla. Stat. (2007). For that crime he was sentenced to 35 years in prison to be followed by 15 years on probation, with a 25-year minimum mandatory imposed pursuant to the 10-20-Life statute, section 775.087(2)(a)3., Florida Statutes (2007), for discharging a firearm which caused great bodily harm. The appellant challenges that sentence on the basis of Hatten v. State, 203 So.3d 142 (Fla. 2016). In Hatten, the supreme court declared that where the 10-20-Life statute is implicated, a sentencing judge may impose a mandatory minimum sentence in excess of the statutory maximum sentence, “even if the selected mandatory minimum exceeds the statutory maximum absent the 10-20-Life statute.” Id. at 145. However, “if the trial court chooses to impose a sentence beyond the selected mandatory minimum sentence pursuant to the 10-20-Life statute, additional statutory authority is required.” Id. at 146. Here, the appellant’s 50-year total sentence was not imposed pursuant to section 775.087(2), and there does not appear to be any additional statutory authority to support a sentence beyond the statutory maximum of 30 years. § 775.082(3)(b), Fla. Stat. (2007). Accordingly, we reverse the denial of the appellant’s motion and remand for resentencing consistent with the Florida Supreme Court’s ruling in Hatten.

REVERSED and REMANDED with directions.

ROWE, MAKAR, and JAY, JJ. CONCUR.


text:
    Timothy HANNER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2410
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017
    Timothy Hanner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant filed a rule 3.850 motion for postconviction relief raising six claims— five claims of ineffective assistance of counsel and one claim of cumulative error. The postconviction court held an evidentia-ry hearing on all of the claims in the motion and thereafter issued an order ruling on only three of the six claims. Appellant filed a motion for rehearing in which he argued, among other things, that the court was required to rule on all of the claims. The court summarily denied the motion for rehearing.

On appeal, Appellant argues that the postconviction court erred by failing to address all of the claims in his motion. See Fla. R. Crim. P. 3.850(f)(8)(C) (“The order issued after the evidentiary hearing shall resolve all the claims in the motion .... ”). However, as the State argues, we do not have jurisdiction to review the order because it is not an appealable final order. See Lake v. State, 53 So.3d 1125, 1126 (Fla. 1st DCA 2011) (“It is well-settled that an order disposing of some, but not all of the claims in a motion for postconviction relief is not an appealable final order.”); Fla. R. Crim. P. 3.850(f)(4) (“An order that does not resolve all the claims is a nonfi-nal, nonappealable order ..,.”). Accordingly, we dismiss this appeal without prejudice to Appellant filing an appeal of the final order disposing of the remaining claims in his rule 3.850 motion.

DISMISSED.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.

      . The order grouped together and ruled on the claims designated in the motion as Grounds One, Two, and Three, but it did not address the claims designated as Grounds Four, Five, and Six. This oversight is likely due to the fact that the post-hearing memorandum filed by Appellant focused only on the first three grounds, but the memorandum also stated that Appellant was not abandoning the other grounds raised in the motion and addressed at the evidentiary hearing.


author: WINSOR, J.

text:
    Leroy SPATCHER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5656
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.
    Andy Thomas, Public Defender, and Brenda L. Roman, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, for Appellee,
   WINSOR, J.

The trial court revoked Leroy Spatcher’s probation and sentenced him to prison. The issue on appeal is whether the trial court had jurisdiction to do that. That issue turns on when Spatcher’s probation ended, which turns on what actually happened six years ago in Spatcher’s original, convoluted sentencing proceeding. Although Spatcher offers a colorable interpretation of that proceeding, we disagree with his ultimate conclusion. Spatcher was still on probation when he violated, so the trial court had jurisdiction to revoke. We affirm.

I.

In 2011, Spatcher faced charges in two separate criminal cases. In the first case (Case No. 02-2010-CF-256A, or the “drug case”)> the State charged Spatcher with the sale of a counterfeit ■ controlled substance. In the other case (Case No. 02-2010-CF-146A, or the “driving case”), the State charged felony driving with a revoked license, along with six related misdemeanors. Spatcher and the State entered a, plea agreement to resolve all charges in both cases. According to the agreement, Spatcher would receive one year of community, control for the drug charge, followed by five years of probation for the felony driving charge. The agreement also provided “credit for time served of 301 days.”

The trial court then imposed sentence, the precise details of which the parties dispute. The five years’ probation was consecutive to the one-year community control—Spatcher and the State agree on that part. They also agree that Spatcher’s various jail sentences (up to 301 days) for the misdemeanors were for time served. Also undisputed is the fact that the violation-of-probation affidavit was filed within five years of the end of Spatcher’s community control (in other words, within six years of sentencing). The rub is that the affidavit came less than 301 days before the end of the five years, meaning that if Spatcher’s 301 days’ jail credit operated to shorten his probation, his probation ended before the affidavit. If that were the case, the trial court would have lacked jurisdiction to revoke Spatcher’s probation and sentence him to prison. See Aponte v. State, 896 So.2d 836, 838 (Fla 1st DCA 2005); Mundorff v. State, 890 So.2d 1234, 1236 (Fla. 1st DCA 2005). We review the issue of a trial court’s jurisdiction de novo. Baldwin v. State, 20 So.3d 991, 992 (Fla. 1st DCA 2009).

II.

The oral pronouncement at the 2011 sentencing was not entirely clear, and it conflicted -with the written sentences in both eases, which themselves conflicted with one another. Had the trial court in 2011 operated with greater care and precision, we likely would have never had this appeal. But having waded through the unnecessary ^complications, we conclude that the 2011 sentence was lawful and included a full five years of probation. Therefore, the trial court had jurisdiction to enter the order on appeal.

The sentencing document for Spatcher’s driving case shows a sentence of 301 days in jail with 301 days’ credit plus five years of probation. As Spatcher notes; this total sentence would exceed the five-year maximum allowed for his third-degree felony conviction. See §§ 322.34(5), 775.082(3)(d), Fla. Stat. (2009). He therefore argues that his lawful probation ended four years and sixty-four days after the end of his community control, the four years and sixty-four days equaling the five-year statutory maximum minus the 301 days he says he was sentenced to jail. See Tate v. State, 191 So.3d 535, 537 (Fla. 1st DCA 2016); Aponte, 896 So.2d at 837-38.

