source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SURTERRA FLORIDA, LLC., Alpha Foliage, Inc. and Redland Nursery, Inc., Appellants, v. FLORIDA DEPARTMENT OF HEALTH and Michael Barfield, Appellees.
    CASE NO. 1D16-4091
    District Court of Appeal of Florida, First District.
    Opinion filed June 9, 2017.

      John L. Wharton and Brittany 0. Fink-beiner of Dean, Mead & Dunbar, Tallahassee, for Appellants.
    Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Appellee Florida Department of Health; Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellee Michael Bar-field.
   PER CURIAM.

Appellants challenge an order finding ' that the identities and related information of their consultants, investors, and partners do not meet the definition of a trade secret under Florida law. We affirm the trial court’s findings regarding investors and partners because, appellants did not prove that the names and related information of their individual investors and partners are trade secrets. However, we reverse the trial court’s findings, regarding appellants’ consultants and remand,to. the trial court to make more specific findings as to whether the particular identities and related information of appellants’ consultants meet the requirements of section 812.081(l)(c), Florida Statutes (2015).

I. Facts

In 2015, appellants submitted applications to the Florida Department of Health (Department) for licenses to' operate dispensing organizations for “low<t-THC cannabis” or “medical cannabis” pursuant to section 381.986(5)(b), Florida Statutes (2015). Appellants indicated that portions of their applications contained confidential trade secrets ..pursuant to section 812.081, Florida Statutes (2015), and were exempt from disclosure as public records under section 815.045, Florida Statutes (2015). The Department reviewed the applications and appellants’ written materials supporting their claimed trade secret exemptions and ultimately found that some portions of the applications were trade secrets under Florida law.

Appellee Michael Barfield submitted a public records request to the Department for the files related to appellants’ applications. The Department declined to release to Mr. Barfield appellants’ unredacted applications pursuant to section 815.045 but told him that he could retrieve the redacted versions of the applications on its website. Subsequently, Mr. Barfield filed suit for a declaratory judgment that the exemption asserted by the Department does not apply to the redacted portions of appellants’ applications.

The trial court held a hearing to examine the documents and to determine whether they contained trade secrets. At the hearing, Robert Jacob Bergmann, the Chief Executive Officer, of Surterra Florida, LLC, testified about the alleged trade secret information. Mr. Barfield and his counsel were permitted to hear only a portion of Mr. Bergmann’s testimony.

Subsequently, the trial court found that appellants’ purported trade' secret information falls into the'following five categories: (1) investor, consultant, and partner identity; (2) financial structure; (3) security processes and building designs; (4) nursery operations, scientific processes, and business plans; and (5) administrative materials and standard operating procedures. As to the latter four categories of appellants’ information, the trial court concluded that they are trade secrets and exempt from disclosure under the Florida public records law. These findings have not been appealed to this Court and are therefore not at issue. As to the first category of appellant’s information, however, the trial court found that the identities and related information of appellants’ investors, consultants, and partners do not meet the trade secret definition under section 812.081(l)(c). Appellants now seek reversal on appeal as to the court’s findings regarding the first category of information.

II. Analysis

Florida’s broad public records policy provides “that all state, county, and municipal records are open for personal inspection and copying by' any person.” § 119.01(1), Fla. Stat. (2015); see also Art. I, § 24(a), Flá. Const. (“Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, office?, or employee of the state, or persons acting on their behalf .... ”). However, the Legislature has made some exemptions to the public recprds law. One such exemption is that of trade secrets. See § 815.045, Fla. Stat. (2015) (“The Legislature finds that it is a public necessity that trade secret information ... be expressly made confidential and exempt from the public records law because it is a felony to disclose such records.”).

Chapter 381, Florida Statutes (2015), the chapter under which appellants submitted their applications to become dispensing organizations, reflects’ both Florida’s public records policy and the trade secret exemption. Section 381.83(1), Florida Statutes (2015), states that “[r]ecords, reports, or information obtained from any person under this chapter ... shall be available to the public, except upon a showing satisfactory to the department ... that such records, reports, or information, or a particular part thereof, contains trade secrets as defined in s. 812.081(l)(e).”

