text:
    Heather PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2344
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Heather Phillips appeals the trial court’s final judgment and sentence. Pursuant to a plea agreement, Appellant pled no contest to one count of lewd or lascivious battery. The court sentenced. Appellant to ten years in prison, followed by five years of sex offender probation. On appeal, Appellant argues her counsel was ineffective in failing to object to the supposedly greater-than-agreed-upon sentence and for failing to file a motion to withdraw plea. As set forth below, we affirm the trial court’s judgment and sentence without prejudice to Appellant raising her claims of ineffective assistance of counsel in a 3.850 post-conviction motion.

Background

On October 13, 2015, the State of Florida charged Appellant by information with four counts of lewd or lascivious battery on a fifteen-year-old boy. The State offered Appellant a plea agreement, in which the State would drop three out of the four charges if Appellant pled no contest to one. Appellant accepted. In a portion of the written plea bargain, Appellant agreed to the following statement: “I understand that the recommendation for sentencing to the judge by both my attorney and the State Attorney is as follows: 10 year DOC Cap agreement, $100 cost of prosecution, $217 deposition transcript fees.” At the subsequent plea hearing, the trial court directly asked Appellant, “do you still wish to enter the plea knowing the cap is ten years in prison?” Appellant answered, “Yes.” Shortly after, the court clarified the plea bargain:

Do you understand that the court gives you—because there’s a ten year cap that could include probation, right, because the court could say six years and four years probation or something because the cap is ten years. Do you understand that that probation could be sexual offender probation because of the type of charge it is which has special conditions to it?

Appellant answered, ‘Yes.”

At the subsequent sentencing hearing, the trial court sentenced Appellant to ten years in prison as well as five years of sex offender probation to follow the prison sentence. On appeal, Appellant argues she never agreed to the possibility that she could serve five years of probation after serving a full ten years in prison; instead, she argues that she agreed only to ten total years of punishment divided in some manner between prison and probation. Consequently, she argues her defense counsel was ineffective in failing to object to the sentence at the sentencing hearing, as well as in failing to file a motion to withdraw the plea pursuant to Florida Rule of Criminal Procedure 3.170(Z).

Analysis

We begin with the general proposition that a claim of ineffective assistance of counsel is generally not cognizable on direct appeal because the issue is fact-specific. Michel v. State, 989 So.2d 679, 681 (Fla. 4th DCA 2008). The usual procedural vehicle for such a claim is a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Dennis v. State, 696 So.2d 1280, 1282 (Fla. 4th DCA 1997). However, as this Court and others have noted, “such a claim can be raised where the face of the record demonstrates ineffective assistance of counsel.” Michel, 989 So.2d at 681.

We find that defense counsel’s failure to contest the trial court’s sentence in this case does not amount to ineffective assistance of counsel apparent on the face of the record. Successfully demonstrating ineffective assistance of counsel has two steps:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, a defendant must show that his or her attorney’s actions (1) were below an objective standard of reasonableness, and that, (2) those unreasonable actions created a reasonable probability that the result of the proceeding would have been different. Mosley v. State, 209 So.3d 1248, 1264 (Fla. 2016).

Here, it does appear that the trial court sentenced Appellant to a greater-than-agreed-upon/understood sentence. Though there may have been some ambiguity in the written plea bargain concerning whether ten years was the maximum possible overall sentence, or whether ten years was the maximum possible prison sentence, the trial court subsequently indicated that the “ten year cap” included both prison time and probation when it told Appellant: “Do you understand that the court gives you—because there’s a ten year cap that could include probation, right, because the court could say six years and four years probation or something because the cap is ten years.”

It is possible that defense counsel may have chosen not to object to the sentence or file a motion to withdraw the plea because counsel had a good faith belief that the sentence, even if more than agreed to, was still more favorable to Appellant than a sentence that might result from risking the plea not being accepted at all. In other words, counsel may have chosen not to object for strategic purposes. Our jurisprudence is one that robustly protects strategic and tactical decisions by defense counsel. See Hannon v. State, 941 So.2d 1109, 1118 (Fla. 2006) (“The defendant carries the burden to ‘overcome the presumption that,, under- the circumstances, the challenged action “might, be considered sound trial strategy.” ’" (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052)). “There is a strong presumption that trial counsel’s performance was not ineffective,” id., arid in reviewing attorney performance, we should not fall prey to “the distorting effects of hindsight, [instead] evaluat[ing] the conduct from counsel’s perspective at the time.” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Given the State’s strong evidence of guilt, defense counsel may have had a reasonable basis to conclude that, were the plea and sentence to be withdrawn, the State could successfully charge Appellant with all four lewd or lascivious battery counts. If so, then Appellant would fínd herself facing up to sixty years in prison, see §§ 775.083(3)(d), 800.04(4), Fla. Stat. (2015), rather than the ten-year prison and five-year sex offender probation sentence she actually received.

Our reasoning in this case is analogous to that in McClough v. State, where the Second District Court of Appeal held that defense counsel was not ineffective in failing to object to the sentence imposed even though the sentence imposed exceeded the negotiated cap. 74 So.3d 158, 160 (Fla. 2d DCA 2011). As we do here, the court in McClough concluded: “we can conceive of a tactical explanation for counsel’s silence.. Counsel had a reasonable basis to be concerned that given another opportunity, thé court would have allowed [the defendant] to withdraw his plea and sentenced him to a significantly longer term.” Id. (citations omitted).

Conclusión

Because defense counsel may have had a strategic decision for not objecting to the sentence or moving for a withdrawal of plea, we affirm the final judgment and sentence. There was not ineffective assistance by, defense counsel on the face, of record. Our. affirmance is without prejudice to. Appellant filing a timely motion under Florida,. Rule of Criminal Procedure 3.850. See McClough, 74 So.3d at 160; Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008).

Affirmed.

Gerber, C. J., And Warner, J., concur.

      . We offer no opinion on the merits of such a motion should one be made.


source: Caselaw Access Project

author: May, J.

license: Public Domain

text:
    Gil CAMACHO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D16-4064
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Gil Camacho, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber; Assistant Attorney General, West Palm Beach, for Respondent.
   May, J.

The petitioner alleges ineffective assistance of appellate counsel (IAAC) in failing to raise seven issues on appeal. We find merit in the fourth issue and grant the petition solely on that ground. That issue concerns the trial court’s failure to hold a competency hearing. after appointing- experts to evaluate petitioner’s competency.

The State charged the - petitioner with attempted first-degree murder with a weapon and false imprisonment. He was convicted of attempted second-degree murder and sentenced. We affirmed. Camacho v. State, 192 So.3d 568 (Fla. 4th DCA 2016).

In this proceeding, the petitioner alleged appellate counsel was ineffective for failing to argue on appeal that:

(1) his probation was illegally ordered to run concurrent with his period of incarceration;
(2) double jeopardy barred his sentences;
(3) his scoresheet improperly listed the primary offense, of attempted second-degree murder as a level 9 offense rather than a level 8 offense. And, the scoresheet incorrectly included points for severe victim injury without a jury finding;
(4) the trial court failed to hold a competency hearing after appointing experts to evaluate competency;
(5) trial counsel was ineffective for advising him not to testify at sentencing;
(6) other grounds supported a reversal on the denial of the motion to suppress; and
(7) the court erred in admitting inflammatory photographs of the victim’s injuries and bandages.

In his fourth point, the petitioner argues his appellate counsel was ineffective for failing to argue, the trial court erred in not holding a competency hearing and ruling on the issue after appointing experts to evaluate his competency. Although the trial court docket reflects the court held a hearing on defendant’s competency on October 25, 2013, the order merely provides: “Mr. Camacho was present in Court this morning for a status hearing.” There is no other indication in the record of any ruling on the competency issue.

The State responds the defendant aided in his defense demonstrating his competence, but acknowledges that the case may need to be remanded for a retroactive determination of Camacho’s competency.

“The criteria for proving ineffective assistance of appellate counsel parallels] the Strickland standard for ineffective trial counsel.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000) (citation omitted). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (citation omitted).

We have previously granted an IAAC petition on essentially the same facts. Silver v. State, 193 So.3d 991 (Fla. 4th DCA 2016). There, the trial court ordered two experts to evaluate the defendant’s competency and to submit written evaluations. Id. at 993. The case later proceeded to trial, but the record contained “no doctor’s reports, no hearing on Silver’s competence, and no order on the matter.” Id.

We held the trial court was required to conduct a competency hearing after appointing experts to evaluate Silver’s competency because the appointment of experts suggested there were reasonable grounds to believe Silver was not competent. Id. Nevertheless, we recognized that a retroactive determination of competency may be possible if “a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial” were available. Id. at 994 (citations omitted).

Here, the petitioner should be afforded the same relief. We therefore grant the petition as to ground four only and remand to the trial court for proceedings consistent with this opinion.

Warner and Kuntz, JJ., concur.


author: Klingensmith, J.

text:
    STATE of Florida, Appellant, v. Marsha DIXON, Appellee.
    No. 4D17-481
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   Klingensmith, J.

