text:
    Bryan HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1101
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

Appellant, Bryan Harris ("Harris"), appeals his final judgment of conviction and sentence, challenging the denial of his motion to suppress physical evidence from the warrantless search of his backpack following his arrest. Because the warrantless search was not valid as either a search incident to arrest or an automobile search, we reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

About 10:44 a.m. on Thanksgiving Day 2015, Miami Gardens Police Officers Blanco and Santiesteban were patrolling the residential area of NW 191st Street and 32nd Avenue in an unmarked vehicle. The area is known for dirt bikes being illegally driven on the streets.

The officers heard the loud noise of such a dirt bike and observed Harris driving one in their direction. The dirt bike lacked headlights, taillights, turn signals, rearview mirrors, and a tag. Officer Santiesteban, the driver, conducted a U-turn and followed Harris. When Harris ran a red light, the officers activated their lights and siren in order to conduct a traffic stop of Harris. Harris attempted to drive away, but this ended quickly as Harris fell off the dirt bike. Officer Blanco, the passenger, then exited the unmarked police vehicle and arrested Harris for reckless driving and driving an unregistered vehicle. Officer Blanco removed a backpack from Harris's person, handcuffed Harris, and placed the backpack on the hood of the unmarked police vehicle. Officer Blanco then directed Harris, who was handcuffed, to sit on the grass approximately five feet from the officers' vehicle.

In their attempt to identify Harris and the dirt bike, Officer Blanco asked Harris if he had any proof of ownership. Harris stated he had paperwork in his backpack and told Officer Blanco to look in the small front compartment of the backpack. Officer Blanco admitted that upon opening the front compartment, he found paperwork for the dirt bike. Officer Blanco further testified that Harris specifically told him not to open the main compartment of the backpack. When Officer Blanco opened the smaller compartment, he smelled marijuana and, based on that smell, proceeded to search the remainder of the bag, eventually finding marijuana, oxycodone, and drug paraphernalia.

Harris was subsequently charged with possession of marijuana, oxycodone, and drug paraphernalia. Harris filed a motion to suppress the physical evidence found within his backpack. At the two-day suppression hearing, the State presented the testimony of Officer Blanco and a portion of the deposition of Officer Santiesteban. The trial court denied the motion to suppress, finding that there was probable cause to stop Harris and that there was a valid search incident to arrest and determining the other presented arguments were either irrelevant or moot in light of the first two findings. Based on the trial court's ruling, Harris entered a plea of guilty and reserved his right to appeal the denial of his motion to suppress. This appeal timely followed.

II. STANDARD OF REVIEW

In reviewing a trial court's ruling on motions to suppress, "appellate courts ... accord a presumption of correctness ... to the trial court's determination of historical facts," but review de novo "mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth ... Amendment." Connor v. State, 803 So.2d 598, 608 (Fla. 2001). In considering the relevant case law, we are required "to adhere to the interpretations of the United States Supreme Court," but are "not bound to follow the decisions of other federal courts." State v. Markus, 211 So.3d 894, 902 (Fla. 2017) ; accord Smallwood v. State, 113 So.3d 724, 730 (Fla. 2013). If no U.S. Supreme Court precedent is factually or legally on point, we may review "Florida state precedent, as well as other state and federal decisions for guidance on a search and seizure issue." Markus, 211 So.3d at 902.

III. ANALYSIS

On appeal, Harris challenges the trial court's determination that the search of his backpack was valid as a search incident to his arrest. In response, the State supports affirmance of the trial court's determination, and also argues, in the alternative, that Harris consented to the search of his backpack.

A. Search Incident to Arrest

Warrantless searches " 'are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' " Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Searches conducted incident to the arrest of a person are one such exception. See United States v. Robinson, 414 U.S. 218, 224-25, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). However, as the Supreme Court has acknowledged, this exception has been applied inconsistently. See, e.g., Gant, 556 U.S. at 350, 129 S.Ct. 1710 (noting the "checkered history of the search-incident-to-arrest exception"); Chimel v. California, 395 U.S. 752, 755, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ("The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident.").

The State contends that the trial court was correct in finding that Officer Blanco's search of Harris's backpack was incident to arrest. First, the State argues that the backpack was a container within Harris's reach both at the time of his arrest and through the time of the search. See Chimel, 395 U.S. at 762-63, 89 S.Ct. 2034. Second, the State argues that, as a container on Harris's person at the time of his arrest, the backpack was subject to search even if it was removed from Harris's reach. Robinson, 414 U.S. at 236, 94 S.Ct. 467. Third, the State argues that the backpack was searchable under the automobile exception as most recently iterated by Gant. Finally, the State argues that under the tipsy coachman doctrine this Court may affirm the trial court's ruling by finding that Harris consented to the search of the back pack. We address each argument in turn.

1. Within Harris's Reach

Modern jurisprudence delineating the search incident to arrest exception begins with Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the Court held that when an individual is arrested, the police officer may search the arrestee's person and the area within his immediate control, the latter being "the area from within which he might gain possession of a weapon or destructible evidence." Id. at 763, 89 S.Ct. 2034. While the purpose of the exception is for officer safety and preservation of evidence, no showing that either exists is necessary for the search to fall within the exception. Robinson, 414 U.S. at 235, 94 S.Ct. 467. Instead, subsequent litigation has mostly dealt with the concept of the area within the control of the arrestee.

In the instant case, Harris's backpack was not in the area within his immediate control at the time of the search. As noted, Officer Blanco removed the backpack from Harris, handcuffed him, and then sat him down against a fence five feet from the car's hood. Officer Blanco placed the backpack on the hood, and within five minutes, examined it. Even if Harris was a combination of "an acrobat [or] Houdini," we do not see how Harris could have gained access to the backpack following his arrest. Thus, we find that Harris's backpack was outside his area of control. See State v. K.S., 28 So.3d 985, 987 (Fla. 2d DCA 2010) (finding an arrestee out of reach of car where he had been separated from car, handcuffed, and was under supervision of other officers). Accordingly, the search of the backpack cannot be upheld under this theory.

2. A Container on Harris's Person

As part of the search incident to arrest exception, courts have faced difficulty in determining whether a container on or near an arrestee may be searched. The basic premise is that an officer may seize, inspect, and search any container found on the arrestee's person during a search incident to arrest. See Robinson, 414 U.S. at 236, 94 S.Ct. 467. In Robinson, an officer conducting a search incident to arrest found a crumpled package of cigarettes. Id. at 223, 94 S.Ct. 467. Seizing it, he inspected it and found heroin. Id. The Court concluded that "[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as 'fruits, instrumentalities, or contraband' probative of criminal conduct." Id. at 236, 94 S.Ct. 467 ; see also Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Robinson thereby opened the door for the search of containers found incident to arrest.

The Supreme Court revisited this doctrine a few years later in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). In Chadwick, federal narcotics agents received intelligence that a particular footlocker contained marijuana. Id. at 3-4, 97 S.Ct. 2476. After tracking down the footlocker, a trained dog alerted the agents that the footlocker contained marijuana. Id. at 4, 97 S.Ct. 2476. The agents arrested the three individuals in possession of the footlocker and seized the footlocker. Id. An hour and a half after the arrests, the agents opened the footlocker without a warrant. Id. at 5, 97 S.Ct. 2476. After holding that the Fourth Amendment applied to the footlocker, the Court addressed whether the warrantless search was permissible. Id. at 11-16, 97 S.Ct. 2476. Reaching the search incident to arrest exception, the Court noted that "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest,' or no exigency exists." Id. at 15, 97 S.Ct. 2476 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) ). The Supreme Court further stated:

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

Id. Based on the federal agent's control of the footlocker, the Court held that the warrantless search violated the Fourth Amendment. Id. at 15-16, 97 S.Ct. 2476.

We need not, however, analyze the facts of this case based on Chadwick, as the Supreme Court's decision in Gant applies to the instant case. Although Gant focused on the issue of searching automobiles, it held that once an arrestee has been secured, both justifications for the search incident to arrest exception-officer safety and preservation of evidence-are absent, as "there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search." Gant, 556 U.S. at 339, 343, 129 S.Ct. 1710 (rejecting the Court's previous precedent in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which interpreted Chimel to authorize "a vehicle search incident to every recent occupant's arrest," and holding that "the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within distance of the passenger compartment at the time of the search."); accord Smallwood v. State, 113 So.3d 724, 735 (Fla. 2013). Indeed, the Florida Supreme Court interpreted Gant to exactly do that:

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply.