Section 812.081 (l)(c),, Florida Statutes (2015), defines the term “trade secret” as:

[T]he whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation, of a business and which pi’ovides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it, “Trade secret” includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter, pertains, a trade secret is considered to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4.Of advantage, to the business, or providing an . opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

We apply the competent, substantial evidence standard of. review to a trial court’s factual determination that documents do or 'do not contain trade secrets. See Sepro Corp. v. Dep’t of Envtl. Prot., 839 So.2d 781, 785 (Fla. 1st DCA 2003) (holding that the trial court’s “finding [that documents at issue -contained < trade secrets] necessarily rests on factual determinations that are assailable on appeal only if unsupported by competent, substantial evidence”). At issue in this case is whether appellants proved that the identities and related information of their investors, consultants, and partners are trade secrets.

In the hearing before the trial court, Mr. Bergmann testified generally that he and appellants considered all of the redacted information in their applications to be trade secrets. Likewise, he made broad assertions that the identities and related information of appellants investors and partners met the definition of a trade secret under section 812.081(l)(c). However, appellants did not present evidence showing that the identities and related information of the specific investors and partners at issue established each of the requirements found in section 812.081(l)(c).

Conversely, Mr. Bergmann testified why he believed particular consultants’ identities and related information met the trade secret definition based on the information they supplied to appellants. He presented evidence that at least some of the consultants’ identities and related information concerned the production process, which met the definition of a trade secret. Further, appellants’ consultants differed from their investors and partners.

A “list of suppliers” can qualify as a trade secret according to section 812.081(l)(c). Consultants in the low-THC cannabis and medical cannabis industry can supply organizations with valuable information about how to cultivate, process, transport, and dispense cannabis. A list of such consultants might qualify as a list of suppliers considered to be: secret; of value; for use or in use by the business; and of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. Therefore, such a list may qualify as a trade secret under section 812,081(l)(c).

However, the trial court did not make any findings as to whether it accepted Mr. Bergmann’s testimony as true and whether appellants proved that their list of consultants met each of the trade secret requirements in section 812.081(l)(c). Therefore, we reverse the court’s general finding that the list of identities and related information of appellants’ consultants is not a trade secret. We do not rule on whether appellants proved that the identities and related information of their consultants are in fact trade secrets. That determination should be made by the trial court. Rather, we instruct the trial court to make specific findings as to whether the list of appellants’ consultants meets each of the requirements found in Florida’s trade secret definition. Because appellants did not prove that the names and related information of their individual investors and partners are trade secrets, we affirm the trial court’s finding that they do not constitute trade secrets.

AFFIRMED in part; REVERSED in part; REMANDED.

WOLF and WETHERELL, JJ., and LESTER, DON H., ASSOCIATE JUDGE, CONCUR.

      . Appellants Alpha Foliage, Inc., and Redland Nursery, Inc., are nurseries that have applied for licenses to operate dispensing organizations in the State of Florida, Appellant Surter-ra Florida, LLC, is the contractual agent of Alpha Foliage, Inc., and Redland Nursery, Inc. For the purposes of this opinion, the three entities will be referred to jointly as "appellants.”

      . We do not address the propriety of the ex parte portion of this procedm'e because it was neither objected to nor raised as an issue on appeal in this case.


author: MORRIS, Judge.

text:
    Robin Quintin PARKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-67
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017

      Robin Quintín Parks, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   EN BANC

MORRIS, Judge.

Robin Quintín Parks appeals the order denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse because the postconviction court erroneously found that Parks’ challenge to a sentence beyond the maximum allowable for his offenses, which was imposed as part of a negotiated plea agreement, could only be brought under Florida Rule of Criminal Procedure 3.850.

Parks entered a negotiated plea to three counts of the lesser offenses of attempted second-degree murder with a firearm, first-degree felonies, in exchange for concurrent sentences of fifteen years’ imprisonment with a ten-year mandatory minimum followed by life probation. In his motion to correct illegal sentence, he argued that by the addition of life probation, his sentences exceeded the statutory maximum and were illegal. See Clussman v. State, 89 So.3d 1093, 1094 (Fla. 1st DCA 2012) (reversing for the striking of the probationary terms of Clussman’s sentences because when they were added to her terms of imprisonment, her sentences exceeded the statutory maximum). Parks correctly noted that a sentence may be illegal even if a defendant agreed to it as part of a negotiated plea. See McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006) (“A trial court cannot impose an illegal sentence even pursuant to a plea bargain.” (quoting Ferguson v. State, 804 So.2d 411, 412 (Fla. 4th DCA 2001))).

Citing Dominguez v. State, 98 So.3d 198, 200 (Fla. 2d DCA 2012), and Nedd v. State, 855 So.2d 664, 665 (Fla. 2d DCA 2003), the postconviction court found that Parks’ motion was more properly considered under rule 3.850 because Parks had to first move to withdraw his plea. The court then denied the motion as time-barred under rule 3.850 because it was filed over two years after Parks’ judgment and sentences became final. See Fla. R. Crim. P. 3.850(b). But Dominguez and Nedd are distinguishable from the facts of this case; we write to explain that distinction and, to the extent necessary, recede from them.