Appellee, Marsha Dixon, was charged with violating her probation by failing to report to the probation office as directed over a course of six months and by failing to pay her court costs. At Dixon’s final violation of probation hearing, the State asked the trial court for a continuance because its sole witness, a probation officer, did not appear to testify. The trial court denied - the request and proceeded with the hearing. Because the State’s witness did not appear, the State presented no evidence to establish that Dixon violated the conditions of her probation and the trial court dismissed the warrant. We find the trial court erred in denying the continuance, and reverse and remand for a new hearing.

We review the trial court’s denial of the motion for continuance for abuse of discretion. See State v. Reed, 421 So.2d 754, 755 (Fla. 4th DCA 1982). To prevail on a motion for continuance due to witness unavailability, a party must show: “(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.” Geralds v. State, 674 So.2d 96, 99 (Fla. 1996).

Based on the record, the State satisfied the four factors set forth in Geralds and should have been granted a continuance. In addition to subpoenaing the witness, the prosecutor called the witness the day before trial and twice the day of trial, emailed the witness, and even called the witness’s place of employment in an effort to locate him. This was sufficient to show that the State exercised due diligence to obtain its witness and satisfied the first requirement.

The second and third factors were also met. Here, the witness was a probation officer employed by the State. As a sworn law enforcement officer, prior cases have established that there is a presumption he would have been available and willing to testify favorably to the State. See State v. Humphreys, 867 So.2d 596, 598 (Fla. 2d DCA 2004) (“[A]s the arresting. officers were still employed by Pasco County Sheriffs Office, they would have been available and willing to testify in a way likely favorable to the State; thus, the second and third factors are met.”).

Finally, the State was materially prejudiced by the denial of a continuance. Without its sole witness, the State was unable to adduce any evidence to establish that Dixon willfully and substantially violated her probation as charged.

We recognize that Dixon would have been prejudiced had the continuance been granted, especially since she was incarcerated while awaiting her hearing. However, when granting a continuance at the State’s request, a trial court has the ability to alleviate any such prejudice by scheduling an expedited hearing or releasing the defendant from detention in appropriate situations with either a low bond or on the defendant’s own recognizance.

In sum, because the record reflects that each of the four enumerated factors were satisfied by the State, the trial court erred in denying the State’s request for a continuance; therefore, its dismissal of the warrant was improper. See State v. Cook, 796 So.2d 1247, 1247-48 (Fla. 5th DCA 2001) (holding that the trial court erred in denying the State a continuance when the State’s sole witness, a probation officer, was unable to travel to a final violation of probation hearing to testify due to inclement weather). We therefore reverse and remand for the trial court to conduct a new violation of probation hearing.

Reversed and Remanded.

Warner and Ciklin, JJ., concur.


text:
    Karen WINSLOW, Appellant, v. Mallory N. DECK, as Personal Representative of the Estate of Michael S. Deck, Appellee.
    No. 4D16-4312
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2017]

      Brandan J. Pratt and Jennifer L. Fox of Huth, Pratt & Milhauser, Boca Raton, for appellant.
    Rohan Kelley of The Kelley Law Firm, PL, Fort Lauderdale, for appellee.
   Klingensmith, J.

Appellant, Karen Winslow, appeals the trial court’s order dismissing her counter-petition for administration with prejudice for failure to file , a pleading satisfying the statutory requirements set forth in section 733.212(3), Florida Statutes (2013), within the applicable statute of limitations. Upon review of the pleadings filed by appellant, we find appellant’s petition was not time-barred, and that the court erred by not affording her the opportunity to amend her petition.'

The decedent drafted two wills that are at issue in this case.. The first will was drafted in January 1991, leaving his entire estate to his two adult children. Several years later, the decedent befriended appellant and they began living together. Thereafter, the decedent drafted a second will in November 2014 containing language purporting to revoke all prior wills and leaving his entire estate to appellant. On May 7, 2015, shortly after the decedent passed away, his daughter Mallory successfully petitioned the court to admit the first will to probate and to appoint her as the personal representative of the estate.

On May 27, 2015, appellant filed the second will. Two days later, she filed four additional documents with the court: 1) an emergency petition to revoke letters of administration; 2) a counterpetition for administration with the second will attached thereto; 3) an objection to Mallory’s petition and an objection to her appointment as personal representative; and 4) a declaration that the probate proceeding was adversary. Less than a month later, the court entered an order denying appellant’s emergency petition without prejudice and upholding the letters of administration issued for the first will.

More than a year later, Mallory moved to dismiss appellant’s counterpetition with prejudice, arguing that appellant lacked standing to contest the first will. In the motion, Mallory asserted that after receiving notice that the decedent’s estate would be administered in accordance with the first will, appellant had three months to object to the probate of the first will. Mallory alleged that although appellant immediately filed an emergency petition and counterpetition, appellant failed to file any pleading that specifically requested the first will be revoked. Appellant responded by arguing that the court should deny the motion to dismiss, or alternatively, grant the motion but with leave to amend the counterpetition.

The court ultimately entered a final order dismissing the counterpetition with prejudice, ruling that neither the emergency petition nor the counterpetition satisfied the statutory requirements of section 733.212(3) for failure to adequately request relief. This appeal followed.

“A trial court’s order of dismissal is reviewed de novo.” Pasquale v. Loving, 82 So.3d 1205, 1207 (Fla. 4th DCA 2012). “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Gordon v. Kleinman, 120 So.3d 120, 121 (Fla. 4th DCA 2013) (quoting Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008)). “[E]xhibits attached to a complaint ‘are encompassed within the four corners of the complaint and must be considered therewith’ on a motion to dismiss.” Chandler v. City Of Greenacres, 140 So.3d 1080, 1083 (Fla. 4th DCA 2014) (quoting Abele v. Sawyer, 750 So.2d 70, 74 (Fla. 4th DCA 1999)); see also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).

Pursuant to section 733.212(3), interested parties are barred from requesting the court to revoke the probate of a will if they fail to object to the validity of the will within three months of receiving notice:

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

§ 733.212(3), Fla. Stat. (2013). Section 733.208, Florida Statutes (2002), provides that after discovering a later will, “any-interested person may petition to revoke the probate of the earlier will or to probate the later will or codicil.” An “interested person” is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat. (2013).

Florida Probate Rule 5.020(a) provides that “[a]ll technical forms of pleadings are abolished. No defect of form impairs substantial rights, and no defect in the statement of jurisdictional facts actually existing renders any proceeding void.” Moreover, after an interested person petitions the court to probate a later will or requests to revoke an earlier will, the proceedings are declared adversarial and the Florida Rules of Civil Procedure govern the proceedings. See Fla. Prob. R. 5.025(d)(2).

As a general rule, trial courts should not prevent a petitioner from challenging a will because of a technical defect in the petitioner’s pleading without allowing for a reasonable opportunity to amend. See Pasquale, 82 So.3d at 1208; see also Feather v. Sanko’s Estate, 390 So.2d 746, 747 (Fla. 5th DCA 1980) (“Although Feather’s pleading might not have been sufficient to withstand a motion to strike, she should have been given a reasonable chance to amend or file further pleadings, rather than suffer what amounts to a default judgment against her claim.”). The law is clear that trial courts must liberally construe court rules to allow parties to freely amend their pleadings in the interests of justice:

Florida Rule of Civil Procedure 1.190(a), which governs amendments to pleadings, “reflect[s] a clear policy that, absent exceptional circumstances, requests for leave to amend pleadings should be granted.” Thompson v. Jared Kane Co., 872 So.2d 356, 360 (Fla. 2d DCA 2004). “A trial court’s refusal to allow amendment ... generally constitutes an abuse of discretion ‘unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.’” PNC Bank, N.A. v. Progressive Emp’r Servs. II, 55 So.3d 655, 660 (Fla. 4th DCA 2011) (quoting Fields v. Klein, 946 So.2d 119, 121 (Fla. 4th DCA 2007)).

Fed. Home Loan Mortg. Corp. v. Beekman, 174 So.3d 472, 474 n.1 (Fla. 4th DCA 2015).

Even though neither the emergency petition nor the counterpetition were models of clarity, they were nevertheless sufficient to withstand a motion to dismiss. In the emergency petition, appellant asserted that the first will was not the last will of the decedent, that she filed a coun-terpetition to admit the second will to probate, and that issuing letters of administration for the first will was improper since the second will revoked all prior wills. In the counterpetition, appellant attached the second will, claimed that it was properly executed, and requested an independent personal representative be appointed. Thus, as it is clear from the allegations contained in these filings that appellant sought to revoke the probate of the first will and admit the second will, appellant satisfied both sections 733.208 and 733.212(3) despite technically failing to properly request relief. See Fla. Prob. R. 5.020(a).

Further, by finding that appellant’s pleadings were insufficient under section 733.212(3), the court should have granted the motion to dismiss but with leave to amend the counterpetition to incorporate a proper request for relief. See Fla. R. Civ. P. 1.190(a); Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 501 (Fla. 4th DCA 2001).