The State concedes that if the sentencing document reflected the actual sentence, we would have to reverse. But as the State argues, the. oral .pronouncement—not the sentencing document—controls. See Thomas v. State, 204 So.3d 549, 550 n.1 (Fla. 1st DCA 2016); Busbee v. State, 187 So.3d 1266, 1269 (Fla. 1st DCA 2016). At sentencing, the court said little about the driving case, but it clearly said the five years of probation was “to follow” the one year- of community control. It made no mention of jail or jail credit for the driving case. Accordingly, Spatcher’s sentence-was consecutive to the, community control and, for a full five years.

We reject Spatcher’s suggestion that the oral-pronouncement-controls rule applies only when it benefits the defendant. That is tantamount to arguing that the lesser punishment always controls, a rule we have never recognized. The rule that oral pronouncements control operates whether it helps or hurts a defendant. See, e.g., Rodriguez v. State, 223 So.3d 1053, 1054 (Fla. 2d DCA 2017) (remanding for trial court to strike youthful offender sentence in written judgment because court orally denied defendant’s request for a youthful offender sentence and instead imposed twenty years’ imprisonment); Drumwright v. State, 572 So.2d 1029, 1030-31 (Fla. 5th DCA 1991) (holding trial court’s oral pronouncement of thirty years controlled over written sentence of thirty months).

We also reject Spatcher’s suggestion that the court’s failure to give jail (or jail credit) for the driving charge was an apparent oversight—that considering the plea agreement and counsel’s argument at sentencing, we should find the court’s intent was to give credit on all charges. But even if we were to look, behind the oral pronouncement to find the court’s true intent, cf. Gillen v. State, 696 So.2d 952, 953 (Fla. 4th DCA 1997) (examining trial court’s intent to determine if there was a discrepancy between the oral and written sentences), we would affirm. The handwritten plea agreement said “one year community control (DO) followed' by 5 years drug offender probation.” And at the sentencing, Spatcher’s public defender asked the court to impose one year of community control followed by five years of probation “so that the State could get the full six years it was asking for.” In addressing Spatcher, the court noted its “intent that you be under supervision for a period of six years.” We conclude that the sentence of' five years’ probation on the driving charge (with no jail or jail credit on that charge) was consistent with the court’s and the parties’ intent.

Finally, we reject Spatcher’s argument that the State failed to preserve the sentencing issue. Spatcher cites Latson v. State, 193 So.3d 1070, 1071 (Fla. 1st DCA 2016), to argue we cannot correct a scrivener’s error without a 3.800 motion. Even assuming the State could not seek an order remanding for correction of a scrivener’s error, that is not what the State seeks. The State is not asking this court (or the trial court) to “correct” the written sentence; the State is asking us to recognize what the sentence was, to recognize that the oral pronouncement controls, and to recognize that because of the original sentence, the trial court had jurisdiction to revoke Spatcher’s probation.

AFFIRMED.

LEWIS and WETHERELL, JJ„ CONCUR.


text:
    Tyrone Randy JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5350
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017

      Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant. !
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General of the Office of the Attorney General, Tallahassee, for Appellee. • .
   PER CURIAM.

Appellant, Tyrone Johnson, Jr., appeals his judgment and sentence on multiple grounds. Of his claims, we address only the trial court’s denial of his motions for judgment of acquittal regarding the charges for grand theft auto and theft of property. On these issues, we agree with Johnson, and reverse and remand with instructions to vacate, those convictions. The conviction for acting as bail bond agent with suspended or revoked license is affirmed.

Johnson’s convictions stem from his work as a bail bond agent, Johnson’s bail bond license was revoked in 2012, so he worked alongside another agent to provide bond premium financing for prospective clients. In April 2014, Johnson’s agency assisted Felicia Sledge with a bond for her daughter. Ms. Sledge financed a portion of the bond premium, securing the loan with the title to her vehicle. After several delinquent payments and multiple unsuccessful attempts to sécüre payment, Johnson and a co-worker went to ré-possess Ms. Sledge’s vehicle. Johnson and his co-worker informed police re-possession of the vehicle occurred as a result of non-payment of a loan. At the-time of re-possession, Ms. •Sledge had several personal belongings in the car. She called police to report that her car, and the contents therein, had been stolen.

Johnson was eventually arrested and charged with three crimes, including grand theft auto and theft of property. Johnson’s trial counsel moved for judgment of acquittal on all charges, arguing a lack of intent for the grand theft ahto charge and a double jeopardy violation as to the theft of property charge. The motions were denied.

Grand Theft Auto

The standard of review of the denial of a motion for judgment of acquittal is de novo, Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). “A motion for judgment, of acquittal pertains to the legal sufficiency of the state’s evidence.” State v. Rivera, 719 So.2d 335, 337 (Fla. 1st DCA 1998). “[I]n moving, for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to - the state that the trier of fact might fairly infer from the evidence." Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004).

Johnson argues the trial court erred in denying his motion for judgment of acquittal regarding the charge for theft of a vehicle, as the State failed to satisfy the required element of intent. Specific intent is an. essential element of the crime of theft. Redding v. State, 666 So.2d 921, 922 (Fla. 1st DCA 1995). “A person who takes possession in the good faith belief that he or she has a right to the property lacks the requisite intent to commit theft.” Bartlett v. State, 765 So.2d 799, 799 (Fla. 1st DCA 2000). The specific intent to commit a theft must be present at the time of the taking. Adams v. State, 443 So.2d 1003, 1006 (Fla. 2d DCA 1983). “Where it clearly appears that the taking of property was consistent with honest conduct, as where the taker honestly believes that he or she has a right to property, the taker cannot be convicted of theft, even though the taker may have been mistaken ” Rodriguez v. State, 396 So.2d 798, 799, (Fla. 3d DCA 1981). A criminal defendant’s good faith belief that he is entitled to take possession of property is a complete defense to theft crimes. Id. “Moreover, when a ‘taking was in the open, with no subsequent attempt to conceal it, and there was no concealment nor denial of such taking, but on the other hand, an express avowal -thereof,’ a strong presumption arises that the- defendant had no felonious intent.” Ginn v. State, 26 So.3d 706, 712 (Fla. 2d DCA 2010)(quoting Maddox v. State, 38 So.2d 58, 59 (Fla. 1948)).

In the present case, Johnson repossessed the vehicle in broad daylight and contacted police to report the intended re-possession as a result of non-payment of a loan. The trial court improperly relied on: 1) a statement made by Johnson to an officer days after the taking, in which he said he would not. return the car, even if Ms, Sledge were to pay the past due amount; and 2) on testimony that, there was a “gift” notation on the car’s title, as well as Johnson’s signature, which could indicate Appellant’s intent to take the vehicle. Reliance on these statements was error due to the requirement that a defendant possess the intent at the time of the taking. The evidence presented regarding Johnson’s intent at the time of taking supports only a conclusion that he repossessed the car as collateral for the unpaid loan. Accordingly, the State failed to prove that Johnson possessed the requisite intent at ther time of the re-possession to support a prima facie case for grand theft auto.