Nedd entered a plea to a lesser charge—trafficking in fourteen to twenty-eight grams of heroin—in exchange for a mandatory minimum sentence of fifteen years' imprisonment. Nedd, 855 So.2d at 665. Nedd argued in his rule 3.800(a) motion that his sentence was illegal because this <?ourt held the statute underlying his sentence unconstitutional in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

This court held that Nedd’s motion

actually challeng[ed] the terms of a plea agreement and, thus, the resulting convictions. Because a plea withdrawal is a potential consequence in this case, Nedd must seek relief under rule 3.850. In that proceeding, the State will have the option to either agree to a resentencing or withdraw from the plea agreement and proceed to trial on the original charges.

855 So.2d at 665 (citing Bruno v. State, 837 So.2d 521, 523 (Fla. 1st DCA 2003)).

Dominguez also entered a plea to a lesser offense-felony battery under section 784.03, Florida Statutes (2009)—in exchange for a sentence of five years’ imprisonment as a. prison releasee reoffender (PRR). Dominguez, 98 So.3d at 200. He subsequently filed a rule 3.800(a) motion, arguing that he was illegally sentenced as a PRR because felony battery under, section 784.03(2), which reclassifies simple battery to a third-degree felony upon a second battery conviction, did not qualify for PRR sentencing. Noting that an illegal sentence may not be imposed pursuant to a plea agreement, this court followed Nedd and reversed and remanded for the post-conviction court to treat Dominguez’s motion as if it had been filed under rule 3.850. Id. at 200-01. In both Dominguez and Nedd, sufficient time remained for the defendants to move to vacate their sentences under rule 3.850.

In contrast to Dominguez and Nedd, it appears that Parks is entitled to relief under another set of cases, Armstrong v. State, 145 So.3d 952 (Fla. 2d DCA 2014), McDuffie, 946 So.2d 99, and Lang v. State, 931 So.2d 922 (Fla. 2d DCA 2005). The State agrees that these three cases are applicable and suggests that Dominguez and Nedd are procedurally inconsistent with them.

In McDuffie, McDuffie entered into a negotiated plea to a lesser offense—the life felony of second-degree murder with a firearm—in exchange for a sentence of forty-five years’ imprisonment. 946 So.2d at 99. In his rule 3.800(a) motion, McDuf-fie argued that his sentence was illegal because the sentencing options for a life felony at that time were either life or a maximum of not more than forty years’ imprisonment. ..Id. at 99-100. Noting that even under a plea bargain a court may not impose an illegal sentence, this court reversed the postconviction court’s order denying McDuffie’s motion and remanded, stating that McDuffie could only be resen-tenced within the statutory maximum of forty years with the State’s agreement. Id. at 100. Otherwise, the court had to allow McDuffie to withdraw his plea. Id.

This court held similarly in Lang. Lang entered into a negotiated plea to the reduced charge ■ of aggravated battery in exchange for a sentence of 143 months’ imprisonment followed by ten years’ probation. 931 So.2d at 922. In a rule '3.800(a) motion, Lang argued that his sentence was illegal because it exceeded the statutory maximum of fifteen years for a second-degree felony. This court reversed the postconviction court’s order denying Lang’s motion and remanded for resentencing, stating that if the State did not agree to a sentence within the statutory maximum, the court had to allow Lang to withdraw his plea. Id.

In Armstrong, the postconviction court failed to address Armstrong’s claim that his sentence was illegal because it exceeded the statutory maximum. 145 So.3d 952. This court noted that Armstrong’s sentences appeared to have been imposed pursuant to a negotiated plea agreement. Id. We held that if the postconviction court found his sentences to be illegal on remand, the court could resentence Armstrong within the statutory maximum for each count only with the State’s agreement. Id. Otherwise, the postconviction court would have to allow Armstrong to withdraw his plea. Id.

As Armstrong, McDuffie, and Lang demonstrate, a sentence that exceeds the statutory maximum may not be imposed even pursuant to a negotiated plea agreement, and it may be challenged at any time under rule 3.800(a). Accordingly, this court recedes from Dominguez and Nedd to the extent that they can be read as requiring a challenge to a sentence that was imposed pursuant to a plea agreement and exceeds the statutory maximum to be brought only under rule 3.850.