Nothing in the record indicates that appellant abused the privilege to amend, there would have been prejudice to Mallory by permitting leave to amend, or the amendment would have been futile. See Beekman, 174 So.3d at 474 n.1. Given that appellant made her first and only request for leave to amend the counterpetition shortly after Mallory filed her motion to dismiss, clearly appellant did not abuse the privilege to amend. Granting the opportunity to amend would not have prejudiced Mallory because she was aware of the gravamen of appellant’s two petitions. Indeed, for over a year after the counterpetition was filed, Mallory participated in discovery, conducted depositions, and even requested that a handwriting expert inspect the second will for forgery. Allowing appellant to amend her counterpetition to include a proper request for relief, therefore, would have only confirmed what Mallory already knew—that appellant was hoping to revoke the probate for the first will, and instead admit the second will. Finally, appellant’s amendment to her counterpetition would not have not been futile. As the sole beneficiary named in the second will, appellant was unquestionably an interested person in the decedent’s estate who had a right to challenge the probate administration of the decedent’s first will. See Feather, 390 So.2d at 747.

Accordingly, we reverse the trial court’s dismissal of appellant’s counterpetition, and remand with instructions for the court to grant appellant’s request for leave to amend her counterpetition to incorporate a proper request for relief. Because appellant filed the original counterpetition within three months after receiving, notice of the administration of the decedents estate, she is not time-barred by section 733.212(3) since her amended counterpetition will relate back to the date she filed the original. See Fla. R. Civ. P. 1.190(c) (“When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”).

Reversed and Remanded.

Ciklin, J., and Metzger, Elizabeth A., Associate Judge, concur.


author: Per Curiam.

text:
    Joseph D. BALDINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-924
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2017]
    Joseph D. Baldino, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In this appeal of a trial court order denying appellant’s motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), we conclude that the trial court lacked jurisdiction to rule because appellant’s direct appeal was also pending in this Court. Therefore, we reverse and remand to the trial court to dismiss the motion without prejudice to appellant’s right to refile it after final disposition of the direct appeal. See Everett v. State, 993 So.2d 1116 (Fla. 4th DCA 2008); Major v. State, 882 So.2d 1058 (Fla. 4th DCA 2004); Campbell-Eley v. State, 763 So.2d 539 (Fla. 4th DCA), rev. denied, 789 So.2d 348 (Fla. 2000),

Gerber, C.J., Warner and Klingensmith, JJ., concur.


text:
    Willie SLADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-957
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2017]
    Willie Slade, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed without prejudice to appellant’s right to refile his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence with supporting record documentation attached on his claim of an oral versus written sentencing discrepancy. Zill v. State, 162 So.3d 83 (Fla. 4th DCA 2014).

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


author: Gerber, C.J.

text:
    Nicolas DOMINIQUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2031
    District Court of Appeal of Florida, Fourth District.
    [August 9, 2017]
    Carey Haughwout, Public Defender, and Richard B. Greene and Patrick B. Burke, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

      . Judge Forst has substituted for Judge Stevenson, who served on the panel which issued Dominique II.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

Gerber, C.J.

Pursuant to our supreme court’s decision in State v. Dominique, 215 So.3d 1227 (Fla. 2017), which quashed our decision in Dominique v. State, 171 So.3d 204 (Fla. 4th DCA 2015) (“Dominique II”), we remand to the trial court to reinstate the defendant’s conviction and sentence for second degree murder, as a lesser included offense of first degree murder.

Affirmed; remanded to reinstate conviction and sentence.

Ciklin and Forst, JJ., concur.


text:
    STATE of Florida, Appellant, v. Tiffany SNUFFER, Appellee.
    No. 4D16-3003
    District Court of Appeal of Florida, Fourth District.
    [August 9, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.

      Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
   Gerber, C.J.

The state appeals from the circuit court’s order granting the defendant’s motion to dismiss her probation violations. The court found that it lacked subject matter jurisdiction over the defendant’s probation violations because, pursuant to Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), review denied, SC16-936, 2016 WL 3149708 (Fla. June 6, 2016), the defendant was not arrested on the probation violations until after her probationary period expired, and the probationary period was not tolled due to the non-criminal nature of the probation violations.

The state argues that because the defendant’s alleged non-criminal probation violations included absconding from supervision, her probationary period was tolled pursuant to Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016), which we issued after the circuit court’s decision.

The defendant properly concedes that Williams controls. We agree and reverse, as explained in the following procedural history and analysis.

Procedural History

The defendant was sentenced to a probationary period for various crimes. During the defendant’s probationary period, the defendant’s probation officer filed an affidavit alleging the defendant violated her probation by:

1. failing to make a full and truthful report to her probation officer in that she failed to report as directed for four consecutive months;
2. failing to comply with all instructions given by her probation officer in that she failed to report as instructed for a probation appointment;
3. changing her residence without first obtaining her probation officer’s permission and “her current whereabouts [are] unknown”;
4. failing to make a full and truthful report to the probation officer in that she falsely reported her home address;
5. having contact with a person whom she was prohibited from contacting;
6. failing to make restitution payments;
7. failing to pay supervision costs;
8. failing to undergo a drug and alcohol abuse evaluation; and
9. failing to complete drug and alcohol abuse treatment.

Based upon these allegations, and before the defendant’s probationary period expired, the circuit court issued a warrant for the defendant’s arrest.

After the defendant’s probationary period expired, the defendant was arrested on the probation violation warrant in South Carolina.

Following the defendant’s arrest, she filed a motion to dismiss the probation violations. She argued that the circuit court lacked subject matter jurisdiction over her probation violations because, pursuant to Mobley, she was not arrested on the probation violations until after her probationary period expired, and the probationary period was not tolled due to the non-criminal nature of the probation violations.

At the hearing on the motion to dismiss, the state argued, among other things, that Mobley was inapplicable because the probation violation affidavit alleged the defendant had absconded during her probationary period, thus tolling the probationary period.

The circuit court granted the defendant’s motion to dismiss. The court found that it lacked subject matter jurisdiction over the defendant’s probation violations pursuant to Mobley. The.court dismissed the defendant’s probation violations and terminated her probation.

This appeal followed. The state argues that because the defendant’s alleged noncriminal probation violations included absconding from supervision, her probationary period was tolled pursuant to Williams, which we issued after the circuit court’s decision.

Our Analysis

We agree with the state’s argument. We rely upon our reasoning in Williams;

We follow our supreme court and our sister courts to hold that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.
The fact that the defendant here allegedly absconded from supervision distinguishes this case from Mobley. If the defendant in Mobley had been alleged to have absconded from supervision, then Mobley's reasoning would, have been moot, as we would have concluded there, as we do here, that ,the probationary period was toiled until the defendant was once more placed under probationary supervision.
Put another way, absconding from supervision is an independent basis'for tolling a defendant’s probation term, regardless of whether Mobley’s reasoning against tolling would have otherwise applied. Put yet another way, Mobley does not overrule the case law recognizing ■that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed , under probationary supervision.

Williams, 202 So.3d at 921.

Consistent with Williams, we reverse to allow the circuit court to determine if the defendant absconded from supervision as alleged in the probation violation affidavit. If the court finds that the defendant absconded from supervision, then her probationary period was tolled until she was arrested, and the circuit court has subject matter jurisdiction over the alleged probation violations.

Reversed and remanded for proceedings consistent with this opinion.

Levine and Conner, JJ., concur.


text:
    CELEBRATION CRUISE LINE, LLC, Appellant, v. Oleksandr DOBRIANSKIY; Celebration Cruise Line, Inc.; Gunehr Shipping Limited; and XYZ Corp., Appellees.
    No. 4D17-514
    District Court of Appeal of Florida, Fourth District.
    [August 9, 2017]
    Michael J. Dono, Jerry D. Hamilton and Robert M. Oldershaw of Hamilton, Miller & Birthisel LLP, Miami, for appellant.
    No brief filed on behalf of appellees.
   Per Curiam.

Celebration Cruise Line, LLC appeals an order denying its motion to dismiss a personal injury suit based upon forum non conveniens. Because the trial court did not conduct the analysis required by Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996), or provide any explanation for denial, we reverse.

A cruise ship employee is suing for negligence under the Jones Act and unseaworthiness after the employee lost a finger and permanently damaged three other fingers while mooring a supply vessel. Appellant moved to dismiss arguing in part that Broward County is an inconvenient forum and Florida has no nexus to this suit. Appellant provided affidavits and contracts to show that Celebration Cruise Holdings, Inc. sold the ship for scrap before the employee, a Ukrainian citizen, was hired by another company in the Ukraine to help transport the ship from the Bahamas to India. On route to India, he was injured in Namibia. Appellant alleged that it did not own or have control of the ship, it did not hire the employee, the ship was never in Florida after it was sold, the employee did not receive medical treatment in Florida, and there are no witnesses here. Appellant was mistakenly listed as the ship owner on the employment contract, but the ship had been sold and delivered to the buyer, Gu-nehr Shipping, Ltd., before the employee was recruited.

The employee did not provide any evidence to the contrary. He argued that resolution of this issue was premature until he conducted further discovery.

The court did not weigh the Kinney factors at the hearing on the motion to dismiss or make any findings in its order. See also Fla. R. Civ. P. 1.061(a) (codifying the Kiriney factors). The court simply denied the motion without explanation.