Theft of Property

The Double Jeopardy Clause of the Florida Constitution provides that “[n]o person shall be ...' twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. “A separate crime occurs only when there are separate and distinct acts of seizing the property of another.” Moore v. State, 904 So.2d 647, 648 (Fla. 4th DCA 2005) (quoting Johnson v. State, 597 So.2d 798, 799 (Fla. 1992)). “A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, this Court’s review is de novo.” State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014). The Florida Supreme Court has established a rule for analyzing double jeopardy issues where the 'defendant is accused óf taking a single victim’s property:

[Cjourts. should look to whether there was a separation of time, place, or circumstances between the initial armed robbery and the subsequent, grand theft, as those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent.

Hayes v. State, 803 So.2d 695, 704 (Fla. 2001).

Florida courts have continuously held that dual convictions for grand theft auto and theft of property within the vehicle at the time of the taking violate double jeopardy principles. See Senelus v. State, 994 So.2d 493 (Fla. 3d DCA 2008); Holmes v. State, 923 So.2d 557 (Fla. 1st DCA 2006); Ford v. State, 849 So.2d 477 (Fla. 4th DCA 2003); Mixson v. State, 857 So.2d 362 (Fla. 1st DCA 2003); Beaudry v. State, 809 So.2d 83 (Fla. 5th DCA 2002); Sirmons v. State, 634 So.2d 153 (Fla. 1994).

When the subject re-possession occurred, personal items were in the car, inclusive of a heart monitor. In response to Johnson’s argument that the charges of grand theft auto and grand theft of property (later reduced to petit theft) violate double jeopardy, the State asserts the “taking” of the personal property occurred three days after the vehicle repossession when Johnson did not allow Ms. Sledge to collect it. In essence, although the personal belongings were inside, the vehicle when re-possessed, Johnson’s failure to return the belongings, to the owner of the car after re-possession constitutes a separate and distinct crime not flowing from the same criminal episode. We cannot agree. There must be sufficient, separation in time, place, and circumstance between the two alleged theft offenses to avoid a double jeopardy problem. Hayes, 803 So.2d at 705; Mixson, 857 So.2d at 365. Here, there is no such separation, as one taking of the vehicle and its contents occurred. As in Mixson, the present case will only support a conclusion of one continuous criminal act with a single criminal intent. See Beaudry, 809 So.2d at 84 (holding conviction for grand theft of motor vehicle and grand theft violated double jeopardy as there was no separation when the ear contained computer equipment); Ford, 849 So.2d at 478 (holding charges violated double jeopardy when construction equipment already in car at time of theft).

REVERSED and REMANDED with instructions to vacate the convictions for grand theft auto and theft of property, and to reséntence Appellant accordingly.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.


author: MAKAR, J.

text:
    R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. Colette S. O’HARA, as Personal Representative for the Estate of Garry L. O’Hara, Appellee.
    CASE NO. 1D15-5764
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017

      ■ Charles F. Beall, Jr. and Larry. Hill of Moore, Hill & Westmoreland, P.A., Pensacola, Florida, and Michael A. Carvin of Jones Day, Washington, D.C., for Appellant.
    John S. Mills of The Mills Firm, P.A., Tallahassee, Florida, and Mark A. Avera of Avera & Smith, Gainesville, Florida, for Appellee.
   MAKAR, J.

In this tobacco case, jurors returned an almost $15 million verdict for compensatory damages against R. J. Reynolds (“RJR”), followed thereafter by a $20 million award for punitive damages. RJR raises a number of issues, all of which we affirm without discussion, except its claim regarding a special jury instruction. requested by counsel for Colette S. O’Hara, the wife of decedent, Gary O’Hara.

Mrs. O’Hara sued RJR, asserting four claims arising from her husband’s death: wrongful death, strict liability, fraudulent concealment, and conspiracy to fraudulent ly conceal. At trial, her counsel requested a special jury instruction related to her claim for fraudulent concealment, advancing the argument that the instruction was appropriate in light of this Court’s decision in R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010). The proposed instruction read:

Plaintiff need not provide direct evidence of Mr. O’Hara’s reliance on any specific statement by Reynolds or its co-conspirators. You may instead infer Mr. O’Hara’s reliance on such statements- if the evidence as a whole supports such an inference. You may decline to infer -such reliance. .

In the circuit court, and now oh appeal, O’Hara urged that the sole basis for this specific instruction was that it was necessary to prevent RJR’s trial counsel from inaccurately arguing' the meaning of Martin -during . closing arguments. O’Hara’s counsel argued at trial as follows:

And I think that this instruction is probably an instruction that need not.be given but for an argument that we expect them to make in their dosing, and that argument is, if they were to argue to the jury that there is no reliance here because no statement—there’s no evidence that he heard any statement, that would be suggesting to the jury something that the law is the opposite of. And so if they will agree to not make that argument, we don’t need the instruction.

O’Hara’s apparent concern was that RJR would be poiritin£ the jury to a lack of direct evidence that Mr. O’Hara relied on tobacco' advertisements, which could mislead the jury into believing it could not infer' reliance based on other evidence, such as extensive industry'advertising.'

RJR countered that the instruction was improper because it was “basically a comment on the sufficiency of the evidence” that was highly prejudicial given the dearth of evidence showing “any reliance or [an] inference of reliance at all.” It pointed out that the standard instruction on inferences (“You may, draw reasonable inferences from the evidence”) was adequate, saying that the proposed instruction established a lesser burden that was improper. RJR noted that the proposed instruction was “not given anywhere else in the state,” which appears to be the case. It also urged that- Martin was not.a jury instruction case, but an evidentiary sufficiency case that concerned only whether the plaintiff-in that case presented enough evidence to justify upholding the .verdict on appeal.