Parks correctly challenged his three sentences in a motion filed under rule 3.800(a) because fifteen years’ imprisonment followed by life probation exceeds the statutory maximum of thirty years’ imprisonment for his first-degree felony convictions. See § 775.082(3)(b), Fla. Stat. (2010). We reverse and remand for the postconviction court to resentence Parks. If the State does not agree to a sentence within the statutory maximum, the court must allow Parks to withdraw his plea.

Reversed and remanded for resentenc-ing.

VILLANTI, C.J., and NORTHCUTT, CASANUEVA, SILBERMAN, WALLACE, LaROSE, KHOUZAM, CRENSHAW, BLACK, SLEET, LUCAS, SALARIO, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.

KELLY, J,, Concurs in result.

      . §§ 782.04(2), 777.04(4)(c), 775.087(l)(b), Fla. Stat. (2010). Parks also pleaded to a fourth count of attempted second-degree murder with a weapon, and he was sentenced to fifteen years in prison followed by fifteen years' probation on that count. Although Parks challenged this fourth sentence, we conclude that it is legal because it is within the statutory maximum for a first-degree felony. § 775.082(3)(b).

      . McDuffie committed his life felony prior to' July 1, 199S. We note that defendants who commit life felonies after July 1, 1995, may be sentenced to a term of imprisonment for life or for a term of years not exceeding life imprisonment. See § 775.082(3)(a)(3), Fla. Stat, (1997),

      . Other Florida cases in which relief has been granted under rule 3.800(a) from illegal sentences imposed pursuant to plea agreements include Gamez v. State, 944 So.2d 1253 (Fla. 2d DCA 2006), Kelly v. State, 816 So.2d 1221 (Fla. 2d DCA 2002), Howell v. State, 764 So.2d 780 (Fla. 2d DCA 2000), Adams v. State, 901 So.2d 275 (Fla. 5th DCA 2005), Taylor v. State, 899 So.2d 1191 (Fla. 1st DCA 2005), Gifford v. State, 744 So.2d 1046 (Fla. 4th DCA 1999), and Ruiz v. State, 537 So.2d 682 (Fla. 3d DCA 1989).

      . We note that the plea form and the judgment incorrectly list the three offenses as "PBL” and that the plea and sentencing transcript indicate that the trial court believed that the three offenses were punishable by life. On remand, the trial court should take care to correctly list the degree of the offenses on the amended judgment form.


text:
    James E. LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-225
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017.

      James E. Lewis, pro se.
   PER CURIAM.

Affirmed. See § 775.084(1)(a)(2), Fla. Stat. (1995); State v. Matthews, 891 So.2d 479 (Fla. 2004); Robbins v. State, 816 So.2d 783 (Fla. 2d DCA 2002); Hurlburt v. State, 807 So.2d 687 (Fla. 2d DCA 2002); Cooper v. State, 902 So.2d 945 (Fla. 4th DCA 2005); Hepburn v. State, 778 So.2d 448 (Fla. 3d DCA 2001); Boyd v. State, 753 So.2d 692 (Fla. 4th DCA 2000); Figueroa v. State, 632 So.2d 195 (Fla. 3d DCA 1994).

WALLACE, LUCAS, and BADALAMENTI, JJ., Concur.


text:
    Sandro JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-299
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017.
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So.3d 258 (Fla. 2011); State v. King, 426 So.2d 12 (Fla. 1982); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Franke v. State, 997 So.2d 424 (Fla. 2d DCA 2008); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

WALLACE, LUCAS, and BADALAMENTI, JJ., Concur.


author: PER CURIAM. COHEN, C.J.,

text:
    Nichole VANGANSBEKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2688
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      James S. Purdy, Public Defender, and Sean K. Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Nicole Vangansbeke appeals the denial of her dispositive motion to suppress drugs and drug paraphernalia taken from her person during a traffic stop. The officers acquired reasonable suspicion to search the car in which Vangansbeke was traveling based on a canine alert to the presence of drugs inside the vehicle. The officers then acquired reasonable suspicion to search Vangansbeke based on her movements when exiting the vehicle, which suggested she was hiding contraband. Van-gansbeke argues the officers prolonged the stop beyond the time necessary to issue a traffic warning in order to perform the dog-sniff of the car. We disagree and affirm.

Vangansbeke was one of three passengers in a car that was pulled over for failure to yield at a stop sign. Because the officers who made the stop were part of a “tactical investigations unit,” their undercover vehicles did not have computers. As a result, the officers had to radio the vehicle’s information and the passengers’ names in to the dispatcher individually. The department also shared a single channel, meaning that the officers would have to wait for the dispatcher to process earlier requests from officers at other locations before the dispatcher would be able to process their request.