Smallwood, 113 So.3d at 735 ; see also Ancrum v. State, 146 So.3d 1217 (Fla. 2d DCA 2014) (invalidating a search of a jacket from which the defendant had been separated by applying Gant and Smallwood in holding that the search of an item from which a defendant has been physically separated cannot be upheld as a search incident to the defendant's arrest); State v. K.S., 28 So.3d 985 (Fla. 2d DCA 2010) (invalidating a search of a glovebox as incident to arrest where defendant had been secured and where arrest had been for fleeing and eluding).

The State argues that Brown v. State, 24 So.3d 671 (Fla. 5th DCA 2009), which was decided after Gant, applies to the instant case. We find Brown distinguishable from the instant case. In Brown, the Fifth District Court of Appeal held that the search incident to arrest is valid "when the offense of arrest of an occupant of a vehicle is ... for a crime that might yield physical evidence," and the "police may search the passenger compartment of the vehicle, including containers, to gather evidence, irrespective of whether the arrestee has access to the vehicle at the time of the search." Id. at 681. The court in Brown, however, explicitly distinguished the crime of theft, which the Brown defendant committed, from an arrest for traffic violations, which Harris committed in the instant case. Specifically, the Fifth District concluded that " '[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.' " Id. at 677 (quoting Gant, 556 U.S. at 343, 129 S.Ct. 1710 ).

Likewise, the only post- Gant, non-automobile Florida case that differs in result is easily distinguishable. In State v. Bultman, 164 So.3d 144 (Fla. 2d DCA 2015), the police went to Bultman's house to search for a suspect in an unrelated case. Id. at 145. Although Bultman consented to the search, the police grew increasingly suspicious of her due to the smell of marijuana and the presence of methamphetamine on the premises. Id. The officers asked Bultman for identification, which she retrieved from her purse. Id.

However, Bultman then attempted to hide her purse from the officers, and when they asked to search the purse, she refused. The officers repeatedly asked Bultman to place the purse on the hood of their police car for officer safety and twice had to remove it from her person. The officers arrested Bultman for resisting their commands to leave the purse on the hood of the car and conducted a search of her purse incident to arrest, wherein they found drugs and paraphernalia.

Id. Although upon arresting Bultman the officers had arguably reduced the purse to their control, it was the officers' concern about a weapon and Bultman's refusal to separate herself from the purse that led to the arrest in the first place. In contrast to an arrest on an unrelated event and a search of the purse, Bultman's arrest was directly caused by her actions towards her purse.

Applying Smallwood, Gant, and Chadwick to the instant case, it is clear that the police officers had reduced Harris's backpack to their exclusive control and that Harris had no possibility of accessing the backpack. Having so secured the backpack, the police officers were not entitled to search the backpack without a warrant as a search incident to arrest.

3. Automobile Search

In addition to clarifying the application of Chimel in the automobile context, Gant also explained that an exception unique to the automobile context and independent of Chimel existed. Gant, 556 U.S. at 343-44, 129 S.Ct. 1710. Specifically, the Court held that, even when Chimel would not authorize a search incident to arrest of a vehicle, a search of the vehicle incident to the arrest will be upheld when "it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " Id. at 343, 129 S.Ct. 1710 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) ); accord Davis v. United States, 564 U.S. 229, 234-35, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

Assuming a dirt bike qualifies as a vehicle for purposes of this exception, the facts are clear that Harris's backpack was not a part of the dirt bike nor stored on or in it. Instead, the backpack was worn by Harris, and after Harris and the dirt bike were separated, Officer Blanco separated Harris from his backpack. Accordingly, Harris's backpack could not be searched as a part of the vehicle of the arrestee exception established in Gant.

B. Consent to Search

Lastly, the State argues that this Court may affirm the trial court's denial of the motion to suppress based on the assertion that Harris consented to the search of the backpack. While it is true that a warrant is not required to conduct a search if the individual validly consents to the search, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the State has the burden of proving by a preponderance of the evidence that the consent was freely and voluntarily given, and the issue of voluntary consent "is a question of fact based upon the totality of the circumstances." Wilson v. State, 952 So.2d 564, 569 (Fla. 5th DCA 2007).

In the instant case, the trial court made no finding that Harris consented to the search, as it had already concluded that the search was a valid search incident to arrest. The State, therefore, asks this Court to affirm based on the tipsy coachman doctrine. This doctrine, however, is inapplicable "where a lower court has not made factual findings on an issue." See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009). Accordingly, we cannot affirm the denial of the motion to suppress based on a factual question not reached below. See Powell v. State, 120 So.3d 577, 590-91 (Fla. 1st DCA 2013), modified on reh'g. On remand, the trial court may consider the question upon proper motion by the parties. As this Court only addressed the search incident to arrest issue, either party may raise below other exceptions to the Fourth Amendment's warrant requirement.

IV. CONCLUSION

Based on the foregoing, we find that the search of Harris's backpack was not a valid search incident to arrest and was not a valid search under Gant's automobile exception. Additionally, because the trial court made no factual findings regarding the issue of consent, it would be improper for us to consider this argument on appeal. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

      On cross-examination, Officer Blanco acknowledged that Harris "directed [him] to the front zip pocket of the back pack."

      Specifically, Officer Blanco testified:
      Q. Okay.
      And you opened the backpack the front pocket where he told you to go?
      A. Correct.
      Q. And inside that front zip pocket you saw paperwork concerning the dirt bike?
      A. To a dirt bike, correct.
      Q. To a dirt bike?
      A. Correct.

      Specifically, Officer Blanco testified:
      Q. And at what point did you go back to the backpack?
      A. We asked him if he had any proof of ownership to the dirt bike. He stated that he had paperwork to it in his backpack and also I went through his backpack to open it up. He stopped me and directed me as I was going to open the main compartment. He stopped me, directed me to the front smaller compartment which I opened up.
      * * * *
      Q. So once you discovered that there was paperwork for the dirt bike that's when you opened the main pouch of the backpack?
      A. That's when I opened the small zipper and I smelled marijuana coming out of it then I opened the main compartment.
      * * * *
      Q. He specifically told you do not open the larger container, right?
      A. Correct.
      Q. But regardless of what he said according to you his consent or non-consent at that point would have been irrelevant, right?
      A. Correct.
      Q. No matter what, you would have searched that backpack at that point?
      A. Correct. I would have searched it for inventory.
      Q. Inventory search no matter what you were going to search that backpack?
      A. Inventory to arrest.

      United States v. Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983) ("To determine whether a warrantless search incident to an arrest exceeded constitutional bounds, a court must ask: was the area in question, at the time it was searched, conceivably accessible to the arrestee-assuming that he was neither 'an acrobat [nor] a Houdini'?" (footnote omitted) (quoting United States v. Mapp, 476 F.2d 67, 80 (2d Cir.1973) )).


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Ryan C. MCKENZIE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2249
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018.
    Ryan C. McKenzie, in proper person.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for respondent.
    Before LAGOA, EMAS, and SCALES, JJ.
   LAGOA, J.

Petitioner, Ryan C. McKenzie ("McKenzie"), seeks a belated appeal of an order denying his second motion for post-conviction relief filed pursuant to Florida Rule of Civil Procedure 3.850. We grant the petition for a belated appeal.

On August 16, 2017, the trial court rendered its order denying McKenzie's motion for post-conviction relief, and the Miami-Dade Clerk of Court certified that a copy of the order was furnished by mail to McKenzie on August 18, 2017. In his sworn petition, McKenzie asserts that he is entitled to a belated appeal because he did not receive a copy of the order denying his motion until after the time for taking an appeal had expired. In addition to his sworn statement, McKenzie filed his prison mailroom log request regarding legal mail received during the relevant time period. McKenzie further filed a copy of the prison's mail log record received from a prison official where he is serving his sentence.