The trial judge, signaling some discomfort because no appellate opinion had yet addressed such an instruction since Martin was decided in 2010, said he was “willing to- give it if the Plaintiff asks for it” but noted that “sometimes prudence is—-you know, restraint is a better course.” As such, he said the “question becomes, is it worth spinning the wheel on an issue that may be reversible error for this language?” He left it to O’Hara’s counsel to “tell me whether or not you want to tie the knot in the noose” by giving the instruction; O’Hara asked that it be given, and it eventually was. Counsel for O’Hara offered to remove the instruction if RJR would agree to limit its arguments, but. it declined. The standard instruction on inferences was given as was the “Martin” instruction, as the parties have dubbed it;

Turning to whether the trial court erred in giving the Martin instruction, the only reason supporting its use was to prevent RJR from-making closing arguments that O’Hara’s counsel felt would be legally improper; But, as-a general matter, jury instructions are not designed to be used as pre-emptive shields to stave off a party’s ability to argue its ease; rather, a system of objections and trial court rulings serves to constrain closing arguments during which each.side has a degree of latitude to advocate how the jury should construe the.evidence.’ RJR was entitled to argue that no direct evidence of reliance existed and that no evidence existed by which an inference can be drawn as to O’Hara’s reliance on tobacco advertising; that is an entirely appropriate strategy given O’Hara’s obliviousness as to the industry’s misleading advertising (he only cared that he had cigarettes and his wife simply bought the cheapest ones). An instruction, designed solely to prevent RJR from arguing what it believed the evidence showed, was improper.

Buttressing this conclusion is if the trial court refused to give the instruction, that exercise of discretion would be supportable under the applicable test as recently stated in R.J. Reynolds Tobacco Co. v. Jewett, 106 So.3d 465, 467 (Fla. 1st DCA 2012):

A trial court abuses its discretion when it fails to give a proposed instruction that is (1) an accurate statement of the law, (2) supported by the facts of the case, and (3) necessary for the jury to properly resolve the issues, so long as the subject o'f the proposed instruction is not covered in other instructions given to the jury and the failure to instruct is shown to be prejudicial.

Putting aside whether the Martin instruction was accurate legally and supportable factually, it was unnecessary for the jury to “properly resolve the issues” related to reliance. That the proposed instruction was consistent with the principles upon which Martin was decided does not mandate a separate instruction on inferences, particularly when the standard instruction was given much like in Martin. The standard instruction was'all that was necessary to give both sides the freedom to argue their perspectives on whether an inference should be drawn from the evidence. If RJR argued that neither direct nor circumstantial evidence supported reliance, O’Hara’s counsel was free to undermine and discredit such an argument by pointing to the standard instruction that says the jury may “draw reasonable inferences from the evidence” and that a'reasonable inference is that O’Hara knew of the pervasive advertising by the tobacco industry. A special Martin instruction was unnecessary; at most, if RJR argued that direct evidence was necessary by law to establish reliance, O’Hara’s counsel was free to object arid obtain a ruling'to the contrary. In addition, the proposed Martin instruction was potentially confusing because its wording differed from the" standard instruction, the latter stating that “reasonable inferences” could be drawn from the evidence while the former mentions nothing about “reasonableness” and, instead, states that the “evidence as a whole” must support an inference. These are not substantial differences, but dissimilar enough to create confusion.

Notably, Martin didn’t involve a jury instruction issue; instead, it focused solely on the appellate question of whether the jury in .that case could have inferred that Martin relied on- the “pervasive misleading advertising campaigns for the Lucky Strike brand in particular and for cigarettes in general, and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health.” Martin, 53 So.3d at 1069. Martin was a sufficiency of the evidence ease that—on its face—did not purport to break new legal ground, though it has been interpreted differently, distinguished, and rejected by some courts. See id. All the appellate court in Martin did was determine whether sufficient evidence existed to support the inference that Martin likely relied on the “pervasive misleading” ad campaign. Id. at 1066-72, And it involved facts unlike this case, one in which O’Hara—unlike Martin—was aloof if not disengaged from the branding. and marketing efforts of the tobacco industry. As such, Martin is not a good candidate to support a new jury instruction.

Concerning the potential prejudicial effect against the company, Reynolds states that the Martin instruction left a “misleading impression [that] was particularly harmful given the powerful evidence that Mr. O’Hara did not rely on any statement from the tobacco industry.” We do not disagree that the instruction may have unduly swayed some jurors in favor of O’Hara. But we cannot determine from the record whether this effect on the jury was the cause of prejudice to RJR. The reason is the unique two-path causation instruction used in this case, but not used in other jurisdictions, such as Duval County, which states:

In order to be a legal cause of cancer, Plaintiff. must show that Mr. O’Hara reasonably relied to his detriment on statements by Reynolds, which statements omitted material information concerning the health effects of cigarettes, or their addictive nature, or both, or that the omission or concealment of that information was a legal cause of his cancer.

(Emphasis added). The highlighted disjunctive “or” shows that jurors in this case could find legal cause by either O’Hara’s reliance on RJR’s statements or the “omission or concealment of that information” from O’Hara. In contrast, the latter part of the instruction on omission/concealment is not given in some jurisdictions, such as Duval County.

Although the jury here may have found causation under either a reliance theory or an omission/concealment theory (or both), the Martin instruction only impacted the reliance theory. For all we. know, the jury may have found legal causation solely on a theory of omission/concealment, such that the reliance-based Martin instruction played no role in its decision-making. Had the Duval County instruction been used (or a special verdict form on causation), we would have clarity as to whether the proposed instruction directly impacted the jury’s decision. Because it is indeterminate whether the proposed instruction affected the jury’s verdict, affirmance is-in order. Golian v. Wollschlager, 893 So.2d 666, 667 (Fla. 1st DCA 2005) (stating that jury instruction decisions “will not be disturbed on appeal absent a clear demonstration that prejudicial error occurred”). Unlike in Gencorp, Inc. v. Wolfe, 481 So.2d 109, 112 (Fla. 1st DCA 1985), where the jury instruction was akin to a directed verdict, for the plaintiff, we cannot conclude such is the case here.

AFFIRMED.

ROBERTS and JAY, JJ„ CONCUR.

      . The standard instruction used in Martin stated, "In determining the facts, you may draw reasonable inferences from the evidence. You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts shown , by the evidence in this case, but. you should not speculate on atiy matters outside the evidence." Fla. Std. Jury Instr. (Civ.) 2.1 (adopted in In re Standard Jury Instructions Civil Cases, 515 So.2d 737, 737 (Fla. 1987)). That standard instruction has been replaced by another, 601.1, entitled "Weighing the Evidence," which states in relevant part: “Your job is to determine what the facts are. You may use reason and common sense to reach conclusions. You may'draw-reasonable infer-énces from the evidence. But you should not guess about things that were not covered here. And, you must always apply the law as I have explained it to you.” Fla. St. Jury Instr. (Civ.) 601.1 (2017) (adopted in In re Standard Jury Instructions In Civil Cases-Report No, 09-01 (Reorganization of the Civil Jury Instructions); 35 So.3d 666 (Fla. 2010)),