Accordingly, we reverse and remand for further proceedings. See, e.g., Sybac Solar AG, Co. v. Falz, 174 So.3d 383 (Fla. 2d DCA 2015).

Reversed and remanded.

Gerber, C.J., Warner and Ciklin, JJ., concur.


author: Forst, J.

text:
    Joseph DEJESUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3072
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2017]

      Leonard S. Feuer of Leonard Feuer, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Joseph DeJesus (“Appellant”) appeals the trial court’s final judgment adjudicating him guilty of grand theft and burglary. We write solely to address Appellant’s challenge as to whether the trial court properly denied his motion for judgment of acquittal on both counts. As discussed below, we reverse the trial court’s denial of Appellant’s motion and vacate the judgment.

Background

The State charged Appellant with grand theft and burglary of a dwelling. According to the State, Appellant burglarized the victim’s home, stealing numerous pieces of property from her. The jury returned a verdict of guilty on both counts. The trial court sentenced Appellant on the grand theft charge to five years in prison and, on the burglary count, to ten years in prison to be followed by five years’ probation. The two sentences were to run concurrently.

At trial, the State’s chief evidence was Appellant’s historical cell site data, which was able to track Appellant’s general movements. The State showed that on the date of the burglary, Appellant drove 103 miles from his home to within a few miles of the victim’s home. A detective, relying on the cell site data, explained the data could track Appellant’s location to “within seven miles” of the burglary.

The State also admitted another key piece of evidence: a still image from a surveillance video showing Appellant and another person walking away from a white Ford Edge towards a dumpster five days after the burglary. The picture showed Appellant walking a few feet in front of the other person, who was carrying a white garbage bag. Law enforcement later determined that the garbage bag contained items stolen from the victim’s home, as well as a Sports Authority bag which did not belong to the victim. Appellant’s fingerprints were found on the Sports Authority bag, but not on the stolen items. Moreover, none of the stolen items were found within the Sports Authority bag.

Recordings of Appellant’s jail phone calls were also put into evidence. In the calls, Appellant read the allegations in the information to his girlfriend and broadly talked about the lack of evidence against him. Appellant also talked about how he got a new haircut, and that nobody liked it. The State later hinted that Appellant got the haircut to avoid identification as a suspect in the burglary.

After the State presented its case in chief, Appellant argued the evidence was insufficient to convict and moved for a judgment of acquittal. The trial court denied the motion. Appellant now appeals the denial.

Analysis

“A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury’s verdict.” State v. Konegen, 18 So.3d 697, 698 (Fla. 4th DCA 2009) (quoting State v. Burrows, 940 So.2d 1259, 1261 (Fla. 1st DCA 2006)). “It is well settled that, when reviewing a judgment of acquittal, the appellate court must apply the competent, substantial evidence standard and ‘consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [S]tate.’” Id. at 699 (alteration in original) (quoting Burrows, 940 So.2d at 1261).

When the evidence qualifies as wholly circumstantial, a special standard of review is applicable. Knight v. State, 186 So.3d 1005, 1009-10 (Fla. 2016); State v. Law, 559 So.2d 187, 188 (Fla. 1989); Bronson v. State, 926 So.2d 480, 482 (Fla. 2d DCA 2006). The Florida Supreme Court elaborated on this standard in Knight, stating, “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilty a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Knight, 186 So.3d at 1009 (alterations in original) (quoting Jaramillo v. State, 417 So.2d 257, 257 (Fla. 1982)). In other words, the State “must introduce competent evidence which is inconsistent with the defendant’s theory of events.” Johnston v. State, 863 So,2d 271, 283 (Fla. 2003). “[EJvidence which furnishes nothing more than a suspicion that the defendant committed the crime is not sufficient to uphold a conviction.” Garcia v. State, 899 So.2d 447, 449 (Fla. 4th DCA 2005) (citing Davis v. State, 436 So.2d 196, 198 (Fla. 4th DCA 1983)).

As a preliminary matter, we address the State’s contention that Appellant never argued in the trial court that the circumstantial evidence test applied or that he' even posited a reasonable hypothesis of innocence. We find that Appellant did both.

Upon making his motion for judgment of acquittal, Appellant specifically cited to Bronson, wherein the court discussed and applied the circumstantial evidence test. 926 So.2d at 482-485. In response, the trial court in the instant case acknowledged having reviewed Bronson and the other cases cited by Appellant as support for utilizing this test.

Furthermore, Appellant did present a reasonable hypothesis of innocence. His defense was that he did not commit the crime charged, and was not present when it was committed, suggesting during closing argument that he may have been at a friend’s home. “It is a fundamental requirement of our criminal justice system that at trial, the State bears the burden of proof beyond a reasonable doubt.” Dausch v. State, 141 So.3d 513, 517 (Fla. 2014). In light of a defendant’s right not to testify at trial, this. denial would appear to be a sufficient reasonable hypothesis of innocence.

Addressing the merits of Appellant’s argument on appeal, we conclude the State’s circumstantial evidence was lacking. The evidence furnished only a suspicion that Appellant was complieit in thé charged crimes. Thé State’s main evidence was Appellant’s location near the scene of the crime around the time of the burglary. However,' without more, “mere presence at the scene of the crime [is]' insufficient to establish participation in the offense.” Garcia, 899 So.2d at 450; accord Hanks v. State, 43 So.3d 917, 918 (Fla. 2d DCA 2010). Even if mere presence could' be enough, the State’s evidence in this case did not even prove' that Appellant was at the actual scene of the crime. The cell site data could only track his whereabouts to within a few miles of the victim’s-home. In fact, one detective testified that the data could only prove Appellant was “about seven -miles away” from the .victim’s home.

The State’s, remaining evidence also fails to exclude every reasonable hypothesis of innocence. A still image of a surveillance video showed Appellant walking with another person, five days after the charged, burglary, to throw away a white garbage bag which contained items stolen in the burglary. The State argued that the picture- proved Appellant possessed the stolen property, which in turn would allow the jury to infer he committed grand theft and burglary.

However, the still image in question does not prove that Appellant had possession of the stolen items. Even acknowledging the legal possibility of constructive possession, in this case the State’s still image showing Appellant’s mere proximity to someone possessing stolen property does not in and of itself demonstrate that Appellant himself either actually possessed the property or “acted in concert” with the other person such that he constructively possessed the property. The image does not show Appellant having exclusive possession of the stolen property or displaying a distinct and conscious assertion to possess the stolen property. Moreover, the image does not show Appellant acting “in concért” with the other person. There was no other evidence, besides the still image, linking Appellant to a criminal collaboration with the Other person. What is more, the fact that the State identified Appellant’s fingerprints on a Sports Authority bag that was -within the same white garbage bag that contained the stolen property is not direct' evidence that Appellant ever touched, let alone possessed, the stolen items, as his fingerprints were not found on any of the stolen items and none of said items were found in the Sports Authority bag that had been touched by Appellant.

This case is analogous to Garcia, where this Court held that a defendant’s mere presence in a van .that.-contained stolen items was insufficient to prove actual or constructive possession—even if the defendant was sitting in the back seat where the stolen items were located. 899 So.2d at 451. It is also analogous to Bronson, where the Second District- Court of Appeal similarly held that the defendant’s mere presence in a truck containing stolen property, driven by the defendant’s father, was insufficient to prove actual or constructive possession. 926 So.2d at 483-84 (Fla. 2d DCA 2006). Third, we liken this case to Ward v. State, where we held that even though the defendant was found in "possession of other stolen property from the same burglary, he still could not be found guilty of possessing a stolen scooter because “there [was] no evidence that [the defendant] was ever in actual possession of the scooter [as opposed to the other items].” 40 So.3d 854, 857 (Fla. 4th DCA 2010).

We additionally note that Appellant’s fingerprints on the white Ford Edge, a car seen by a witness at a prior burglary, do not prove that Appellant, or even the white Ford Edge, was at the site of the burglary charged in this case. Thus, the fingerprints are direct evidence only that Appellant was in the car at some point in time, and it requires a separate circumstantial eviden-tiary inference that the time in question was during the charged burglary. Similarly, the fact that the white Ford Edge, five days after the charged burglary, contained stolen items from that burglary, amounts only to circumstantial evidence that the vehicle was used in that burglary—it is neither direct evidence nor inconsistent with another reasonable hypothesis of Appellant’s innocence, especially in light of an absence of evidence that Appellant himself actually possessed those stolen items.

Finally, contrary to the State’s assertion, there was no evidence Appellant admitted to the crimes in his jail calls. Instead, in those calls, he only read aloud the information and, quite fittingly enough, at times criticized the State’s weak evidence. The State highlights two statements: “[the information] saying that [the woman who rented the white Ford Edge] saying she rented the car out for me. Then it said every time she said she rented the car for us. She said she didn’t know me and [the co-defendant] were doing burglaries, right?,” and Appellant remarking on his new haircut. Neither comment is incompatible with Appellant’s reasonable hypothesis of innocence.