We directed the State to show cause why McKenzie should not be granted a belated appeal. In its response, the State contends that because the mail log provided by McKenzie is incomplete, it is possible that McKenzie received other legal mail, including the copy of the order, on other days between August 18, 2017, and September 25, 2017. However, a review of the prison mail log indicates that on September 25, 2017, McKenzie received legal mail from the Miami-Dade Clerk of Court, supporting McKenzie's allegation.

Accordingly, we find that McKenzie has established the right to obtain a belated appeal from the August 16, 2017, order denying his motion for post-conviction relief. See Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000) ; Funchess v. Moore, 766 So.2d 348, 348-49 (Fla. 1st DCA 2000).

Petition granted.


author: LaROSE, Chief Judge.

text:
    Javoney ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3031
    District Court of Appeal of Florida, Second District.
    Opinion filed January 19, 2018.
    Howard L. Dimmig, II, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Javoney Roberts appeals the trial court's amended judgment and sentence for tampering with a witness. We affirm without discussion.

However, we remand for the trial court to correct the written order vacating Mr. Roberts' original judgment and sentence to reflect that only the judgment and sentence for tampering with a witness (count three) was vacated.

Affirmed and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    Walter CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-790
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Floyd v. State, 569 So.2d 1225 (Fla. 1990) ; Everett v. State, 208 So.3d 833 (Fla. 3d DCA 2017) ; L.L. v. State, 189 So.3d 252 (Fla. 3d DCA 2016).


author: Per Curiam. Winsor, J., concurring in part and dissenting in part.

text:
    BANK OF AMERICA, N.A., Appellant, v. MIRABELLA OWNERS' ASSOCIATION, INC., a Florida not-for-profit corporation, and Horizon Specialty Consulting LLC, Appellees.
    HSBC Bank USA, National Association, as trustee for the holders of the Deutsche Alt-A-Securities Mortgage Loan Trust, Mortgage Pass-Through Certificates Series 2007-AR3, Appellant, v. Horizon Specialty Consulting LLC, Appellee.
    No. 1D16-1079 No. 1D16-1093
    District Court of Appeal of Florida, First District.
    January 29, 2018 Rehearing Denied March 22, 2018
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Joseph S. Troendle of Akerman LLP, Jacksonville, for Appellants.
    Ronnie D. Dykes of The Law Firm of Ronnie D. Dykes, P.A., Boca Raton, for Appellee Horizon Speciality Consulting LLC.
    No appearance for Appellee Mirabella Owners' Association, Inc.
   Per Curiam.

These appeals, which we consolidate for purposes of this opinion, arise from separate foreclosure proceedings involving the same condominium unit. The circumstances giving rise to these cases are convoluted and unique, so nothing will be served by a lengthy opinion. Accordingly, we will limit our discussion to a brief overview of the most salient facts and a summary disposition of the issues raised by the appellants.

In August 2012, HSBC Bank filed a complaint in the circuit court to foreclose its $770,000 mortgage on a condominium unit and contemporaneously recorded a notice of lis pendens in the public record. In January 2014, while the mortgage foreclosure case was still pending, the condominium association filed a complaint in the county court to foreclose a December 2013 lien on the unit for unpaid assessments. A default judgment was entered by the county court, and Horizon Specialty Consulting LLC purchased the unit for $12,100 at the subsequent foreclosure sale.

Thereafter, Horizon filed a motion to intervene in the mortgage foreclosure case and Bank of America filed a motion to set aside the judgment and sale in the lien foreclosure case. The circuit court granted Horizon's motion to intervene and, thereafter, the lien foreclosure case was transferred to the circuit court and consolidated with the mortgage foreclosure case. Horizon opposed Bank of America's motion to set aside the judgment and sale in the lien foreclosure case and it also filed a motion to dismiss the mortgage foreclosure case and a motion to dissolve the lis pendens.

In March 2016, the circuit court entered an order that (1) denied Bank of America's motion to set aside the judgment and sale in the lien foreclosure case, (2) granted Horizon's motion to dismiss the foreclosure case, and (3) dissolved the lis pendens. The court concluded in the order that the mortgage foreclosure complaint failed to state a claim-and, thus, the corresponding lis pendens was "fatally defective" and did not bar the association's lien foreclosure action-because the complaint named Gilchrist, rather than Bank of America, as the owner of the condominium unit.

Bank of America and HSBC Bank separately appealed the circuit court's order to this court.

In Bank of America's appeal (case number 1D16-1079), we agree with Horizon that the circuit court did not abuse its discretion in denying Bank of America's motion to set aside the judgment and sale in the lien foreclosure case. See Jallali v. Knightsbridge Village Homeowners Ass'n , 211 So.3d 216, 217 (Fla. 4th DCA 2017) (holding that "the filing of a notice of lis pendens by a first mortgagee does not bar the foreclosure of an association's subsequent lien for unpaid assessments against the owner, although that action is inferior to the foreclosure of the first mortgage, where the association's subsequent lien was imposed under the association's declaration of covenants recorded before the first mortgagee recorded its notice of lis pendens"), review denied , 2017 WL 2559143 (Fla. Jun. 13, 2017) ; § 718.116(5)(a), Fla. Stat. (stating that a condominium association's lien for unpaid assessments "shall relate back to the recording of the original declaration of condominium"). Accordingly, we affirm the portion of the order challenged by Bank of America.

In HSBC Bank's appeal (case number 1D16-1093), we reject Horizon's argument that the lis pendens was legally deficient and we agree with HSBC Bank that the circuit court erred in granting Horizon's motion to intervene in the foreclosure case because "[i]t is well established that a purchaser of property that is the subject of a pending foreclosure action is not entitled to intervene in the foreclosure action where a notice of lis pendens has been recorded." Tikhomirov v. Bank of New York Mellon , 223 So.3d 1112 (Fla. 3d DCA 2017) (citing Andresix Corp. v. People's Downtown Nat'l Bank , 419 So.2d 1107 (Fla. 3d DCA 1982) ); see also Intermediary Fin. Corp. v. McKay , 93 Fla. 101, 111 So. 531 (1927) ("This court is committed to the doctrine that a purchaser pendente lite is not entitled to intervene"); Peninsular Naval Stores Co. v. Cox , 57 Fla. 505, 49 So. 191 (1909) ; Whitburn, LLC v. Wells Fargo Bank, N.A ., 190 So.3d 1087 (Fla. 2d DCA 2015) ; De Sousa v. JP Morgan Chase, N.A. , 170 So.3d 928 (Fla. 4th DCA 2015) ; Timucuan Props., Inc. v. Bank of New York Mellon , 135 So.3d 524 (Fla. 5th DCA 2014). Additionally, because Horizon was not a proper party to the mortgage foreclosure case, the trial court erred in granting its motions to dismiss the case and to dissolve the lis pendens. Accordingly, we reverse the portions of the order challenged by HSBC Bank and remand for further proceedings in the mortgage foreclosure case.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

Lewis and Wetherell, JJ., concur; Winsor, J., concurs in part and dissents in part.

Winsor, J., concurring in part and dissenting in part.

The trial court should have granted Bank of America's motion to vacate. The notice of lis pendens, filed in 2012, barred "the enforcement against the property ... of all interests and liens ... unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice." § 48.23(1)(d), Fla. Stat. (2012) ; accord Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd. , 508 So.2d 431, 434 (Fla. 1st DCA 1987) ("The principal purpose of filing a notice of lis pendens, as manifested in section 48.23, is to bar prior unrecorded interests in the property unless the claimants intervene within twenty days after the notice of lis pendens has been filed of record."). Because the condominium association filed its claim of lien after HSBC filed its notice of lis pendens, the association's lien was an "unrecorded interest" at the relevant time. Therefore, section 48.23 barred the association's separate foreclosure action, and the association's only remedy was to pursue its claim in the existing suit. See U.S. Bank Nat'l Ass'n v. Quadomain Condo. Ass'n , 103 So.3d 977, 979-80 (Fla. 4th DCA 2012).