      . See, e.g., Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1178-79 (11th Cir. 2017) (majority noting that Florida district courts of appeal "disagreed about how the smokers would prove causation in individual cases") (citing Florida appellate cases); Waggoner v. R.J. Reynolds Tobacco Co., 835 F.Supp.2d 1244, 1278-79 (M.D. Fla. 2011) (departing from Martin due to its lack of “specific instructions on legal causation on the negligence and strict liability claims” in that case); Berger v. Philip Morris USA, Inc., 101 F.Supp.3d 1228, 1239 (M.D. Fla. 2015) (concluding that "Martin does not properly state the appropriate standard as to the proof of [plaintiff’s] alleged detrimental reliance"); R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 716 (Fla. 4th DCA 2011) (noting "[n]owhere does [Martin] require a finding of legal causation on negligence or strict liability independently”).


author:
PER CURIAM.
      LAMBERT, J.,

text:
    Samuel D. STRAITIFF, Petitioner, v. STATE of Florida. Respondent.
    Case No. 5D16-2913
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 13, 2017
    Samuel D. Straitiff, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Petitioner’s motion for rehearing, in part, withdraw the December 15, 2016 unelaborated order denying his petition for writ of habeas corpus, and substitute the following opinion in its stead.

On the evening of January 8, 2012, a deputy with the Sumter County Sheriffs Department, posing as the mother of a fourteen-year-old daughter, posted an ad on Craigslist looking for a-man to have sex with the fictional minor. Petitioner responded to the ad by e-mail and, shortly before midnight, discussed engaging in sexual activity with the minor. Petitioner and the “mother” agreed that on the following day, Petitioner and “daughter” would meet to-engage in sexual activity. Petitioner and the “mother” e-mailed each other that next afternoon, confirming the meeting that evening between Petitioner and “daughter” for the sexual encounter. At 6:52 p.m. on January 9, 2012, Petitioner arrived at the arranged location where he was ■ promptly arrested by the Osceola County Sheriffs Department.

Petitioner was charged with a single violation of section 847.0135(4)(b), Florida Statutes (2011), which prohibits traveling to meet a minor to engage in unlawful sexual conduct after using computer services or devices to make a prohibited solicitation. The State also charged Petitioner with a ' single violation of section 847.0135(3)(b), which prohibits the use of computer services or devices to solicit the consent of a parent or a person believed to be the parent, legal guardian, or custodian of a child to engage in unlawful sexual contact with the child. Lastly, Petitioner was charged with violating section 800.04(4)(a) for attempting, to engage in sexual activity with a person twelve years of age or older but less than sixteen years of age.

Petitioner was convicted at trial as charged. The trial court sentenced Petitioner to serve seventy-five months in prison for the traveling conviction. For the other ' two '' convictions, Petitioner was placed on concurrent terms of five years of sex offender probation, consecutive to his prison sentence. On direct appeal, Petitioner cited to the Second District Court of Appeal’s then-recent opinion in Shelley v. State, 134 So.3d 1138, 1141 (Fla. 2d DCA 2014), which held that convictions for traveling to meet a minor to engage in unlawful sexual conduct after solicitation and for solicitation of a minor via the computer for unlawful sexual conduct in the course of one criminal transaction or episode violated the constitutional prohibition against double jeopardy. Pétitioner argued that based on Shelley, his. dual convictions for solicitation and traveling after solicitation also violated double jeopardy principles. In response, the State essentially argued that Shelley was wrongly decided and -that this court should instead follow the precedent of the First District Court of Appeal in State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), and affirm the convictions because, as the court in Murphy concluded, the “clear legislative intent” was to punish these two crimes separately. The State alternatively asserted that Petitioner’s convictions for these two crimes should be affirmed even if the convictions were based on the same criminal act, “as is often the case.” This court affirmed Petitioner’s convictions and sentences without opinion. Straitiff v. State, 147 So.3d 1015 (Fla. 5th DCA 2014).

Not long after the release of the affir-mance in this case, the Florida Supreme Court issued its opinion in State v. Shelley, 176 So.3d 914 (Fla. 2015), resolving the conflict between the Second District’s decision in Shelley and the First District’s decision in Murphy as to whether the legislature intended to allow separate convictions for these two offenses based on the same conduct. The court first provided the following factual - and procedural background:

“Dean Shelley responded to a Craig-slist ad posted in the Casual Encounters section by a police officer posing as a single mother nudist ‘looking for family fun.’” Shelley, 134 So.3d at 1139. Over thp course of several days, Shelley made arrangements via electronic communicar tions, including e-mail, instant messenger, and text message, to- have sex with the “mother” and her fictitious ten-year-old daughter. Id. Shelley was- arrested when he arrived at the arranged meeting place. Id.
.The State charged Shelley with a single violation of section 847.0135(3)(b), which prohibits the use of computer services or devices to solicit the consent of a parent or a person believed to be the parent, legal guardian, or custodian of a child to engage in unlawful sexual conduct with the child. In addition, the State charged Shelley with a single violation of section 847.0135(4)(b), which prohibits traveling to meet a minor to engage in unlawful sexual conduct after using computer services or devices to make a prohibited solicitation. The State relied upon the same conduct to charge both offenses.
Shelley moved to dismiss, arguing, among other things, that dual convictions for solicitation and traveling after solicitation based upon the same conduct violate the constitutional prohibition against double jeopardy because solicitation is a lesser-included offense of traveling after solicitation. The trial court denied Shelley’s motion, and Shelley pled guilty, but reserved his right to appeal the denial of his motion to dismiss'. ...
On appeal, the Second District held that Shelley’s convictions for solicitation and traveling after solicitation impermis-sibly place him in double jeopardy because the Legislature has not explicitly stated its intent to allow separate convictions for these offenses based upon the same conduct and because the solicitation offense is subsumed by the traveling offense. Shelley, 134 So.3d at 1141-42. Accordingly, the Second District vacated Shelley’s conviction and sentence for the lesser offense of solicitation. Id. at 1142: In so holding, the Second District certified conflict with the First District’s decision in Murphy on the issue of the Legislature’s intent. Id.

176 So.3d at 916-17 (footnote omitted).

The Florida Supreme Court approved the Second District’s decision in' Shelley and disapproved the First District’s decision in Murphy on the issue of the Legislature’s intent. Id. at 916. The court held that based on the plain language of section 847.0135;the Legislature had not explicitly stated its intent to authorize separate convictions and punishments for conduct that constituted both solicitation under subsection (3)(b) and traveling after solicitation under subsection (4)(b). Id. at 919. The court concluded that because the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, double jeopardy principles prohibit separate convictions based upon the same conduct; thus, Shelley’s solicitation conviction and sentence as the lesser of the two offenses was properly vacated. Id.