We recognize the persuasive strength of the cumulative evidence against Appellant in the instant case, but stress the importance of not allowing that to lead to a misapplication of the special standard of review required here, when all the evidence was circumstantial. See Law, 559 So.2d at 188 (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” (emphasis added)); see also Davis, 436 So.2d at 198 (“Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.” (quoting Davis v. State, 90 So.2d 629, 631-32 (Fla. 1956))). Appellant’s reasonable hypothesis of innocence was that he was elsewhere during the burglary. The State had no direct evidence placing either Appellant or the white Ford Edge at the scene of this burglary, and its cumulative circumstantial evidence was insufficient to rebut Appellant’s hypothesis of innocence.

Conclusion

The trial court erred in denying Appellant’s motion for judgment of acquittal. The circumstantial evidence of Appellant’s involvement in the burglary and theft failed to exclude every reasonable hypothesis of innocence. We thus reverse the trial court’s final judgment with instructions to grant Appellant’s motion for judgment of acquittal.

Reversed.

Warner and Levine, JJ., concur.

      . We do not address Appellant’s other arguments on appeal regarding certain jury instructions and the admission of evidence of a prior burglary.

      . The State also introduced evidence that Appellant’s fingerprints were found on the White Ford Edge, and that the vehicle was seen at the site of an uncharged burglary two days before the crime at issue in this case. A witness later testified that she rented the vehicle in her name for Appellant.

      . Pursuant to section 812.022(2), Florida Statutes (2011), "proof of possession of prop- ' erty recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” Such "unexplained possession of recently stolen property is not only sufficient to support a theft 'conviction, but when a burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of the recently stolen goods also supports a conviction for burglary.” Francis v. State, 808 So.2d 110, 134 (Fla. 2001) (quoting T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992)).

      . As this Court wrote, “[t]he crucial inquiry in determining [possession] is whether possession is personal and ‘involve[s] a distinct and conscious assertion of possession by the accused.’” Ward v. State, 40 So.3d 854, 857 (Fla. 4th DCA 2010) (third alteration in original) (quoting Chamberland v. State, 429 So.2d 842, 843 (Fla. 4th DCA 1983)). That said, a defendant does not necessarily need personal .possession, as he or she can constructively possess stolen property if there is sufficient evidence that the defendant acted "in concert” with another person who in turn possessed the property, "The ‘exclusive’ requirement does not mean that; defendant's possession must be separate from the possession of all other persons. The joint possession of two or more persons acting in concert is ‘exclusive’ as to any one of them.” Id. at 856 (quoting Bozeman v. State, 931 So.2d 1006, 1008 (Fla. 4th DCA 2006)).


text:
    Vincent JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1528
    District Court of Appeal of Florida, Fourth District.
    [ July 19, 2017 ]

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and sentence for two counts of first degree murder and one count of attempted first degree murder. He raises three issues. First, he argues the trial court erred in denying his motion for judgment of acquittal. In his second and third issues, he argues the court erred in sentencing him to a mandatory minimum under the 10-20-Life statute and in designating him as a habitual felony offender. We affirm issues one and two, but find merit in his third issue. We therefore affirm in part, reverse in part, and remand for the trial court to strike the habitual felony offender designation.

The defendant’s conviction stems from a shooting incident outside of a park. The jury found the defendant guilty of two counts of first degree murder and one count of attempted first degree murder. Both at the conclusion of the State’s case and after the close of the evidence, the defendant moved for a judgment of acquittal, arguing the State failed to prove premeditation. The court denied both motions.

The court sentenced the defendant to life sentences without parole for the two counts of first degree murder. Due to his use of a gun, the court sentenced the defendant to concurrent life sentences under section 775.087(1)(a), Florida Statutes (2016), the “10-20-Life” statute. For the third count of attempted first degree murder, the court sentenced the defendant to life with a twenty-year mandatory minimum term. The court designated the defendant a habitual felony offender on the two counts of first degree murder.

In his third issue, the defendant argues that the mandatory life sentences cannot be enhanced by designating him as a habitual felony offender under section 775.084(4)(a)1, Florida Statutes (2016). The State agrees that capital crimes cannot be enhanced under this statute.

We have de novo review. Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009).

Capital crimes cannot be enhanced under the plain language of section 775.084(4)(a)1. Parrimon v. State, 644 So.2d 95, 96 (Fla. 2d DCA 1994). The highest degree of felony which may- be enhanced for a habitual felony offender- is a life felony or a felony of the first degree. § 775,084(4)(a)1, Florida Statutes (2016). Here, the defendant was convicted of two counts of first degree murder, which is a capital felony. He cannot be sentenced as a habitual felony offender for these offenses.

We therefore affirm his conviction and sentences, but reverse his designation as a habitual felony offender. We remand with directions to strike the designation of habitual felony offender for the first degree murder counts.

Affirmed-in part, reversed in part, and remanded.

Taylor and Conner, JJ., concur.


author: BILBREY, J.

text:
    Kathleen Lynn HORN, former wife, Appellant, v. Mark Gordon HORN, former husband, Appellee.
    CASE NO.: 1D16-1619
    District Court of Appeal of Florida, First District.
    Opinion filed January 17, 2017.
    Corrine A. Bylund, Jacksonville, for Appellant.
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellee.
   BILBREY, J.

The Appellant/former wife raises five points in this appeal. We find no reversible error with the final judgment other than paragraph N. That paragraph makes findings about the prospective benefit of relocation should the Appellee/former husband relocate with the child, A.H., from San Antonio, Texas, to any other location in the continental United States, including to the paternal grandmother’s residence in Virginia. It also permits relocation by the former husband without approval from the former wife or trial court.

As the Florida Supreme Court held in Arthur v. Arthur, 54 So.3d 454, 459 (Fla. 2010), “a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence.” See also Sylvester v. Sylvester, 992 So.2d 296 (Fla. 1st DCA 2008). Since paragraph N of the final judgment would allow the former husband to relocate without meeting the requirements of Section 61.13001, Florida Statutes, and since it finds that relocation is A.H.’s best interest without the need- for then-current, competent, substantial evidence to .support it, it is error.

Accordingly, we affirm all of the final judgment except paragraph N. We reverse with instructions that the trial court vacate paragraph N of the final judgment.

AFFIRMED in part, REVERSED in part with instructions.

ROBERTS, C.J., and WINSOR, J., CONCUR.


author: SUAREZ, C.J.

text:
    John MCGRATH, Appellant, v. Robert MARTIN, Jr., et al., Appellees.
    No. 3D15-1821
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017
    The Corona Law Firm, P.A. and Ricardo Corona, for appellant.
    Johnson Law Group and Michael E. Wargo (Boca Raton), for appellees.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   ON MOTION FOR REHEARING

SUAREZ, C.J.

John McGrath moves for rehearing of this Court’s October, 2016 Order which denied Appellant’s motion to file an amended notice of appeal and extension of time and granted Appellee’s motion to dismiss the appeal. For the reasons stated below we grant the Appellant’s motion for rehearing and we withdraw the prior order and issue the following corrected order.

We find the Motion for Rehearing filed in the trial court tolled the time to file the present appeal of the trial court’s dismissal for lack of prosecution. We deny Appellee’s Motion to Dismiss the Appeal. See De La Osa v. Wells Fargo Bank, N.A., 206 So.3d 259 (Fla. 3d DCA 2016); Patton v. Kera Technology, 895 So.2d 1175, 1178 (Fla. 5th DCA 2005) (“a successor judge entered an order dismissing the case, without prejudice, for lack of prosecution.Appellants filed a motion for rehearing, reconsideration and clarification, which the court denied and this appeal followed.”); Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004) (“The ‘Final Order Granting Defendant’s Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,’ entered on October 28, 2003 is a final order from which appellants failed to timely appeal or to move the lower court for rehearing.”[e.s.]); Cape Royal Realty v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) (“We find that Kroll’s motion to set aside the order of dismissal for lack of prosecution .... was intended to operate as a Rule 1.530 motion for rehearing. Upon the timely filing of a petition for rehearing (as was done in the instant case), the rendition of the final order is suspended and the trial court has the power and authority to completely alter or change its final judgment.”).

We also deny Appellant’s Motion to file an Amended Notice of Appeal as unnecessary.

It is important to note that an order on a motion that suspends rendition is not itself appealable. The effect of the motion is merely to delay the running of the time to appeal the original final order or judgment. For example, if a party has filed a timely and authorized motion for rehearing,' the motion would delay the time for taking an appeal from the final judgment to which the motion was directed. The order on the motion for rehearing is not appealable, it merely marks the beginning of the new time period for taking an appeal from the original final order or judgment and cases cited therein.

2 Fla. Prac., Appellate Practice § 2:4 (2016 ed.)


author: PER CURIAM.

text:
    PNC BANK, NATIONAL ASSOCIATION, etc., Appellant, v. Amy SMITH, et al., Appellees.
    Case No. 5D15-3291
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Joseph A. Apatov, of McGlinchey Stafford, Fort Lauderdale, Nicolas M. New and William L. Grimsley, of McGlinchey Stafford, Jacksonville, for Appellant.
    Beau Bowin, of Bowin Law Group, Satellite Beach, for Appellees.
   PER CURIAM.