The fact that the association's declaration authorizing the lien came before the lis pendens does not change this. Although section 718.116(5)(a), Florida Statutes, provides that an association's later-filed claim of lien "is effective from and shall relate back to the recording of the original declaration of condominium," the same statute establishes an exception applicable here: "[A]s to first mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the condominium parcel is located." § 718.116(5)(a). HSBC held the first mortgage of record, so the lien at issue was effective as to HSBC only after the association recorded its claim of lien, and that was long after HSBC filed its notice. The trial court therefore should have vacated the judgment of foreclosure. And we should reverse on that point and certify conflict with Jallali v. Knightsbridge Village Homeowners Ass'n, 211 So.3d 216 (Fla. 4th DCA 2017).

As to whether Horizon was entitled to intervene in HSBC's foreclosure action, the majority correctly concludes (albeit for reasons different from mine) that it was not. Had the trial court vacated the judgment that led to Horizon's asserted interest in the property, Horizon would have been left with no basis to intervene in HSBC's case.

Finally, I agree with the majority that the trial court erred in dismissing the case and dissolving the lis pendens. I therefore agree that we should reverse and remand for additional proceedings.

      Bank of America was the loan servicer for HSBC Bank and it was alleged in the county court case to be the owner of the condominium unit by virtue of a special warranty deed executed by the original mortgagor, Joseph Gilchrist, in July 2011. The deed, which was purportedly executed pursuant to Gilchrist's bankruptcy plan, stated that it "is given in lieu of foreclosure but not in satisfaction of [HSBC Bank's] mortgage" and that it was the intent of the parties to the deed that "title to the property should not be merged with the lien of the aforesaid mortgage."

      Section 48.23(1)(d) formerly allowed only twenty days for intervention. The Legislature amended the statute in 2009 to provide for thirty days. See Ch. 2009-39, Laws of Fla.


author: Per Curiam. Bilbrey, J., concurring.

text:
    R.J. REYNOLDS TOBACCO COMPANY and Liggett Group, LLC, Appellants, v. Erskin Donal WARD, as personal representative of the estate of Mattie Mae Ward, Appellee.
    No. 1D15-5765
    District Court of Appeal of Florida, First District.
    January 29, 2018 Rehearing Denied February 23, 2018
    Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola; Karen H. Curtis of Clarke Silverglate, P.A., Miami; and Kelly Anne Luther of Kasowitz, Benson, Torres & Friedman, LLP, Miami, for Appellants.
    James W. Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, Tallahassee; David J. Sales of David J. Sales, P.A., Jupiter; and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellee.
   Per Curiam.

Appellants argue that the trial court abused its discretion in awarding Appellee attorney's fees and costs of $981,116.23 pursuant to rule 1.380(c), Florida Rules of Civil Procedure. We agree and reverse.

After a trial on the merits of the case, Appellee sought attorney's fees and costs related to sixteen requests for admissions that were timely denied by Appellants. Rule 1.380(c) provides,

c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys' fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

The rule sets forth exceptions to issuance of an order, and precludes an award of reasonable expenses when there was "good reason for the failure to admit." Parties have "good reason" to deny requests for admission when they have a good-faith basis for doing so and when admitting them would give away their defense altogether. Indeed, under the rule, "expenses incurred by a successful litigant as a result of the opposing party's failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case." Arena Parking, Inc. v. Lon Worth Crow Ins. Agency , 768 So.2d 1107, 1113 (Fla. 3d DCA 2000). If otherwise, then "where a party denies a request to admit a fact which is the central issue of fact in the case, prevailing party attorney's fees would become the rule, rather than the exception." Shaw v. State ex rel. Butterworth, 616 So.2d 1094, 1096 (Fla. 4th DCA 1993) (affirming denial of attorney's fees after a trial in which the defendants prevailed after the plaintiff denied a request for admission on the central issue in the case); Hahamovitch v. Hahamovitch , 133 So.3d 1020, 1024 (Fla. 4th DCA 2014) (holding attorney's fees cannot be awarded for a parties failure to admit a "hotly contested, central issue of fact in the case").

As its text makes clear, rule 1.380(c) serves as a vehicle to impose sanctions for unjustified denials, not as a substantive fee-shifting provision. As we conclude that the requests for admissions pertained to contested matters that were central issues in the case-meaning Appellants had "good reason for failure to admit,"-it is unnecessary to address Appellants' remaining challenges pertaining to joint and several liability assignment, attorney hours and reasonable hourly rates, among others.

We, therefore, REVERSE the order on appeal.

Winsor and M.K. Thomas, JJ., concur; Bilbrey, J., concurs with opinion.

Bilbrey, J., concurring.

I concur in the majority opinion. I agree with the logic of Arena Parking, Inc. v. Lon Worth Crow Insurance Agency , 768 So.2d 1107 (Fla. 3d DCA 2000), and Shaw v. State ex rel. Butterworth , 616 So.2d 1094 (Fla. 4th DCA 1993). Rule 1.380, Florida Rules of Civil Procedure, titled "Failure to Make Discovery; Sanctions ," clearly intends to provide for expenses as a sanction for discovery violations and, as the majority notes, is not intended to provide for fee shifting on "a hotly-contested, central issue." Arena Parking, 768 So.2d at 1113 ; see also Stokes v. Clark , 390 So.2d 489 (Fla. 1st DCA 1980).

I write separately to point out that rule 1.380(c)(2) precludes an award of expenses for failing to make a requested admission if "the admission sought was of no substantial importance." Therefore, for an improperly denied request for admission to be sanctionable, it must fall into a Goldilocks zone of being germane to an issue being litigated, but not so important as to be a central issue. In my view, the caselaw and rule do not give sufficient boundaries of what is sanctionable.

Perhaps this ambiguity is purposeful, and I trust that the trial courts will exercise their discretion appropriately in most cases to determine whether sanctions should issue. See Stokes , 390 So.2d at 491 (applying an abuse of discretion standard to a motion for attorney's fees under rule 1.380(c) ). However, judges and practitioners may benefit from having the Florida Bar's Civil Procedure Rules Committee propose more defined boundaries as to where an award is appropriate. See Fla. R. Jud. Admin. 2.140.


text:
    Kenny MITCHELL, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2908
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Kenny Mitchell, III, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Kenny Mitchell, III, appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant's motion made four claims of ineffective assistance of counsel below. We find that the record does not conclusively refute Appellant's first claim, but otherwise affirm.

In his first claim, Appellant alleged that his counsel was ineffective for failing to investigate four alibi witnesses, his time card, and video surveillance-all of which he claims would have established that he was at work at the time the crime was committed. The trial court summarily denied this claim finding that Appellant's counsel filed a disclosure of three of the four alibi witnesses before trial and filed a notice of intent to introduce employment records. According to the trial court, this demonstrated that Appellant's counsel did in fact investigate the alibi, and therefore the court concluded that the record conclusively refuted Appellant's claims.

We review the summary denial of a rule 3.850 motion de novo. Lebron v. State , 100 So.3d 132, 133 (Fla. 5th DCA 2012). The trial court must conduct an evidentiary hearing unless the allegations are facially insufficient, are conclusively refuted by the record, or are legally insufficient. Id.

While counsel's apparent intent to call three of the four alibi witnesses and use at least some employment records at trial may be relevant, we cannot conclude that this alone conclusively refutes Appellant's entire claim. We therefore reverse the summary denial as to this claim, and remand for the trial court to attach record evidence conclusively refuting Appellant's claim, or to hold an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, TORPY AND EISNAUGLE, JJ., concur.


author: Per Curiam.

text:
    Robert Lee DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3277
    District Court of Appeal of Florida, Fourth District.
    February 14, 2018
    Ashley N. Minton of Minton Law, P.A., Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
    ON REMAND FROM THE SUPREME COURT
   Per Curiam.

Pursuant to the mandate from the Florida Supreme Court in Davis v. State , 2018 WL 480516 (Fla. Jan. 19, 2018), quashing this court's opinion and remanding for resentencing in accordance with Johnson v. State , 215 So.3d 1237 (Fla. 2017), this case is remanded for resentencing.