Based upon Shelley and our court’s post-Shelley opinions in Stapler v. State, 190 So.3d 162 (Fla. 5th DCA 2016), and Pamblanco v. State, 199 So.3d 507 (Fla. 5th DCA 2016), Petitioner now petitions to have his conviction and sentence for solicitation vacated. In Stapler, the defendant was charged with soliciting on or between February 7, 2012, and February 9, 2012, and with traveling* after solicitation on February 9, 2012. Stapler entered an open, no-contest plea to bpth charges, thus preserving his right to appeal any double-jeopardy violation. 190 So.3d at 164. The only issue that we addressed was “whether Stapler can be convicted of multiple solicitations despite being charged with single counts of solicitation and traveling based on conduct occurring over the same specified period of time.” Id. The State argued that the evidence established multiple violations sufficient to justify affirming the convictions for solicitation and traveling after solicitation. Id.

In reversing Stapler’s solicitation conviction, we first acknowledged that while the State can convict a defendant on multiple counts of solicitation where multiple counts are alleged and established,' we would not deny a double jeopardy claim “based on uncharged conduct simply because it could have been charged.” Id. at 164-65 (quoting Shelley, 134 So.3d at 1141-42). We held that “[bjecause Stapler was charged with single counts of solicitation and traveling based on the same conduct ... [his] dual convictions under both subsections (3)(b) and (4)(b) violate his double-jeopardy rights.” Id. at 165 (citing Agama v. State, 181 So.3d 571, 571 (Fla. 2d DCA 2015)).

Similarly, in Pamblanco, the defendant was charged with unlawful solicitation and travel that took place over several days in February 2010. 199 So.3d at 507. We noted that while “the State could have charged [Pamblanco] with ... multiple offenses occurring on multiple occasions,” the State charged him with “one count of solicitation and one count of traveling based on the same conduct.” Id. Relying on Stapler, we found that “the dual convictions and sentences violated [Pamblanco’s] right to be free from double jeopardy” and reversed his solicitation conviction. Id.

Here, the State charged Petitioner with committing one count of solicitation occurring on or between January 7 and January 10,2012, despite the trial evidence establishing that the State first placed the Craigslist ad on the evening of January 8 and that Petitioner was arrested following his commission of the traveling offense on January 9. We see no material distinction between the facts and allegations of this case and those in Stapler and Pamblanco. Petitioner raised this issue on his direct appeal and our affirmance without opinion precluded him from seeking relief in the Florida Supreme Court while Shelley was pending before that court. See Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980) (holding that the Florida Supreme Court lacks jurisdiction to review per curiam decisions of district courts of appeal issued without opinion). Therefore, we conclude that this is one of those rare cases in which we should reconsider our earlier ruling on direct appeal. See Dickerson v. State, 204 So.3d 544, 545 (Fla. 5th DCA 2016) (“[A]n appellate court has the authority to correct a ‘manifest injustice’ by way of habeas corpus proceedings.”) (citing Harris v. State, 12 So.3d 764, 765 (Fla. 3d DCA 2008)). Accordingly, we vacate Petitioner’s conviction and sentence for solicitation and remand for resentencing based upon a corrected criminal punishment code score-sheet. See Pamblanco, 199 So.3d at 507; Lashley v. State, 194 So.3d 1084, 1085 (Fla. 1st DCA 2016).

PETITION FOR WRIT OF HABEAS CORPUS GRANTED, IN PART. CONVICTION AND SENTENCE FOR SOLICITATION VACATED.

COHEN, C.J., and WALLIS, J., concur.

LAMBERT, J., concurs and concurs specially, with opinion.

LAMBERT, J.,

concurring and concurring specially.

In Shelley, our supreme court made clear that double jeopardy principles prohibit separate convictions for solicitation under section 847.0135(3)(b) and traveling after solicitation under section 847.0135(4)(b) when based upon the same conduct. 176 So.3d at 919. Conversely, there is no double jeopardy violation for dual convictions of these statutes when not based upon the same conduct. The difficulty in these cases is what constitutes the “same conduct.”

The clear case is when a defendant uses a computer one time to solicit sexual activity with a minor, receives consent from the parent or the person believed to be the parent, legal guardian, or custodian to engage in the unlawful sexual conduct with the minor child, and thereafter travels to meet the minor for the sexual activity. However, the fact patterns in the vast majority of these cases that reach the appellate courts are not that direct. For example, in Shelley, the court wrote that “over the course of several days” the defendant made arrangements via various computer services or devices to have sex with the “mother” and the fictitious minor daughter, but “[t]he State relied upon the same conduct to charge both offenses.” Id. at 916-17.

The Legislature has specifically provided under section 847.0135(3) that each separate use of a computer service or device to solicit may be charged as a separate offense. Much of the difficulty in determining whether the dual convictions were based upon the same conduct could be avoided by the State simply charging multiple counts of solicitation, if supported by the evidence, along with one count of traveling. Thereafter, if the case proceeded to trial, appropriate jury instructions would be provided to the jury explaining to them that there must be at least two separate and distinct acts of solicitation to hold the defendant accountable on both a traveling violation and solicitation violation, and the verdict forms would allow the jury to separately determine whether the State has established, beyond a reasonable doubt, each of the solicitation counts. See Lee v. State, 223 So.3d 342, 375-76 (Fla. 1st DCA 2017) (Makar, J., concurring in part, dissenting in part). At that point, it becomes clearer for the court and the parties whether a potential double jeopardy violation exists and, where appropriate, can be avoided by simply vacating the one solicitation conviction subsumed in the traveling conviction prior to sentencing. Cf. Barnett v. State, 159 So.3d 922, 923-25 (Fla. 5th DCA 2015) (affirming a defendant’s solicitation conviction charged as being committed on October 24, 2012, but vacating an October 26, 2012 solicitation conviction charged as occurring on the same date as the defendant’s traveling after solicitation offense); Hartley v. State, 129 So.3d 486, 488-91 (Fla. 4th DCA 2014) (affirming separate solicitation convictions charged as occurring on November 2, 2011, and November 3, 2011, but vacating a solicitation conviction charged as occurring on November 4, 2011, where the defendant was also charged and convicted of traveling on November 4, 2011, to meet a minor to commit an unlawful sex act following solicitation).

With this observation, I concur 'in the majority opinion.