In this mortgage foreclosure case, PNC Bank, National Association, Successor by Merger to National City Mortgage, a Division of National City Bank (“Bank”), challenges the final judgment entered in favor of Appellees following a trial based upon Appellee, Duncan Smith’s, affirmative defense of “unclean hands.” Because the actions of Bank that the trial court found to have constituted unclean hands involved a separate loan that was not the subject of the mortgage foreclosure complaint, we reverse the final judgment and remand for the entry of a final judgment of foreclosure in favor of Bank.

In 2008, Appellees borrowed money from Bank’s predecessor to construct a home in Brevard County. Appellees executed two separate promissory notes to repay these funds. The first note was secured by the first mortgage, which is the subject of this litigation. The two loans had separate account numbers and were paid separately by Appellees.

In 2009, the original lender on these notes merged into Bank. Appellees continued to pay their first mortgage, now to Bank, but their efforts to also pay the second note or loan were stymied because, for some unexplained reason, Bank initially had no record of this second loan. Ap-pellees tried to resolve this discrepancy with Bank regarding the second loan, but to no avail. Bank eventually located and later “charged off” this second loan in 2010, selling the loan later that year to a third party. In October 2011, Appellees obtained their credit report and noticed that this second loan had been charged off by Bank, thus adversely affecting their credit score. Appellees thereafter -made several additional contacts with Bank in an effort to address or correct the problems with the second loan and to rectify their credit score, but they did not receive a satisfactory response from Bank. In October 2012, Appellees then made a deliberate decision to stop paying on the first mortgage in order “to get [Bank’s] attention” and address the problems surrounding the second loan. Bank then sent Appellees a notice of default on the first mortgage and thereafter filed suit to foreclose this mortgage and note. In response, Appellee, Duncan Smith, filed an answer asserting, among other things, that Bank’s “inequitable conduct” evidenced that Bank was coming to court with unclean hands and therefore, should be denied relief.

“A foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995) (citing Fed. Sav. & Loan Ins. Corp v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1272 (11th Cir. 1989)). Unclean hands may be asserted as an affirmative defense to a mortgage foreclosure action. See Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009). The doctrine is based on the principle that “one who comes into equity must come with clean hands else all relief will be denied him regardless of the merit of [the] claim. It is not essential that the act be a crime; it is enough that it be condemned by honest and reasonable men.” Roberts v. Roberts, 84 So.2d 717, 720 (Fla. 1956). The unclean hands doctrine applies to “any unrighteous, unconscientious, or oppressive conduct by one seeking equitable interference in his own behalf.” Dale v. Jennings, 90 Fla. 234, 107 So. 175, 180 (1925).

At the conclusion of trial, the court announced its findings of fact that Bank had acted with unclean hands and, therefore, was not entitled to the requested foreclosure. As a reviewing court, we do not reweigh the evidence presented at trial nor do we substitute our judgment for that of the trial court. Benn v. Sims, 543 So.2d 330 (Fla. 4th DCA 1989). Nevertheless, “[w]here a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novó.” Wells Fargo Bank, N.A. v. Williamson, 199 So.3d 1031, 1034 (Fla. 4th DCA 2016) (quoting Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008)). Here, we conclude that the trial court committed legal error in its application of the doctrine of unclean hands because “the conduct constituting the ‘unclean hands’ must be connected with the matter in litigation and must affect the adverse party.” Pennington v. Pennington, 390 So.2d 809, 810 (Fla. 5th DCA 1980) (citing Faber v. Landman, 123 So.2d 405 (Fla. 2d DCA 1960)). Bank’s unclean hands pertained to its handling (or mishandling) of the second loan, and there was no evidence presented at trial that Bank’s unclean hands were connected to the default and the subsequent foreclosure of the first mortgage. Whatever recourse Appellees may have had or have now against Bank pertaining to its “unclean” actions regarding this second loan is distinct from the litigation on the first mortgage.

Accordingly, we reverse the final judgment entered in favor of Appellees. Additionally, because the uncontested trial evidence otherwise established Bank’s right to foreclose the first mortgage and note, we remand with directions that the trial court enter final judgment of foreclosure in Bank’s favor.

REVERSED and REMANDED, with directions.

WALLIS and LAMBERT, JJ., concur.

TORPY, J., dissents without opinion.

      . Appellee, Amy Smith, did not separately raise this defense below nor has she appeared in this appeal.

      . Admitted into evidence at trial was a January 22, 2010 letter from Bank to Appellee, Duncan Smith, sent to the property address, notifying him of the delinquent status on this second loan and that this loan was scheduled to be charged off as a bad debt. Duncan Smith denied receiving this letter, testifying that due to his employment, Appellees were living in Saudi Arabia for an extended period of time and only picked up their U.S. mail once a year on their annual return.


author: Kuntz, J.

text:
    CORPORATE CREATIONS ENTERPRISES LLC, f/d/b/a Corporate Creations Enterprises, Inc., Appellant, v. BRIAN R. FONS ATTORNEY AT LAW P.C. and Brian R. Fons, Appellees.
    No. 4D16-927
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      Stephanie L. Serafín, Jane Kreusler-Walsh, and Rebecca Mercier Vargas of Law Office of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and H. James Montalvo of Law Offices of H. James Montalvo, P.A., Miami, for appellant.
    Dave K. Roy of Roy & Associates, P.A. (withdrawn as counsel after filing brief), West Palm Beach, for Brian R. Fons Attorney at Law P:C.; and Brian R. Fons, Austin, Texas, pro se.
   Kuntz, J.

The Plaintiff appeals the court’s order dismissing its complaint for lack of personal jurisdiction. The court concluded that the Defendant lacked the traditional minimum contacts generally required for the exercise of personal jurisdiction over a non-resident defendant. In this case, the parties agreed to the jurisdiction of Florida’s courts in a contract, and we find that because the parties’ contract satisfied the requirements of sections 685.101 and 685.102, Florida Statutes (2015), the exercise of personal jurisdiction by Florida’s courts does not offend due process. We reverse the court’s order dismissing the complaint for lack of personal jurisdiction.

Background

In 1997, the Plaintiff partnered with Defendants to create an Illinois limited liability company. Both the Plaintiff and Defendants contributed capital to the newly-formed company, and both agreed that the Defendants would be the managing member. The parties executed an operating agreement which included both a choice of law provision and a jurisdictional provision stating:

9.7 Legal Interpretation. This Agreement shall be construed and interpreted in accordance with the law of the State of Illinois with respect to the [Illinois Limited Liability Company] Act, and in accordance with the laws of the State of Florida with respect to all other legal and equitable issues, without regard to conflict of laws principles.
9.8 Jurisdiction. All suits, actions, and proceedings relating to this Agreement may be brought only in the courts of the State of Florida located in Palm Beach County or in the U.S. District Court for the Southern District of Florida. Each party consents to the non-exclusive personal jurisdiction of the courts described in this section for the purpose of any suit, action, or proceeding. Each party waives all objections to venue and to all claims that a court chosen in accordance with this section is improper based on venue or a forum non conveniens claim.

The parties twice amended the operating agreement. Those amendments resulted in the assignment of shares between the two Defendants and, additionally, an agreement that the corporate defendant would not provide services outside of a specified geographic area.

In 2014, the relationship ended and the parties signed an ownership redemption agreement. The Defendants sold back their stock to the Plaintiff and represented that there were no outstanding claims or lawsuits against the Illinois limited liability company. In reliance on these representations, the Plaintiff released the Defendants from liability for allegedly breaching the operating agreement. However, the ownership redemption agreement provided that should the representations made by the Defendants be proven false, the Plaintiff retained certain rights.

The Plaintiff sought to exercise those rights by filing a lawsuit in the circuit court, asserting that the Defendants had breached the parties’ contracts, seeking damages and a declaratory judgment that the Defendants were entitled to no further revenue from the operating agreement or ownership redemption agreement.

The Defendants moved to dismiss the complaint for lack of personal jurisdiction, improper venue, and for failure to state a claim, arguing: they resided in Illinois, not Florida; they did not maintain any office or place of business in Florida, nor transact any business here; and the complaint was based on a dispute arising out of the ownership redemption agreement and not the operating agreement.

After holding a hearing, the court granted the motion to dismiss. The court first determined that the ownership redemption agreement—not the operating agreement—was at issue. As a result of that determination, and because the ownership redemption agreement did not contain choice of law and venue provisions, the court concluded Florida courts lacked personal jurisdiction over the Defendants. The court also held that, even if the choice of law and venue provisions from the operating agreement applied, the Defendants did not have sufficient minimum contacts with Florida to support exercising personal jurisdiction over them.

After the court denied rehearing, the Plaintiff appealed the court’s order.

Analysis

We review a circuit court’s order on a motion to dismiss for lack of personal jurisdiction de novo. Hamilton v. Hamilton, 142 So.3d 969, 971 (Fla. 4th DCA 2014) (citations omitted).

The Plaintiff raises two issues on appeal. First, the Plaintiff argues the circuit court erred in its determination that the cause of action was based only upon the ownership redemption agreement, which did not contain a forum selection clause and choice of law provision, as opposed to the operating agreement, which contained both provisions. Second, the Plaintiff argues the court misinterpreted our decision in Hamilton, and applied a minimum contacts test beyond what is required by statute or the United States Constitution. We agree with the Plaintiff on both issues.