Warner, May and Forst, JJ., concur.


author: Kuntz, J.

text:
    Marco CANIDATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4162
    District Court of Appeal of Florida, Fourth District.
    February 14, 2018
    Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Greg Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction of fleeing a law enforcement officer at a high speed or wanton disregard for the safety of persons or property under section 316.1935(3)(a), Florida Statutes (2016). The court sentenced him to sixty months state imprisonment. Because the State failed to establish a wanton disregard for the safety of persons or property, we reverse the conviction and sentence and remand for the entry of a judgment of conviction and sentence on the lesser included offense of fleeing to elude a law enforcement officer with sirens and lights activated under section 316.1935(2), Florida Statutes (2016).

Background

At trial, the State called a detective with the Martin County Sheriff's Office. On the day in question, the Detective was on Federal Highway preparing to turn onto Cove Road in a marked four-wheel sedan equipped with full lights and siren. He noticed a truck matching the description of a vehicle he was looking for and also noticed an equipment infraction on the truck. The truck cut across from a straight lane to a turn lane and continued northbound on Federal Highway.

The Detective initially activated his light without sirens, at which point the Defendant pulled into the parking lot of a nearby bank. However, once the two vehicles pulled into the bank's winding parking lot, the Defendant accelerated. The Detective then activated his sirens as the Defendant exited the parking lot onto Cove Road, and allegedly began weaving through traffic. A Deputy in the area testified that he saw the truck slowly pull into the bank parking lot and accelerate. The Deputy testified that the truck "continued at a high rate of speed through the parking lot," before pulling onto Cove Road where "there was absolutely traffic in the area." Notwithstanding the testimony regarding the high rate of speed, the Detective testified that neither car exceeded 40 miles per hour in an area where the posted speed limit was 35 miles per hour.

Apparently unbeknownst to the Detective, during this time the Defendant called 911, expressing concern that he was being followed by a police officer for unknown reasons, and that he wanted to pull over in a safe and well-lit area.

The Detective terminated the pursuit by engaging in a pursuit intervention technique. He was trained to place the front corner of his car's fender or quarter panel against the rear corner of the other vehicle, "effectively nudging it to where it loses control and spins around and stops." The Detective carried out this technique and arrested the Defendant.

Ultimately, the Defendant was tried and convicted of the crime of "fleeing to elude a law enforcement officer with lights and siren activated with willful and wanton driving." During the trial, the court denied the Defendant's motion for judgment of acquittal. It is that denial the Defendant now appeals.

Analysis

Our review of the court's denial of the Defendant's motion for judgment of acquittal is de novo , and we consider all reasonable inferences from the evidence in the light most favorable to the State. Damoah v. State , 189 So.3d 316, 321 (Fla. 4th DCA 2016) (citing Parker v. State , 795 So.2d 1096, 1098 (Fla. 4th DCA 2001) ).

The statute provides that any person that willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement vehicle, with jurisdictional insignia on the side and with siren and lights activated and "[d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." § 316.1935(3)(a), Fla. Stat. (2016).

Here, there is no dispute that the Defendant was not operating at a high speed. Therefore, the State was required to establish the Defendant drove "in any manner which demonstrates a wanton disregard for the safety of persons or property." Id. We have explained that "[w]anton disregard is a 'conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.' " Cohen v. State , 230 So.3d 18, 20 (Fla. 4th DCA 2017) (quoting Damoah , 189 So.3d at 320 ). The State failed to present evidence to show such a wanton disregard.

We examined a similar situation in Steil v. State , 974 So.2d 589 (Fla. 4th DCA 2008). In Steil , the defendant was convicted of aggravated fleeing or eluding an officer. Id. at 589. On appeal, he argued the State offered no proof that he drove at a high speed or in a manner demonstrating wanton disregard for the safety of persons or property. Id. The officer testified that he was attempting to stop the defendant to determine if he had been involved in a reported disturbance. Id. at 590. With lights and sirens on at times and off at other times, the officer observed the defendant run multiple stop signs, and travel between fifteen and twenty miles per hour over the speed limit. Id. The officer also testified that he did not observe any other vehicles affected by the defendant's actions. Id. at 590. On those facts, we found "that there was insufficient evidence of 'high speed' or 'wanton disregard,' while the lights and siren were on, to support the conviction of aggravated fleeing." Id.

In Steil , we discussed Miller v. State , 636 So.2d 144 (Fla. 1st DCA 1994), a case where the defendant was travelling at fifty to fifty-five miles per hour, in a posted thirty-five mile per hour zone. Id. at 151. The officer in Miller testified that traffic was moderate, and there were one or two runners and bicyclists nearby. Id. The court determined that the state failed to present evidence to support a finding of wanton disregard for the safety of persons or property. Id.

We reach the same conclusion here. Similar to Steil , the State failed to introduce evidence demonstrating that any other person or property was impacted by the Defendant's actions, actions taken while travelling at or near the posted speed limit. The State's best evidence in support of the charge was that the Defendant weaved at times while on Cove Road. The mere fact that the Defendant "weaved," without more, is insufficient to show a conscious and intentional indifference to consequences. Absent evidence that other persons or property were impacted by the Defendant's actions, the conviction and sentence must be reversed.

Conclusion

We reverse the Defendant's conviction for high speed or wanton fleeing, a second-degree felony, and vacate the court's sixty-month sentence. On remand, the court shall issue a judgment of conviction and sentence for the lesser-included offense of fleeing to elude a law enforcement officer with sirens and lights activated pursuant to section 316.1935(2), Florida Statutes (2016), a third-degree felony.

Reversed in part, vacated in part, and remanded.

Gerber, C.J., and Gross, J., concur.


author: Per Curiam. Wetherell, J., concurring.

text:
    Scott BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2775
    District Court of Appeal of Florida, First District.
    February 19, 2018 Rehearing Denied March 23, 2018
    Mark V. Murray, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Lewis and Winsor, JJ., concur; Wetherell, J., concurs with opinion.

Wetherell, J., concurring.

I concur in the decision to affirm Appellant's judgment and sentence for violating section 847.0138(2), Florida Statutes (2014), because the trial court did not abuse its broad discretion in denying the special jury instruction Appellant requested and the other issue raised on appeal is meritless. That said, for sake of consistency and completeness, the Supreme Court Committee on Standard Jury Instructions in Criminal Cases might want to consider amending the standard jury instruction for section 847.0138(2) -see Std. Jury Instr. (Crim.) 11.21-to define the terms "prurient interest" and "morbid interest" as is done in the instructions for other chapter 847 crimes in which those terms are used. See Std. Jury Instr. (Crim.) 24.1-24.6. Those terms are key components of the statutory definition of "harmful to minors"-which is the crux of section 847.0138(2) -and, even if it is not absolutely necessary to define those terms in the jury instructions, see Russ v. State , 832 So.2d 901, 911 (Fla. 1st DCA 2002) ("A trial court is under no obligation to define terms in common use and generally understood by the average person."), there is certainly no harm in doing so.


text:
    Andrew BARLOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5042
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Jason Cromey of Jason Cromey Law, P.A., Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

After Andrew Barlow pleaded no contest to ten counts of possessing child pornography, the court sentenced him to fifteen years' imprisonment and thirty years' sex-offender probation. On appeal, Barlow contends the trial court committed fundamental error in imposing this sentence.

There is no dispute as to whether the sentence was within statutory limits. Indeed, convicted of ten second-degree felonies, each with a fifteen-year maximum, see § 775.082(3)(d), Fla. Stat. (2015), Barlow faced a maximum total sentence of one hundred fifty years' imprisonment. But although a sentence within statutory limits "is generally unassailable on appeal," there is an exception when a trial court bases its sentence on impermissible factors, like unsubstantiated allegations of other crimes. Martinez v. State , 123 So.3d 701, 703 (Fla. 1st DCA 2013) ; accord Yisrael v. State , 65 So.3d 1177, 1177 (Fla. 1st DCA 2011) ("Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence."), approved sub nom. Norvil v. State , 191 So.3d 406 (Fla. 2016).