Ten minutes into the stop, after completing the background checks for the driver and Vangansbeke, the officers requested a canine unit. While one officer completed the background checks for the. two passengers in the backseat, the other officer radioed in the information for the vehicle and requested a citation number. Sixteen minutes into the stop, the officer received all of the information and began to write the citation. The canine arrived approximately nineteen minutes into the stop as the officer was writing the citation. The citation was still in the officer’s hand when the canine alerted to drugs in the car.

After the canine alerted the officérs to the presence of drugs, the passengers were ordered to exit the car. The unusual manner in which Vangansbeke adjusted her clothing as she exited the vehicle provided the officers with reasonable suspicion that she was hiding contraband. The officers searched Vangansbeke and found drugs and drug paraphernalia on her person. Vangansbeke moved to suppress the evidence, but the trial court denied the motion.

This Court reviews an order on a motion to suppress evidence under a mixed standard—deference is given to the trial court’s factual findings, which will be upheld .if supported by competent, substantial evidence, while the court’s legal determinations are reviewed de novo. Sowerby v. State, 73 So.3d 329, 331 (Fla. 5th DCA 2011). Both the United States and Florida Constitutions protect the right of the people to be free from unreasonable searches and seizures. Amend. IV, U.S. Const.; Art. 1, § 12, Fla. Const. The Florida Constitution is construed in conformity with United States Supreme Court precedent. Art. I, § 12, Fla. Const.

The U.S. Supreme Court has held that a dog-sniff conducted as part of an otherwise reasonable seizure does not violate the Fourth Amendment because the canine alerts only to the presence of contraband; because there is no legitimate privacy interest in possessing contraband, the dog-sniff does not implicate legitimate privacy interests. Illinois v. Caballes, 543 U.S. 405, 408-10, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A dog-sniff that , prolongs a traffic stop, on the other, hand, results in an unlawful seizure in violation of the Fourth Amendment absent reasonable suspicion to prolong the stop. Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). The duration of a traffic stop is limited to the “mission” of the stop—addressing the traffic violation and “related safety concerns.” Id. at 1614, The inquiry is whether the dog-sniff prolonged the stop beyond! the necessary time to'conduct the normal inquiries incident to á traffic stop—such as determining whether the driver and passengers have outstanding warrants—and to issue a traffic citation or warning.

Courts interpreting Rodriguez have emphasized the importance of conducting a detailed, minute-by-minute analysis of the stop to determine if the stop was prolonged. See, e.g., Underhill v. State, 197 So.3d 90, 92 (Fla. 4th DCA 2016). In'this case, the trial court found that the evidence did not support Vangansbeke’s argument that the officers intentionally and unnecessarily stalled the process of issuing a traffic warning.' There is substantial, competent evidence ‘to support that finding.

The encounter was recorded on one of the officer’s body cameras. The DVD created from the body camera demonstrates that the officers were diligent in executing the search and performing their duties. The officers asked for the passengers’ identification and immediately radioed the information in to the dispatcher. Running background checks on the vehicle, the driver, and the passengers are normal parts of a traffic stop and do not unreasonably prolong the stop. See Rodriguez, 135 S.Ct. at 1615. In addition, the entire investigation focused on the traffic infraction and related safety issues. The officer had not finished writing the traffic citation when the dog-sniff began. Cf. Jones v. State, 187 So.3d 346, 348 (Fla. 4th DCA 2016) (finding Fourth Amendment violation where officer abandoned traffic citation to conduct dog-sniff); Underhill, 197 So.3d at 92 (same). The only brief delay was for the officer who' made the stop to locate his citation book, which took one to two minutes.

The trial court’s order stated that if the officers prolonged the stop, it was only for a “de minimus” period of time. However, the U.S. Supreme Court and this Court, among others, have rejected a de minimus exception to the Fourth Amendment. See, e.g., Rodriguez, 135 S.Ct. at 1615-16; Whitfield v. State, 33 So.3d 787, 792 (Fla. 5th DCA 2010). Nonetheless, the subsequent findings and conclusions in the trial court’s order, supported by the images from the DVD, clarify that this “de mini-mus” comment was not the basis for the denial of Vangansbeke’s motion to suppress. The remainder of the order explains that the stop was not unnecessarily prolonged, even for a de minimus period.