It is first necessary to determine which agreement, or agreements, are at issue in the lawsuit. If the complaint was based exclusively on the ownership redemption agreement, as argued by the Defendants and accepted by the circuit court, the choice of law and venue provisions are not at issue and the jurisdictional analysis would be based upon the traditional minimum contacts test set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). However, if the operating agreement was at issue in the complaint, the choice of law and venue, provisions are at issue, and jurisdiction must be analyzed.under sections 685.101 and 685.102, Florida Statutes (2015).

We conclude that the Plaintiffs complaint was based upon both the operating agreement and the ownership redemption agreement as the latter would not exist but for the former. Furthermore, the-ownership redemption agreement would not exist but for the now-severed business relationship between the parties, which was created by the operating agreement. Therefore, the operating agreement cannot be ignored when conducting the jurisdictional analysis.

The First District addressed a similar issue in an appeal relating to personal jurisdiction and reached the same conclusion. See Unison Inv. Ltd. P’ship v. Unison Indus. Ltd. P’ship, 633 So.2d 1165 (Fla. 1st DCA 1994). In Unison, the defendant argued that the dispute related exclusively to a redemption agreement and not the underlying business venture in Florida. Id. at 1166. The court rejected this argument, stating that the redemption agreement “should not be viewed solely unto itself apart from the business purpose which it served.” Id. The court concluded that the “agreement had its origin in and its purpose was related to the parties’ business venture” and that the “action on the agreement' should thus be viewed as one which arises from the business venture which was the predicate for the agreement.” Id. We conclude the same applies here, and at issue in the present case are both the operating agreement and the redemption agreement.

Next, we must determine whether the choice of law, venue, and personal jurisdiction waiver provisions in the operating agreement are sufficient to subject the Defendants to the personal jurisdiction of the courts of Florida.

The circuit court accepted the Defendants’ argument that, notwithstanding the waiver and consent provisions in the operating agreement, the Plaintiff was still required to separately- satisfy the minimum contacts test set forth by the United States Supreme Court in International Shoe. It is always true that a defendant must have minimum contacts with a forum state, in order, to satisfy due process and for the forum state’s courts to have personal jurisdiction over the defendant. However, when authorized by statute, a party’s informed .consent to personal jurisdiction can satisfy the requirements set forth in International Shoe and its progeny.

Moreover, a minimum contacts analysis in the commercial context requires a different approach. The Supreme Court has explained that “in the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular jurisdiction. Where such forum-selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal citations omitted).

Notwithstanding its. constitutionality, there was a time when Florida did not authorize the exercise of jurisdiction based upon consent alone. In 1987, the Florida Supreme Court held “that a,forum selection clause, designating Florida as the forum, cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant.” McRae v. J.D./M.D., Inc., 511 So.2d 540, 542 (Fla. 1987). The court noted that “the legislature has set forth in our long arm statute the policy of this state concerning when Florida courts can exercise in per-sonam jurisdiction over non-resident defendants” and, at that time, “conspicuously absent from the long arm statute [was] any provision for submission to in person-am jurisdiction merely by contractual agreement.” Id. at 543.

Such a provision is no longer conspicuously absent. As we noted in Hamilton, after McRae was decided, the legislature enacted sections 685.101 and 685.102, Florida Statutes, which allow Florida courts to exercise personal jurisdiction in certain circumstances not otherwise provided for under Florida’s long-arm statute. Hamilton, 142 So.3d at 971. When sections 685.101 and 685.102 are satisfied, personal jurisdiction may be exercised and the courts may dispense with the more traditional minimum contacts analysis. Medytox Diagnostics, Inc. v. Samuels, No. 14-CIV-20719, 2014 WL 12606310, at *5 (S.D. Fla. July 18, 2014) (citations omitted).

In other words, sections 685.101 and 685.102 allow parties to confer jurisdiction on the courts of Florida by contract alone if certain requirements are met. In Jetbroadband WV, LLC v. MasTec North America, Inc., 13 So.3d 159, 162 (Fla. 3d DCA 2009), the Third District identified these requirements as five jurisdictional factors. We have since applied these factors in Hamilton.

Based upon the plain language of the statutes and relevant case law, in order for a Florida court to exercise personal jurisdiction over a non-resident pursuant to sections 685.101 and 685.102, the contract must:

(1) Include a choice of law provision designating Florida law as the governing law, in whole or in part;
(2) Include a provision whereby the nonresident agrees to submit to the jurisdiction of the courts of Florida;
(3)Involve consideration of not less than $250,000 or relate to an obligation arising out of a transaction involving in the aggregate, not less than $250,000;
(4) Not violate the United States Constitution; and
(5) Either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under the laws of Florida.

See §§ 685.101, .102, Fla. Stat. (2015); Hamilton, 142 So.3d at 971-72.

In this case, the operating agreement satisfied all five jurisdictional factors. The first is satisfied because the contract included a choice of law provision designating Florida law as the-governing law. The second was clearly met as the contract not only had a venue provision designating Florida as the mandatory venue for any disputes relating to the relationship, but also had a specific clause acknowledging that all parties agreed to be subject to .the personal jurisdiction of the Florida courts. Additionally, the fourth and fifth, factors were satisfied, as there is no dispute that the contract did not violate the United States Constitution and that it bore a relationship to Florida.

The third factor is the focus of the Defendants’ argument. They argue that the contract did not involve sufficient consideration, and that a claim for damages cannot satisfy this requirement; that is, consideration is determined at the time the contract was formed and damages are not part of that calculation. In support of this argument, the Defendants reference the parties’ initial capital contributions, which totaled only $60,000.

However, calculating consideration under this factor is not as limited as the Defendants imply. The statutory requirement of $250,000 is satisfied when the contract is “in consideration of or relating to any obligation arising out of a transaction involving in the aggregate not less than $250,000.” § 685.101(1), Fla. Stat. (2015). As one court noted, “even if the parties to an agreement do not exchange at least $250,000, section 685.101 may still apply if, an aggregate of more than $250,000 arises from transactions related to the contract.” Upofloor Americas, Inc. v. S Squared Sustainable Surfaces, LLC, 616CV1790RL37DCI, 2016 WL 5933422, at *6 (M.D. Fla. Oct. 12, 2016). On its face, the statute provides that the $250,000 threshold may be satisfied by consideration on the face of the contract and from transactions arising from the contract. Elandia Intern., Inc. v. Ah Koy, 690 F.Supp.2d 1317, 1335 (S.D. Fla. 2010) (“[T]he drafters of the statute clearly provided that a transaction’s cash consideration is not the only means of satisfying the $250,000 threshold by including the ‘or relating to any obligation’ language.”). In this case, the Plaintiff presented unrefuted evidence that the operating agreement satisfied that jurisdictional threshold.

Conclusion

The Plaintiffs complaint satisfied the requirements of sections 685.101 and 685.102, Florida Statutes (2015). Therefore, the court should have dispensed with the traditional minimum contacts analysis and exercised personal jurisdiction over the Defendants. The court’s order dismissing the Plaintiffs complaint for lack of personal jurisdiction is reversed.

Reversed and remanded for further proceedings.

May and Klingensmith, JJ., concur.


author: ROTHENBERG, C.J.

text:
    YELLOW CAB COMPANY, Appellant, v. Calvina EWING, a Minor, BY AND THROUGH her Mother and Next Friend, Tonya JONES, Appellee.
    No. 3D16-969
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2017
    Rehearing Denied July 18, 2017
    Michael S. Kaufman, for appellant.

      Rosenthal Law Group, and Alex P. Ro-senthal and Rhiannon Sforza-Flick (Weston), for appellee.
    Before ROTHENBERG, C.J., and LAGOA and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

The defendant below, Yellow Cab Company, appeals from an amended sanctions judgment entered in favor of the plaintiff, Calvina Ewing. Because Yellow Cab Company’s notice of appeal was not timely filed, we dismiss the appeal for lack of jurisdiction.

Whether Yellow Cab Company’s appeal was timely filed depends on whether the amendment of the sanctions judgment was material. If the amendment was material, the time to file an appeal began to run on the date the amended sanctions judgment was rendered, not on the date the initial sanctions judgment was rendered, and therefore, the appeal would be timely filed. However, if the amendment was not material, the time to file the appeal began to run on the rendition of the initial sanctions judgment, and therefore, the appeal would be untimely filed. See St. Moritz Hotel v. Daughtry, 249 So.2d 27, 28 (Fla. 1971) (“An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. But where the modification or amendment materially changes the original order or judgment, the limitation period is said to run from the time of such modification or amendment.”); Rice v. Freeman, 939 So.2d 1144, 1146 (Fla. 3d DCA 2006) (“Florida follows the majority rule that, where a judgment is amended in a material respect, the appeal time runs from the date of the amendment, provided the amendment is material, not minor or formal.”) (quoting DeGale v. Krongold, Bass & Todd, 773 So.2d 630, 631-32 (Fla. 3d DCA 2000)).