Barlow contends this exception applies here. He argues that the trial court relied on unrelated, uncharged, and unsubstantiated claims in determining his sentence. At the sentencing hearing, a law-enforcement agent testified that Barlow indicated during an electronic chat that he would like to have sex with a fourteen-year-old boy. Barlow was not charged with that conduct; his charges related only to possessing child pornography-not directly interacting with children. Nevertheless, there is no indication that the trial court based its sentence on this uncharged conduct, so the exception provides no basis to reverse. See Harvard v. State , 414 So.2d 1032, 1034 (Fla. 1982) ("[T]rial judges are routinely made aware of information which may not be properly considered in determining a cause. Our judicial system is dependent upon the ability of trial judges to disregard improper information and to adhere to the requirements of the law in deciding a case or in imposing a sentence."); Williams v. State , 193 So.3d 1017, 1019 (Fla. 1st DCA 2016) (reversing only after noting "it is clear from the trial judge's comments at the sentencing hearing that he accepted as true, and based his sentencing decision on, the prosecutor's assertions [of unsubstantiated conduct]"); Yisrael , 65 So.3d at 1178 (noting that sentencing judge's comments "strongly indicate that the dismissed and pending charges were a factor in the court's determination to impose the maximum allowable sentence").

Moreover, even if the trial court did consider the uncharged conduct, it would not have been error. First, evidence that Barlow expressed interest in sex with a child was not unsubstantiated. At the sentencing hearing, there was a dispute about the conversation at issue, and rather than insist the State produce the actual transcript, Barlow's counsel accepted as true the agent's description of the conversation. Second, the evidence directly related to Barlow's request for a downward departure-a request he based in part on a report indicating he was at low risk to reoffend. That report, in turn, reported that Barlow denied having ever had sexual interest in children. The trial court found no basis for a downward departure, and to the extent it considered evidence directly refuting the report (or Barlow's denial within it), it committed no error.

We also reject Barlow's argument that the trial court committed fundamental error by considering child pornography's general societal harm, rather than the specific harm from Barlow's crime. Barlow relies on Goldstein v. State , in which the appellate court found fundamental error in the trial court's "relying on its generalized fears of greater future offenses for any similarly charged [child pornography] defendant and applying a general policy in sentencing Goldstein contrary to Florida law." 154 So.3d 469, 476 (Fla. 2d DCA 2015). But in Barlow's sentencing, although the court noted the substantial harm child pornography inflicts, it did not announce any policy applicable to all child-pornography cases, and it did not articulate any other impermissible basis for its sentence. Instead, the trial court considered the individual facts of Barlow's case. It considered Barlow's mental-health evaluation and letters and testimony presented on Barlow's behalf. It considered the fact that Barlow shared child pornography and sought more images. And it considered the disgusting nature of the specific images Barlow possessed-images that showed adults engaging in sexual acts with infants.

AFFIRMED.

Wolf, Rowe, and Winsor, JJ., concur.


text:
    Jose Luis HERNANDEZ, Appellant, v. HIALEAH SOLID WASTE DEPARTMENT and Sedgwick CMS, Appellees.
    No. 1D17-141
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Eduardo E. Neret of Neret, Finlay & Nguyen, LLP, Miami, for Appellees.
   Per Curiam.

Jose Luis Hernandez, a workers' compensation claimant, was prescribed certain spinal-injection treatments. His employer authorized the treatment, but insisted that another physician-not Hernandez's treating physician-perform them. The Judge of Compensation Claims sided with the employer, and Hernandez appeals.

Section 440.13(2)(d) allows the employer "to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation." Here, the employer did not satisfy the statute's requirements. Instead, the employer refused to allow Hernandez's authorized physician to perform authorized treatments, a refusal "amount[ing] to a de facto deauthorization of the doctor." Williams v. Triple J Enters. , 650 So.2d 1114, 1116 (Fla. 1st DCA 1995).

REVERSED and REMANDED for further proceedings.

B.L. Thomas, C.J., and Osterhaus and Winsor, JJ., concur.


text:
    Joseph STUFFT, Appellant, v. Sharon Aull STUFFT, Appellee.
    Case No. 5D17-149
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    Nikie Popovich, of Popovich Law Firm, P.A., Orlando, for Appellant.
    Pamela J. Helton, Dylan J. Hall, Barry V. Newton, Jr. and Mary A. Joyner, of Law Office of Pamela J. Helton, P.A., Clermont, for Appellee.
   PER CURIAM.

Joseph Stufft ("Husband") appeals the final judgment dissolving his long-term marriage to Sharon Aull Stufft ("Wife"). Husband challenges the provision in the judgment that characterizes payments to be made by him to Wife for her one-half interest in an equitably distributed marital asset as also being "support," enforceable by contempt. Husband also contends that the trial court erred in failing to distribute the parties' unpaid federal income tax liability. We agree with Husband on both issues, and therefore, we reverse and remand for further proceedings.

During the course of the marriage, Husband began an airbrushing business that he later sold for the sum of $250,000, to be paid to him in regular installment payments. Husband is also to receive an additional seven percent of all gross sales of the business, as well as seven percent of the sale price of the business if the business is later resold. The trial court found that the business and all sums to be paid to Husband as a result of its sale are marital property, which neither party challenges. In its final judgment, the court ordered that as part of the equitable distribution of the parties' marital assets, Husband and Wife are to "equally split" all proceeds from the sale of this "marital business," with Husband to deliver to Wife her one-half share of the proceeds within ten days of Husband's receipt of any payments from the purchaser of this business. The court further ordered that any failure by Husband to pay Wife her share of the proceeds from the sale of this marital business would result in contempt proceedings because this payment would be "considered support to Wife," despite the court having separately denied Wife's claim for alimony or spousal support.

We conclude that under the circumstances of this case, the trial court erred in also characterizing Wife's equitable distribution share in the additional monies to be received from the sale of the marital business to be a form of spousal support. Moreover, because "[t]he law is clear that an award subject to equitable distribution is not enforceable by contempt," Lynch v. Lockyer , 180 So.3d 1120, 1121 (Fla. 5th DCA 2015) (citing Williams v. Williams , 958 So.2d 992, 994 (Fla. 5th DCA 2007) ), the trial court erred by thereafter determining that any failure by Husband to essentially pay money to Wife for her equitable distribution of this marital asset would be enforced through contempt. If Husband does not pay Wife the monies owed to her for her share of the proceeds from the sale of the marital business, Wife's remedies are those available to creditors against debtors. See Lynch, 180 So.3d at 1121 (quoting Williams , 958 So.2d at 994 ).

As to Husband's second issue, the parties did not file federal income tax returns from 1995 through 2013 and also failed to pay their federal income taxes during this time. The trial court found the parties' federal tax debt to be a marital debt and made a separate finding that Wife's testimony "of ignorance regarding the nonpayment of taxes and the non-filing of [tax] returns" was not credible. However, the court did not distribute this marital debt in its final judgment. Instead, it specifically deferred the apportionment of the income tax liability associated with the parties' unpaid taxes to the Internal Revenue Service.

"The standard of review of a trial court's determination of equitable distribution is abuse of discretion." Coleman v. Bland , 187 So.3d 298, 299 (Fla. 5th DCA 2016) (quoting Bardowell v. Bardowell , 975 So.2d 628, 629 (Fla. 4th DCA 2008) ). We find that the trial court abused its discretion regarding its failure to distribute the federal tax liability. See Guobaitis v. Sherrer , 18 So.3d 28, 32-33 (Fla. 3d DCA 2009) (holding that the trial court abused its discretion in failing to equitably distribute parties' federal tax liability; although the exact amount owed to the Internal Revenue Service was uncertain, there is no doubt that the parties' federal taxes remained unpaid and were due). The distribution of this marital debt is governed by section 61.075(1), Florida Statutes (2014), which provides, in pertinent part, that "the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors" set forth in this subsection.

Accordingly, we reverse that part of the final judgment that characterizes Wife's interest in future payments received from the sale of the marital business as spousal support and remand with directions to the trial court to enter an amended final judgment that distributes the parties' marital federal tax liability and removes any reference to the distribution of this marital asset as spousal support and the enforcement of the distribution of the proceeds from the sale of the marital business by contempt proceedings. See Hertrich v. Hertrich , 643 So.2d 115, 116 (Fla. 5th DCA 1994) (affirming a final judgment of dissolution of marriage but striking from the judgment an erroneous provision threatening to enforce an equitable distribution obligation through the trial court's contempt powers).

REVERSED in part; and REMANDED with directions.

COHEN, C.J., and LAMBERT, J., concur.