We emphasize the unique circumstances of this case. The combination of four individuals in the vehicle, along with the officers’ lack of access to a computer, necessitated by the work of the tactical unit, resulted in an approximately twenty-minute delay from the initial stop to the beginning of the dog-sniff. Despite the length of the stop, the record shows that the officers were scrupulous in performing their duties and did not act to prolong the encounter. Accordingly, we affirm.

AFFIRMED,

SAWAYA and EDWARDS, JJ., concur.

COHEN, C.J.,.concurs, and concurs specially, with opinion.

COHEN, C.J.,

concurring specially.

I am in agreement with the majority opinion. I write separately to emphasize the importance of trial courts conducting a thorough, fact-intensive review of traffic stops to ensure that the principles of Rodriquez are honored. The nature of these stops, which often involve complicated, fact-specific determinations, makes it inappropriate to formulate a precise time limit for issuing a citation or warning. Yet open-ended standards can lead to abuse. Officers must not be allowed to unnecessarily prolong stops involving citizens suspected of nothing more than traffic violations.

      . Vangansbeke does not challenge the legality of the initial stop, the qualifications of the canine, or the reasonable suspicion to search her person.

      . The State below and on appeal has not argued the presence of reasonable suspicion to justify any prolonged seizure.

      . The computer-assisted dispatch times, relied on in part by the trial court, refer to the time that the dispatcher entered the information into the computer, not the actual timeline for the course of events in this case. As a result, the DVD of the officer’s body camera presents a more accurate picture of the time frame involved. This Court relied on the DVD in reviewing the trial court’s order.


author: COHEN, C.J.

text:
    Joshua WALKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4427
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      Joshua Walker, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela Koller, Assistant Attorney General, Daytona Beach, for Appel-lee.
   COHEN, C.J.

Joshua Walker appeals the summary denial of his rule 3.850 motion for postconviction relief. Fla. R. Crim. P. 3.850. We reverse as to grounds one and two of the motion because the postconviction court failed to attach records to its order that conclusively refute those grounds. We affirm as to ground three.

Walker was convicted of numerous offenses, including attempted first-degree murder, false imprisonment, burglary, aggravated battery, and attempted robbery. His convictions were affirmed on appeal. Walker v. State, 86 So.3d 1143 (Fla. 5th DCA 2012). Following his appeal, he moved to vacate his sentence under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (recognizing constitutional right to effective counsel). Walker alleged his counsel was ineffective for three reasons: 1) counsel failed to move to suppress both out-of-court and in-court identifications of him; 2) counsel incorrectly advised him that he should not testify; and 3) counsel failed to move to suppress evidence found at the crime scene. The postconviction court summarily denied each of the grounds raised.

To establish ineffective assistance of counsel, Walker must allege both deficient performance and prejudice to his right to a fair, reliable trial. See id. at 687, 104 S.Ct. 2052. Because Walker’s motion was summarily denied, we review the order de novo to determine whether the record conclusively refutes his claims or if his claims fail as a matter of law. See Harris v. State, 204 So.3d 973, 974 (Fla. 5th DCA 2016).

Walker alleges that his tidal counsel was ineffective for failing to move to suppress a photo lineup that was unnecessarily suggestive because Walker was the only man in the lineup with “extensive facial scarring.” The postconviction court denied the claim, finding that there was no reasonable probability that the motion to suppress the out-of-court identification would have been granted.

The test for suppressing an out-of-court or in-court identification is: 1) whether the State used an “unnecessarily suggestive procedure to obtain the out-of-court identification”; and 2) whether that procedure “gave rise to a substantial likelihood of irreparable misidentification.” Fitzpatrick v. State, 900 So.2d 495, 517-518 (Fla. 2005) (quoting Rimmer v. State, 825 So.2d 304, 316 (Fla. 2002)). A photo lineup may be unnecessarily suggestive if the defendant is the only person depicted with -a distinctive physical characteristic. See, e.g., State v. Dorsey, 5 So.3d 702, 705-06 (Fla. 2d DCA 2009) (denying certio-rari when the trial court found that the lineup was impermissibly suggestive because “out of the six African-American males depicted in the photo-pack, the Defendant was the ‘only one [having] distinct facial hair about the mouth’ ”).

The postconviction court’s order points out that the detective who created the lineup testified that the database does not have facial markings as a distinct, searcha-ble characteristic. Alternatively, the court found that even if the lineup was unnecessarily suggestive, there was not a substantial likelihood of irreparable misidentification because the victim testified that he got a good look at the assailant.