      , In his petition, Petitioner also raised seven separate grounds of ineffective assistance, of appellate counsel that we initially concluded, and on motion for rehearing,still conclude, to be meritless,

      . The specific details of the charges asserted against Stapler are evidenced by the information filed and contained in the record of Stapler’s appeal. “This court can take judicial notice of its own records.” Scheffer v. State, 893 So.2d 698, 699 (Fla. 5th DCA 2005) (citing Sinclair v. State, 853 So.2d 551, 552 n.2 (Fla. 1st DCA 2003); Fyler v. State, 852 So.2d 442, 443 (Fla. 5th DCA 2003)).


author: KELSEY, J.

text:
    Scott Michael SHEHEANE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4366
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017
    Andy- Thomas, Public Defender, Steven Seliger, Assistant Public Defender, and Justin Karpf, Certified Legal Intern, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant Attorney General, and Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.'
   KELSEY, J.

In his ’ direct appeal after ‘ pléading to three violations of probation, Appellant argues the trial court erred in failing to make an independent detérmination of his competency ■ -after finding reasonable grounds to believe he was not competent. Although the record reflects that Appellant expressly waived a hearing and adjudication ■ on competency, we reverse and remand for further proceedings on competency because the-due process right to the court’s independent determination of competency cannot be waived.

Facts.

The facts are simple and undisputed. During the violation of probation proceedings, defense counsel raised the issue of Appellant’s competency, and requested a competency evaluation. The court found “reasonable grounds to believe [Appellant] may be incompetent to proceed,” and ordered professional evaluation. Although the court set a hearing date on competency, that hearing never occurred, and that omission is not explained in the record.

At a subsequent hearing set for dnóther purpose, Appellant decided to enter an open plea to probation violations. The plea colloquy included specific questions ánd answers about the competency issue, including discussion of professional evaluations that found Appellant legally competent, although mentally ill with bipolar disorder and depression. Defense counsel stated on the record his belief that Appellant was competent, and. reviewed briefly the results of the evaluations. However, there is no indication that the trial judge had the competency evaluations; and the evaluators were' not present.

Appellant agreed to Waive a hearing and judicial determination of competency. The written plea agreement reflected Appellant’s agreement that he believed' he was competent. The trial judge made no findings of Appellant’s competency and did not adjudicate. Appellant competent. The court sentenced Appellant to twenty years’ imprisonment.

Standard of Review.

Two competency issues are within the trial court’s'discretion: the threshold determination of whether reasonable grounds exist' to question a defendant’s competency, and 'the ultimate determination of whether a defendant is competent. See Peede v. State, 955 So.2d 480, 488-89 (Fla. 2007); Trueblood v. State, 193 So.3d 1060, 1061 (Fla. 1st DCA-2016). In contrast, our standard of review is de novo for the legal questions of waiver and due process in competency proceedings. Presley v. State, 199 So.3d 1014, 1017 (Fla. 4th DCA 2016). We find no abuse of discretion in the trial court’s threshold-determinationthat reasonable grounds existed to question Appellant’s competency. We find legal error in the trial court’s failure to conduct a hearing, independently adjudicate the issue of Appellant’s competency, and enter a written order on competency.

Procedures Cannot Be Waived.

As we have recognized before, the procedures required to evaluate and determine legal competence arise from due process rights. “A criminal defendant has a procedural due process right to the observance of procedures adequate to protect his or her right not to be tried or convicted while incompetent to stand trial.” Zern v. State, 191 So.3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014)). These procedures are embodied in Florida Rule of Criminal Procedure 3.210(b), which provides as follows:

If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing.

Procedurally, once a court has reasonable grounds to question a defendant’s mental health, it must hold a hearing. Zern, 191 So.3d at 964; Trueblood, 193 So.3d at 1062; see also Charles v. State, 223 So.3d 318, 329 (Fla. 4th DCA 2017) (“A defendant cannot, either expressly or implicitly, waive the right to a competency hearing.”) (citing Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016)); A.L.Y. v. State, 212 So.3d 399, 403 (Fla. 4th DCA 2017) (“In other words, although the parties and the court may agree that the court may decide the issue of competency on the basis of the written reports alone, the juvenile can neither implicitly concede nor explicitly stipulate, to the ultimate issue of his own competency.”).

Adjudication Cannot Be Waived.

We have been clear: “an,independent competency finding is a due-process right that cannot be waived once a reason for a -competency hearing has surfaced.” Zern, 191 So.3d at 965. Even if evaluators unanimously deem a defendant competent, other evidence may indicate incompetence, including the court’s own observations. See id. at 964 (citing Dougherty, 149 So.3d at 678). It is this right to the trial court’s independent' assessment of competency that lies at the heart of the due process requirement. The court must make an independent finding of competence or incompetence—stipulations of competence are not permitted. Zern, 191 So.3d at 964 (citing Dougherty, 149 So.3d at 677); see also Baker v. State, 221 So.3d 637, 639-41 (Fla. 4th DCA 2017); Deferrell, 199 So.3d at 1061; Williams v. State, 169 So.3d 221, 222-23 (Fla. 2d DCA 2015).

We agree with the State that Appellant would appear to have waived the issues he now raises on appeal. There could hardly be a clearer case of waiver than this—oral and written, with advice of counsel and cautionary explanations by the trial judge—all memorialized in the court record and available for this Court’s review. However, waiver in the incompetency context is far different from waiver of other rights. Once reasonable grounds exist to question a defendant’s competency, there can be no waiver of the right to independent judicial evaluation and adjudication of competency. “[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently Vaive’ his right to have the court determine his capacity to stand trial.” Reynolds v. State, 177 So.3d 296, 299 (Fla. 1st DCA 2015) (quoting Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)).

The nature of competency goes to the heart of whether a defendant has the capacity to make a cogent, legally binding decision. To find, as the' trial court did here, there were reasonable grounds to believe Appellant may be incompetent, and then allow that same potentially incompetent individual to waive his right to determine competency, does not comport with due process. This is a denial of due process, resulting in a fundamental error that requires our intervention despite Appellant’s failure to preserve it below. See Dougherty, 149 So.3d at 676 (“ ‘[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.’ ”) (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)); Rumph v. State, 217 So.3d 1092, 1095 (Fla. 5th DCA 2017); Jackson v. State, 880 So.2d 1241, 1243 (Fla. 1st DCA 2004). We are constrained to reverse.

Remedy.

On remand, the court shall hold a hearing on Appellant’s competency, at which Appellant must be present. The court shall adjudicate Appellant’s competency and enter a written order on competency. The court may make “a retroactive determination of competency” if “there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.” See Zern, 191 So.3d at 965. The parties may agree to the use of the previous evaluators’ written reports, which shall be filed with the court and placed in the record. See Dougherty, 149 So.3d at 679 (allowing use of written reports in lieu of live testimony if the parties agree to do so, provided trial court makes an independent determination and enters a written order).