EISNAUGLE, J., concurs in part and dissents in part, with opinion.

EISNAUGLE, J., concurring in part, dissenting in part.

I would not reach the contempt issue because it is not ripe. See Nathanson v. Rishyko , 140 So.3d 1054, 1055 (Fla. 4th DCA 2014) (holding that the district court lacked jurisdiction to review a contempt order where no sanction was imposed); see also Diaz v. Citizens Prop. Ins. Corp. , 227 So.3d 735, 736 (Fla. 3d DCA 2017) ("[W]e are without jurisdiction to address the portion of the appeal relating to attorney's fees. This is so because no amount has been fixed by the trial court and the part of the final judgment that finds entitlement thereto is not ripe for our review.");

Mills v. Martinez , 909 So.2d 340, 342 (Fla. 5th DCA 2005) (holding that determination of entitlement to attorney's fees without setting amount was non-final, interlocutory order even though it was included in a final judgment). I otherwise concur.

      The court found that Wife's current monthly income is $2400 and Husband's current monthly income is $2240. Wife has not filed a cross-appeal challenging the court's denial of her request for alimony.

      The amount of the parties' federal income tax liability had not been determined at the time of trial.


text:
    Orlando PEREZ, Appellant, v. Diana Navarro PEREZ, Appellee.
    Case No. 5D16-4096
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    Clifford J. Geismar, of The Law Office of Clifford J Geismar, PA, Winter Park, for Appellant.
    Barry Rigby, of Law Offices of Barry Rigby, PA, Orlando, for Appellee.
   PER CURIAM.

Orlando Perez ("Husband") claims that the trial court erred in its distribution of marital assets and alimony determination set forth in the final judgment dissolving the parties' marriage. We agree and remand for further proceedings.

During their twenty-three-year marriage, the parties jointly owned several pieces of real estate. Prior to their separation, they executed warranty deeds in which they conveyed their interests in four properties to their two adult sons. They retained title to a house in Marco Island, a condominium unit in Naples, Florida, and an apartment in Colombia. During an earlier part of their marriage, Husband worked as an architect, but in more recent years, he became a security guard. Diana Navarro Perez ("Wife") was primarily a stay-at-home mother, although from time to time she earned minimum wage working odd jobs.

Wife filed her petition for dissolution of marriage on June 12, 2012, in which she requested permanent alimony and sought equitable distribution of their marital assets. In her petition, she joined their sons as third-party defendants, claiming that Husband and the sons had engaged in a fraudulent scheme to divest her of her rightful share of those properties. Wife's petition included requests to reform the deeds or to declare a constructive trust so that the properties they had deeded to their sons could be returned to the marital estate for equitable distribution. Husband's motion to dismiss Wife's claims for reformation of the deeds and declaration of a constructive trust was granted, as was his motion to dismiss their sons from the dissolution proceedings.

A trial was held during which Husband, Wife, and one of their sons testified. Husband testified that they deeded the properties in question to their sons in keeping with an alleged Colombian custom of parents providing for their children. Husband claims that he and Wife discussed that concept repeatedly throughout their marriage. Wife acknowledged that she signed the deeds with the intent of conveying the properties to their sons, but she understood that it was to safeguard the properties from later spouses.

The trial court asked the testifying son whether he would return the properties to his parents if they needed money, and the son agreed that he would. For some reason, the trial court misunderstood that testimony, and later relied upon an incorrect recollection that the son had testified that he would give the property back to Husband but not to Wife in case of financial need.

Nearly eleven months post-trial, the court entered its final judgment dissolving the marriage and awarding Wife $1750 as permanent periodic alimony. The distribution of marital assets included the properties or the value of the properties that the couple previously deeded to their sons. The court awarded Husband the house in Marco Island, along with two of the properties deeded to their sons. The court awarded Wife the apartment in Colombia and the condominium in Naples, as well as one vacant lot that the parties deeded to their sons. The final judgment ordered the sale of a piece of property in Tennessee with the proceeds split equally between the parties, despite stating that the "Court is mindful that neither party may force the sale of the Sevier County, Tennessee vacant lot since the parties' adult children in fact own it."

Regarding the alimony award, the court did not explain how it calculated the $1750 amount. "Although the trial court has considerable discretion in determining an award of alimony, that discretion is not unlimited." Motie v. Motie , 132 So.3d 1210, 1213 (Fla. 5th DCA 2014). Likewise, the final judgment does not explain what income the trial court attributed to Husband. A "party's ability to pay alimony should be based on the party's net income; not gross income." Gilliard v. Gilliard , 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) (citing Kingsbury v. Kingsbury , 116 So.3d 473, 474 (Fla. 1st DCA 2013) ). Given the length of the parties' marriage, an award of permanent periodic alimony to Wife may be appropriate. However, we reverse and remand the alimony award with instructions for the trial court to either state its specific findings that demonstrate Wife has a need for $1750 per month and that Husband has the ability to pay that amount or to recalculate the alimony based upon the trial court's written findings of Wife's need and Husband's ability to pay.

We reverse the equitable distribution of marital assets set forth in the final judgment because it is not supported by competent, substantial evidence. The trial court "awarded" each spouse some of the property that they had jointly deeded to their sons. " Section 61.075(6), Florida Statutes (2003), provides a bright line rule for setting the date to be used in determining the marital classification of assets and liabilities. If there is no valid separation agreement, the cut-off date is 'the date of the filing of the petition for dissolution of marriage.' " Rao-Nagineni v. Rao , 895 So.2d 1160, 1161 (Fla. 4th DCA 2005) (quoting Caruso v. Caruso , 814 So.2d 498, 502 (Fla. 4th DCA 2002) ). There was no separation agreement here; thus, the trial court should have looked to what the parties owned when the petition was filed unless it makes written findings as to a factual and legal basis to do otherwise.

"Absent an agreement, a nonmarital asset may not be awarded to the non-owner spouse as equitable distribution." Mitchell v. Mitchell , 841 So.2d 564, 567 (Fla. 2d DCA 2003). Here, the distribution ordered in the final judgment included non-marital assets, i.e., the property jointly deeded to the sons. The trial court awarded more highly valued non-marital assets to Husband than to Wife; thus, Husband received a lower actual distribution than Wife. It is clear that the trial court lacked jurisdiction under the then-current pleadings and record evidence to compel the non-party sons to return any of the properties to either Husband or Wife. See Martinez v. Martinez , 219 So.3d 259, 262 (Fla. 5th DCA 2017). Thus, the trial court's attempted redistribution of the sons' property to the parents cannot be upheld.

Even if the trial court simply considered the value of the property deeded to the sons when arriving at its equitable distribution, it erred because it made no finding of fraud, waste, or dissipation on the part of Husband. See Roth v. Roth , 973 So.2d 580, 585 (Fla. 2d DCA 2008) ("[T]he trial court must make a specific finding that the dissipation resulted from intentional misconduct."). While the parties testified to having different reasons for why they deeded properties to their adult sons, it was undisputed that they both executed the deeds for the purpose of transferring those properties. Furthermore, the trial court's concern that Husband somehow controlled the property deeded to the sons and could force them to give it back to Husband is not supported by competent, substantial evidence; it is based on the trial court's misunderstanding and inaccurate recollection of the son's testimony. Now that there is a transcript of the testimony, the trial court can reconsider that point.

The trial court acknowledged it lacked jurisdiction to force the sale of the Tennessee property because the parties deeded it to their sons; thus, that portion of the final judgment is also reversed.