The record is clear that Walker was the only person in the lineup with extensive facial scarring or a blotchy complexion. The victim testified, “The blotches on the face, that’s how I could recognize him.” Nothing in the record attached to the postconviction court’s order refutes Walker’s claim that the lineup was unnecessarily suggestive. The court’s reasoning that the “lineup was' not suggestive because the detective who made it did the best he could with the database that he uses,” is hardly convincing. Simply because it may have been difficult or time-consuming using the current software to reproduce facial blotching and scarring does not mean that the procedure was not unnecessarily suggestive and that an objection would not have had a reasonable probability of success.

Finally, given that the victim testified that he saw the assailant in the backseat of his car through the rearview mirror, Walker had a plausible basis to argue he was misidentified. Thus, the record establishes that the suggestive procedure gave rise to a substantial likelihood of irreparable mis-identification. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We reverse the summary denial of this claim and remand for the postconviction court either to attach portions of the record, if any, that conclusively refute the claim or to hold an evidentiary hearing.

Next, Walker alleges that his trial counsel was ineffective for misadvising Walker not to testify. Walker alleged that “[c]ounsel told [him] that if he took the stand, the State would be able to present ■to the jury the details of his extensive criminal record.” Affirmative misadvice regarding impeachment with prior convictions is a cognizable postconviction claim. See Rodriguez v. State, 909 So.2d 955, 956 (Fla. 3d DCA 2005). Accordingly, we reverse this ground for the postconviction court to attach records conclusively refuting this claim or to hold an evidentiary hearing.

However, we affirm the postconviction court’s order as to Walker’s third ground. In this claim, Walker argues that his counsel was ineffective in failing to move .to suppress evidence of a wallet found at the scene of the crime. He argues that the evidence was inadmissible because it was not relevant to any fact in dispute. See § 90.401, Fla. Stat. (2010). The record demonstrates, however, that, the wallet was found on the ground at the crime scene and contained Walker’s identification. This fact certainly tends, to make it more likely that Walker was present during the robbery—which renders the evidence relevant. At trial, Walker raised this •same argument regarding his counsel’s failure to object to the wallet coming into evidence, and the trial court instructed Walker that there was no basis for an objection. We find no error in the postcon-viction court’s determination that Walker did not demonstrate ineffective assistance of counsel because there was no meritorious basis for suppression of the .evidence.

In sum, we affirm the denial of Walker’s motion as to ground three and reverse and remand for an evidentiary hearing, or to attach specific portions of the record réfut-ing his claims, on grounds one and two.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ORFINGER and BERGER, JJ., concur.

      . No adjudication was entered on the aggravated battery charge.

      . We note that the postconviction court attached nearly the entire trial transcript to the summary denial order. Rule 3.850 requires that the court attach only "a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief.” Fla. R. Crim. P. 3.850(f)(4) (emphasis added). The court's approach frustrates appellate review and can alone be grounds for reversal to attach specific records to the summary denial order. See Pullum v. State, 893 So.2d 627, 628-29 (Fla. 2d DCA 2005). Nonetheless, we considered the court's order and attachments.

      .At other times, Walker’s complexion was described as blotchy.


author: JAY, J.

text:
    Karen S. MCMAHAN, Petitioner, v. James F. MCMAHAN, Jr., Respondent.
    CASE NO. 1D17-155
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Reheating Denied August 10, 2017

      Andrew J. Decker, IV, of The Decker Law Firm, P.A., Lake City, for Petitioner.
    No appearance for Respondent.
   JAY, J.

In this dissolution of marriage action, the wife, Karen S. McMahan, filed a motion for leave to take the deposition of the husband, James F. McMahan, Jr., and requested that the court permit her to personally attend the husband’s deposition. At the time the motion was filed, the husband was incarcerated in the Baker County Jail. The wife’s motion was advanced pursuant to the last sentence of Florida Rule of Civil Procedure 1.310(a) and specifically alleged that jail officials had “indicated” that she would not be allowed to attend the deposition. While the trial court granted her motion for leave to take the husband’s deposition, the court denied the wife’s request to personally attend. The court permitted the wife “to appear [at the deposition] by phone.”

The wife also moved to continue the final hearing on her petition for dissolution of marriage and to reset the applicable pre-trial deadlines. The trial court denied her motion for continuance. The wife filed the instant petition for writ of certiorari to review the rulings on her motion for leave to take the husband’s deposition and motion for continuance.