The record reflects that the final judgment and the sanctions judgment in the instant case incorrectly referred to the defendant as Yellow Cab, Inc., rather than Yellow Cab Company as set forth in the complaint and the motion to dismiss the complaint. The trial court therefore amended the sanctions judgment and the final judgment to reflect the correct name of the defendant, Yellow Cab Company, as reflected in the plaintiffs complaint and confirmed by Yellow Cab Company in its motion to dismiss the complaint.

In DeGale, this Court addressed a similar situation and concluded that, because the amended final judgment was entered to reflect the correct spelling of a party’s name, “[t]he effect of the amendment was to correct mere clerical errors, which had no impact on the rights of the parties or the finality of the trial court’s original final summary judgment.” Thus, this Court found that the amendment was not material, and therefore, the time for filing the appeal began to run when the initial final judgment was rendered, not when the amended final judgment was rendered. Accordingly, the appeal was dismissed as untimely filed.

As reflected above, the situation in this case is similar to the situation in DeGale— a judgment was amended to reflect the correct name of a party as properly stated in both the complaint and in the motion to dismiss. Thus, the amendment to the sanctions judgment is not material because it merely corrects clerical errors, and because the time for filing the appeal began to run in June 2014, when the initial sanctions judgment was rendered, the appeal in the instant case was untimely filed.

Appeal dismissed.


text:
    Wilfredo CARDENAS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-886
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2017
    Wilfredo Cardenas, in proper person.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for respondent.
    Before LOGUE, SCALES and LUCK, JJ.
   PER CURIAM.

On April 21, 2017, Wilfredo Cardenas filed a petition for writ of habeas corpus with this Court seeking a belated appeal. In 2014, Cardenas accepted a plea' agreement in which he pled guilty to second degree murder. The trial court sentenced Cardenas to eighteen years in prison, followed by three years of probation.

In his petition seeking a belated appeal, Cardenas asserts that, at the conclusion of his sentencing hearing, he “requested defense counsel to file a Notice of Appeal in behalf of the trial court’s order denying Defendant’s motion to suppress.” Cardenas’s defense counsel did not file a notice of appeal. The record reflects that there is no trial court order denying a motion to suppress.

We ordered the State to file a response wherein the State advised the. Court that it contacted Cardenas’s defense counsel who maintained that Cardenas had not requested that he file a notice of appeal. The State incorporated an email exchange with defense counsel as an exhibit to its response. Accordingly, the State has raised a good faith basis to dispute Cardenas’s claim that he requested his counsel to appeal the trial court’s denial of his alleged motion to suppress. Parrish v. State, 201 So.3d 145, 145-46 (Fla. 3d DCA 2016).

We appoint as á commissioner, Judge Monica Gordo (the trial judge below), to conduct an evidentiary hearing and determine the limited, disputed fact on which the instant petition is based: whether Cardenas instructed his defense counsel to file a notice of appeal. Id. at 146. In order to allow Judge Gordo the opportunity to conduct .an evidentiary hearing, make the required determination, and transmit a report of such determination to this Court, the proceedings of the instant petition shall be held in abeyance for sixty days from the date of this order.

Commissioner appointed; petition held in abeyance.

      . On March 30, 2015, Cardenas filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. This motion raised issues not raised here. The trial court denied Cardenas’s motion, We affirmed in Cardenas v. State, 208 So.3d 712 (Fla. 3d DCA 2016) (table).

      . The record reflects that Cardenas did file a motion to .dismiss, This motion was withdrawn with the plea agreement, and the trial court advised Cardenas accordingly,


text:
    Yves Jean Jacques MILORD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3422
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Rehearing Denied August 17, 2017
    Yves ,J. Milord, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Yves Jean Jacques Milord appeals the trial court’s dismissal of his petition for writ of habeas corpus. We affirm.

In his petition, Milord challenged his convictions, arguing he was wrongfully convicted based on a fatally defective arrest warrant and- charging information. The trial court dismissed Milord’s habeas petition, determining that Milord should have filed the petition in Hardee County, where he was incarcerated at the time, and not in Orange County where he was convicted. This was error. When, as here, a petition for writ of habeas corpus attacks the validity of the conviction or issues related to the trial court proceedings, it must be brought in the circuit court of the county that rendered the judgment of conviction. Whitfield v. Dep’t of Corr., 202 So.3d 116, 117 (Fla. 5th DCA 2016); Gisi v. State, 119 So.3d 534, 535 (Fla. 5th DCA 2013).

Although the trial court dismissed the petition on erroneous grounds, dismissal was still appropriate. See Whitfield, 202 So.3d at 117 (“A conclusion or decision of a trial court will generally be affirmed, even when based on erroneous reasoning, if the evidence or an alternative theory supports it.” (quoting Caso v. State, 524 So.2d 422, 424 (Fla. 1988))). Milord is not entitled to habeas corpus relief because his claims are collaterally attacking his conviction, and therefore, could have or should have been raised on direct appeal or in a timely Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. See Richardson v. State, 918 So.2d 999, 1002 (Fla. 5th DCA 2006) (“Since adoption of rule 3.850 and its predecessor, the courts have consistently held that it is inappropriate to collaterally attack a conviction through the process of habeas proceedings because such claims are cognizable under the rule.”); see also Baker v. State, 878 So.2d 1236, 1241 (Fla. 2004) (reiterating that remedy of habeas corpus is not available as substitute for postconviction relief under rule 3.850); Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987) (explaining that “habeas corpus is not a vehicle for obtaining a second appeal of issues which were raised, or should have been raised, on direct appeal or which were waived at trial”).

AFFIRMED.

SAWAYA, ORFINGER and TORPY, JJ., concur.

      . These issues would be procedurally barred, untimely, and successive even if considered as a rule 3.850 motion. See Fla. R. Crim. P. 3.850(b) & (h). Milord’s judgment and sentence became final on November 18, 2009, see Milord v. State, 20 So. 3d 862 (Fla. 5th DCA 2009), and therefore, his two-year filing window expired on November 18, 2011. See Fla. R. Crim. P. 3.850(b). Further, Milord previously filed a rule 3.850 motion, which was denied by the trial court and the denial was affirmed on appeal. Milord v. State, 145 So. 3d 862 (Fla. 5th DCA 2014).


text:
    Wade O. BROCKWAY, Jr., Appellant, v. STATE of Florida, Appellees.
    Case No. 5D16-3043
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 11, 2017
    Rehearing Denied August 25, 2017
    Wade O. Brockway, Jr., Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

SAWAYA, EVANDER, and BERGER, J.J., concur.


text:
    Allen PULLEN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3888
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Rehearing Denied August 17, 2017
    Allen Pullen, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney, Daytona Beach, for Respondent.
   PER CURIAM.

PETITION DENIED. See Barnett v. Antonacci, 122 So.3d 400, 404-05 (Fla. 4th DCA 2013).

EVANDER, EDWARDS, and EISNAUGLE, JJ., concur.


author: EMAS, J.

text:
    Clarence MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1186
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

Clarence Moore appeals from a summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On appeal, Moore asserts that the record establishes that trial counsel failed to object to improper comments made by the State during closing argument, and further asserts that he was entitled to an evidentiary hearing.

The analysis of a claim of actual ineffective assistance of trial counsel necessarily begins with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim under Strickland requires the defendant to establish two prongs: constitutionally deficient performance and actual prejudice. As the Strickland Court elaborated:

First, the defendant must show that counsel’s performance was ' deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction.. .resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052.

In assessing the deficient performance prong, the relevant question is: Did counsel’s performance fall below an objective standard of reasonableness, when measured under prevailing professional norms? Id. at 688, 104 S.Ct. 2052. In assessing the actual prejudice prong, the relevant question is whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is “a probability sufficient to undermine confidence in the outcome” of the proceeding. Id.

Upon our review of the record, and in the context of the evidence and arguments presented at trial, we find that the comments made in closing argument were not improper. It is axiomatic that trial counsel cannot be deemed ineffective for failing to raise a meritless objection. Teffe-teller v. Dugger, 734 So.2d 1009, 1023 (Fla. 1999).

Even if these comments could be characterized as improper, Moore's claim of ineffective assistance of counsel would still fail because he cannot meet the prejudice prong of Strickland. The comments were brief and isolated, any arguable prejudice was slight, and was certainly insufficient to undermine confidence in the outcome of the trial. Had counsel objected to these comments (and the trial court deemed them improper) the objections would have been sustained and a curative instruction given. Thus, there is no reasonable probability that, but for counsel’s failure to object, the outcome of the proceeding would have been different or that “trial counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable;” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. We therefore affirm the trial court’s order summarily denying Moore’s motion for postconviction relief.

Affirmed.

      . On appeal, Moore asserts the State made four improper (and unobjected-to) comments in the course of closing argument. However, only two of those four comments were raised in the operative motion for postconviction relief. Because the remaining two grounds were neither considered nor ruled on by the trial court, they are not preserved for appellate review. See § 924.041(3), Fla. Stat. (2016) (providing; "An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error”); Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (holding; "As a general matter, a reviewing court will not consider points raised for the first time on appeal,”). Nevertheless, even if we considered all four comments raised in this appeal, our determination would remain the same..