We affirm the dissolution of marriage. The trial court's award of $1750 per month as permanent periodic alimony is reversed with instructions for the trial court to consider and make specific findings on whether Wife has a demonstrated need for, and whether Husband has the ability to pay, such an award. We reverse and remand the distribution of marital assets and instruct the trial court on remand to make an equal distribution unless it gives specifically stated reasons for an uneven distribution. We further instruct the trial court to limit its consideration to assets owned by the parties at the time the petition was filed unless it makes specific findings, supported by the record and the law, that justify consideration of the value of any non-marital assets, such as the property deeded to the parties' sons. We reverse that portion of the final judgment ordering the sale of the sons' Tennessee property for the reasons stated above. On remand, the trial court can rely on the record evidence or take additional evidence and conduct such hearings as it might deem appropriate as part of its further proceedings that are consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

EVANDER, EDWARDS and EISNAUGLE, JJ., concur.


author: EVANDER, J.

text:
    WILMINGTON TRUST, NATIONAL ASSOCIATION, Not in Its Individual Capacity, but Solely as Trustee FOR MFRA TRUST 2015-2, Appellant, v. Rolland A. MOON, Individually and as Trustee, Aires Trust, a Texas Joint Stock Company, Robert Moon, Individually and as Trustee of the Rolland, Jennifer and Nathan Moon Trust Fund Dated 11-16-11, Appellees.
    Case No. 5D16-3934
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    Nicole Ramirez, of eXL LEGAL, PLLC, St. Petersburg, for Appellant.
    George M. Gingo, Titusville, for Appellees.
   EVANDER, J.

Wilmington Trust, National Association ("Wilmington Trust") appeals the final summary judgment entered in favor of Appellees. Wilmington Trust argues that summary judgment was improper because a genuine issue of material fact existed regarding whether Wilmington Trust had standing to foreclose on the note and mortgage in question. We agree, and accordingly, reverse.

Rolland and Jennifer Moon executed a note and mortgage in favor of Wells Fargo Bank in 2008. On June 15, 2015, Wells Fargo filed a foreclosure action against Appellees, alleging that the Moons had defaulted on the note by failing to make the payment due May 1, 2011, and all subsequent payments. Attached to the verified complaint was a copy of the note endorsed in blank, a copy of the mortgage, and a "certification of possession" declaring under penalty of perjury that as of April 13, 2015, Wells Fargo was in possession of the original note.

Subsequently, Wilmington Trust filed a motion to substitute as plaintiff based on an assignment of mortgage it received from Wells Fargo. The motion was granted on February 22, 2016. Thereafter, Wilmington Trust filed a verified amended complaint alleging, inter alia , that Wilmington Trust "is the holder of the note and is entitled to enforce said mortgage and mortgage note." A copy of the mortgage, assignment of mortgage, and note were attached to the verified amended complaint. Wilmington Trust also attached a certificate of possession that was identical to the one attached by Wells Fargo to the original verified complaint.

Appellees did not file an answer to the amended verified complaint. Instead, Appellees filed a motion for summary judgment, or alternatively, motion to dismiss action, arguing that Wilmington Trust lacked standing. Specifically, Appellees contended that although the amended verified complaint alleged that Wilmington Trust was the holder of the note, the attached certificate of possession indicated that Wells Fargo possessed the note. Appellees further argued that the amended verified complaint did not allege either: (1) that there was an agency relationship between Wilmington Trust and Wells Fargo, or (2) that the note (as opposed to the mortgage) had been assigned by Wells Fargo to Wilmington Trust. As a result, according to Appellees, Wilmington Trust lacked standing because it was not the holder of the note as of the date it filed the amended verified complaint. Appellees did not file any affidavits or other summary judgment evidence in support of their motion.

Notwithstanding the lack of summary judgment evidence, the trial court granted summary judgment in Appellees' favor, finding that the undisputed facts established that Wilmington Trust lacked standing because the certificate of possession demonstrated that Wilmington Trust did not possess the note.

A final order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). A court may grant summary judgment only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Id. The burden rests on the moving party to demonstrate the nonexistence of any dispute as to the material facts; only after the moving party has tendered competent evidence supporting its motion does the burden shift to the other party to come forward with counterevidence that establishes a question of material fact. Hicks v. Hoagland , 953 So.2d 695, 697 (Fla. 5th DCA 2007). Because summary judgment is not a substitute for trial, when a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove its cause of action; rather, the court's function is solely to determine whether the record conclusively shows that the moving party has established that the plaintiff could never prove its case. Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC , 75 So.3d 865, 869 (Fla. 2d DCA 2011) (holding defendant in mortgage foreclosure action was not entitled to summary judgment because original note and mortgage were not "in evidence"; "burden was on [defendant] to prove that [plaintiff] could never prove its case-not that it had not already done so").

In a mortgage foreclosure action, it is well settled that a plaintiff must have standing both at the inception of the foreclosure proceeding as well as at the time of final judgment.

Bowmar v. SunTrust Mortg., Inc. , 188 So.3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen Loan Servicing, LLC , 151 So.3d 52, 53 (Fla. 1st DCA 2014) ). In the case of a substituted plaintiff, the substituted plaintiff may rely on the standing (if any) of the original plaintiff at the time the case was filed. The substituted plaintiff then must prove its own standing when judgment is entered. Sandefur v. RVS Capital, LLC , 183 So.3d 1258, 1260 (Fla. 4th DCA 2016). Significantly, there is no requirement that a substituted plaintiff must prove its standing at the time of the substitution. See Ventures Tr. v. Asset Acquisitions & Holdings Tr. , 202 So.3d 939, 943 (Fla. 2d DCA 2016) ("[Defendant] cites no legal authority that suggests yet a third temporal point for required standing in foreclosure proceedings-a prior, substituted plaintiff's at the time of a court-ordered substitution-in order for a holder to enforce a mortgage. And we are loathe to engraft something so unheralded (and unwarranted) upon what is, now, a well-settled facet of foreclosure law.").

In the instant case, Wells Fargo's standing at the inception of the case was not challenged. Appellees presented no summary judgment evidence that Wilmington Trust would be unable to prove it was the holder of the note at trial. Accordingly, it was error for the trial court to have granted Appellees' motion for summary judgment.

REVERSED and REMANDED.

ORFINGER and LAMBERT, JJ., concur.

      Although unnecessary to the disposition of this appeal, we would also suggest that the certificate of possession attached to the verified amended complaint did not conclusively refute Wilmington Trust's claim that it was the holder of the note at the time it was substituted into the action.


text:
    Catherine EBERHART, Former Wife, Appellant, v. Dennis EBERHART, Former Husband, Appellee.
    No. 1D16-3984
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Jason K. Hutchinson of Hutchinson Law, Jacksonville, for Appellant.
    Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellee.
   Per Curiam.

This case requires us to interpret imprecise language in a consent final judgment. Our review is de novo. See Toussaint v. Toussaint , 107 So.3d 474, 477 (Fla. 1st DCA 2013). Because the trial court's interpretation was wrong, we reverse.

Catherine Eberhart served in the United States Navy for nearly twenty-one years. She had already served about ten years when she married Dennis Eberhart in 1993. She retired in 2004, and she divorced eight years later. Through their consent divorce judgment, the parties agreed that Catherine Eberhart would pay "undifferentiated support," and Dennis Eberhart would waive (temporarily, at least) any entitlement to a share of his wife's Navy pension.

The judgment also had a provision, though, saying if the undifferentiated support ended, the court could award Dennis Eberhart "a one-half share of the marital portion" of Catherine Eberhart's pension. And it parenthetically defined the "marital portion" to mean "the date of marriage to the date of this Final Judgment"-the language central to this appeal.

The parties agree that the undifferentiated support ended, and they seem to agree Dennis Eberhart is entitled to "a one-half share of the marital portion" of the pension. The only dispute is about what to make of the parenthetical definition. In other words, what is the "marital portion" of which Dennis Eberhart deserves "a one-half share"?

The marital portion of any retirement plan is the portion accumulated during the marriage. See Horton v. Horton , 62 So.3d 689, 691 (Fla. 2d DCA 2011). The parenthetical's language is consistent with this general rule. The marital portion includes all retirement benefits Catherine Eberhart accumulated during the marriage-or, said another way, all retirement benefits Catherine Eberhart accumulated from "the date of marriage to the date of [the] Final Judgment." If she stopped accruing benefits when she retired in 2004, then that is when the marital portion was set, even if the marriage lasted years longer.

The parties could have, of course, agreed to other terms. They could have defined "marital portion" to mean something other than what it usually means. But the language at issue here does not show that the Eberharts did that. The language does not indicate they intended the court to determine the "marital portion" by looking to anything other than (i) the retirement benefits accumulated while the parties were married and (ii) the retirement benefits accumulated while the parties were not married.

REVERSED .

Kelsey, Winokur, and Winsor, JJ., concur.