If the court finds Appellant was competent at the time of the plea hearing, it must enter a nunc pro tunc order, and the judgment and sentence need not change. See Zern, 191 So.3d at 965. If, however, the court cannot make a retroactive determination or it finds Appellant was incompetent at the time of the hearing, the court must hold a new hearing on the violations of probation, so long as Appellant is presently competent. See id.

REVERSED and REMANDED with instructions.

WINOKUR and WINSOR, JJ., CONCUR.

      . A defendant can be mentally ill but still legally competent. See Thompson v. State, 88 So.3d 312, 319 (Fla. 4th DCA 2012) (quoting cases holding that mental illness or deficiency, low intelligence, and "bizarre, volatile, and irrational behavior” alone do not establish legal incompetence to stand trial; rather, “the evidence must indicate a present inability to assist counsel or understand the charges") (citations omitted).

      . Defense counsel filed a written motion for competency evaluation, in compliance with Florida Rule of Criminal Procedure 3.210. While the rule does not expressly require a written motion,’ and such motions are often made orally, we observe that the better practice is to file a compliant written motion to raise the process to the appropriate level of attention and to create a complete record.

      . The State misplaces its reliance on our earlier decision in Thomas v. State, 894 So.2d 1000 (Fla. 1st DCA 2005). In Zern, we expressly found that Dougherty superseded Thomas. Zern, 191 So.3d at 965 n.1.


author: SILBERMAN, Judge.

text:
    Irvin Jonathan SIMMONS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1023
    District Court of Appeal of Florida, Second District.
    Opinion filed October 18, 2017

      Howard L. Dimmig, II, Public Defender, and-Julius ,-J. Aulisio,--Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and' Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

After entering a no contest plea to a lesser included offense, Irvin Jonathan Simmons appeals his sentence of sixty months in prison for the second-degree felony of sale or delivery of a controlled substance. He contends that the trial court improperly increased the negotiated sentence of thirty-six months after Simmons failed to appear for his sentencing hearing. In the alternative, he argues that his trial counsel rendered ineffective assistance for failing to object to the sentence. Because Simmons did not preserve the sentencing issue by seeking to withdraw his plea and the record does not show ineffective assistance of counsel on the face of the record, we affirm.

Simmons was charged with the first-degree felony of sale or delivery of a controlled substance within 1000 feet of a school, He entered into an agreement to enter a plea to the second-degree felony of sale of a-controlled substance in return for a sentence of thirty-six months in prison with no minimum mandatory. The trial court indicated that as long as Simmons appeared for the sentencing hearing on November 5 at 11 a.m,, “that’s the sentence that [the court would] impose, but if you don’t appear, then the deal is off and the original charge of' sale or delivery of controlled substance within a thousand feet of a school ... could be reinstated.” Simmons acknowledged his understanding of the terms and entered the no contest plea.

Simmons failed to appear for sentencing on November 5 and was picked up by lay? enforcement on a warrant in late December. At sentencing, the prosecutor asserted that while Simmons violated the plea agreement, the State was not reinstating the original first-degree felony charge. Rather, sentencing was up to the trial court. After inquiring as to Simmons’ failure to appear, the trial court imposed a sentence of sixty months ih prison with credit for all time served.

Simmons contends that the trial court erred in imposing a greater sentence than the thirty-six months to which the parties had agreed. The plea agreement was not the typical Quarterman agreement whereby the defendant agrees that if he does not appear for sentencing “the trial court could impose any greater lawful sentence” rather than the sentence specified in the plea agreement. Neeld v. State, 977 So.2d 740, 743 (Fla. 2d DCA 2008); see also Henson v. State, 977 So.2d 736, 739 (Fla. 2d DCA 2008) (noting that Henson had not agreed that “he could be sentenced to any lawful sentence if he did not appear” for the scheduled sentencing hearing). Rather, Simmons had agreed that if he did not show up for sentencing it would be a violation of the plea agreement and his plea to the lesser included charge would not have to stand; the State could reinstate the originally charged first-degree felony, for which he would be subject to thirty years’ imprisonment.

If an agreement does not provide that the trial court can sentence the defendant to any lawful sentence if he fails to appear for sentencing, then the trial court cannot “simply proceed to sentencing as if the plea had been an open plea.” Henson, 977 So.2d at 739. Therefore, if the trial court wanted to exceed the negotiated sentence, it was required to give Simmons an opportunity to withdraw his plea. “[A] trial court retains'the‘authority to alter a prior plea arrangement up until the time sentence's imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence.” Rollman v. State, 887 So.2d 1233, 1235 (Fla. 2004); see also Williamson v. State, 974 So.2d 582, 583 (Fla. 2d DCA 2008) (“Both sides recognize that the trial court is not bound by any plea agreement.”). However, to preserve this issue for review, Simmons was required to file a motion to withdraw his plea, which he did not do. See McClough v. State, 74 So.3d 158, 160 (Fla. 2d DCA 2011).

Simmons argues that defense counsel’s failure to object at sentencing and failure to file a motion to withdraw the plea constitutes ineffective assistance of counsel on the face of the record, relying upon cases such as Lowery v. State, 22 So.3d 745 (Fla. 2d DCA 2009). Lowery is distinguishable in that counsel agreed with the trial court’s erroneous recollection of the plea agreement, and Lowery entered her plea to the original charged crime, not a lesser included offense. Id. at 746, 748. Lowery received the maximum prison sentence of five years for the charged crime rather than the negotiated eighteen months. Id. at 746.

Here, counsel’s failure to object or to file a motion to withdraw plea is not ineffective on the face of the record when there is a possible tactical reason for counsel’s inaction. See McClough, 74 So.3d at 160; Henson, 977 So.2d at 739; Williamson, 974 So.2d at 584. Based on the circumstances here, this could have been a tactical decision since the withdrawal of the plea could have resulted in the reinstatement of the original charge with the risk of a thirty-year sentence with a minimum mandatory, rather than the imposed five-year sentence with no minimum mandatory. Further, even if the State elected not to reinstate .the original charge, Simmons would have been exposed to the possibility of being convicted on the second-degree felony and being sentenced to up to fifteen years.

Because of his breach of the plea agreement, Simmons is not entitled to imposition of the negotiated sentence of thirty-six months. He has not sought to withdraw the plea agreement and has not demonstrated ineffective assistance of counsel on the face of this record. Accordingly, we affirm the judgment and sentence.

Affirmed.

BLACK and SALARIO, JJ., Concur.

      . Quarterman v. State, 527 So.2d 1380 (Fla. 1988).