In determining whether we may properly invoke our certiorari jurisdiction, the analysis employed in Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So.3d 450 (Fla. 2012), controls. In that case, the Florida Supreme Court advised district courts of the “judicial policy” informing the jurisdictional analysis:

“[C]ommon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987); see also Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000); Jaye v. Royal Saxon, Inc., 720 So.2d 214, 214-15 (Fla. 1998).... “A non-final order for which no appeal is provided by [Florida] Rule [of Appellate Procedure]. 9.130 is reviewable by petition for certio-rari only in limited circumstances.” Martin-Johnson, Inc., 509 So.2d at 1099; see also Brooks v. Owens, 97 So.2d 693, 695 (Fla. 1957).... Limited certiorari review is based upon the rationale that “piecemeal review of nonfinal trial court orders will impede the orderly administration of justice and serve only to delay and harass.” Jaye, 720 So.2d at 215.

Id. at 454 (ellipses and emphasis in original) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004)). To be entitled to certiorari review, “[t]he petitioning party must demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’.” |d. (bracketed comma provided in Bd. of Trs.) (quoting Reeves, 889 So.2d at 822 (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002))). “ ‘The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.’ ” Id. (quoting Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011)); see also Jaye, 720 So.2d at 215 (holding that finding the petitioning party has “suffered an irreparable harm that cannot be remedied on direct appeal” is a “condition precedent to invoking a district, court’s certiorari jurisdiction”); Agency for Health Care Admin. v. S. Broward Hosp. Dist., 206 So.3d 826, 828 (Fla. 1st DCA 2016) (same).

Addressing, first, the trial court’s order on the wife’s motion to appear at the husband’s deposition, there is support for the conclusion that a trial court’s decision to prohibit a party’s personal attendance at the taking of another party’s deposition can cause irreparable harm. See Ferrigno v. Yoder, 495 So.2d 886, 887 (Fla. 2d DCA 1986). Specifically, Ferrigno recognized that once a deposition has taken place outside of the presence of the aggrieved party, the opportunity to cure the purported error—i.e., the attendance at the other party’s deposition—“will have passed.” Id. Consistent with this reasoning, the wife’s petition adequately, alleges irreparable harm because once the husband’s deposition occurs outside of her presence, the wife will have suffered an injury—her physical absence from the deposition—that could not be adequately corrected on .a post-judgment appeal. See also Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 460 (Fla. 1st DCA 2006) (“[W]e agree with the Fifth District’s conclusion in Lunceford v. Florida Central Railroad Co., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999), that such an order will cause irreparable harm because it would be virtually impossible in an appeal following entry of a final order to demonstrate how the absence of the requested third party affected the outcome of the examination.”).

As to the remaining element of our certiorari analysis, the wife has thé burden of demonstrating that the trial court’s order constitutes a departure from the essential requirements of the law. S. Broward Hosp. Dist., 206 So.3d at 827-28. “A departure from the essential requirements of the law ... is something more than a simple legal error.” Fassy v. Crowley, 884 So.2d 359, 363-64 (Fla. 2d DCA 2004). “The inquiry is not as concerned ‘with the mere existence of legal error as much as with the seriousness of the error.’ ” Id. at 364 (quoting Combs v. State, 436 So.2d 93, 95 (Fla. 1983)). The “misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level.” Id. (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682-83 (Fla. 2000)). Instead, the standard requires “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. (citing Combs, 436 So.2d at 96).

Here, the husband was incarcerated at the time the wife filed her motion to take the husband’s deposition. As a result, the wife’s motion was predicated on the last sentence ofirule 1.310(a), which states, in pertinent part, that “[t]he deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.” (Emphasis added.) Reading the relevánt parts of the rule reasonably and in context, it is clear that the trial court is given discretion to permit the depositions of incarcerated deponents and, in doing so, to set appropriate conditions ' on how those depositions are conducted. Those conditions will necessarily be case specific and the trial court—who is in the best position to make the required fact-intensive decisions—is given discretion to' fashion sensible boundaries. See, e.g., Gooden v. Merline, 2008 WL. 939195, *1 (D.N.J. Apr. 4, 2008) (“[T]he deposition of a person confined in prison may be taken only by leave of court on such terms as the. Court prescribes. See Miller v. Bluff, 131 F.R.D. 698, 699 (E.D. Pa. 1990). This is a recognized exception to the otherwise general rule that leave of court is not required in order to take another party’s deposition. Fed. R. Civ. P. 30(a)(1). The purpose of Rule 30(a)(2)'is'to prevent unnecessary disruption to the prison administration and to‘ protect the prisoner from ‘any possible disadvantage in the deposition process.’ ” (quoting Kendrick v. Schnorbus, 655 F.2d 727, 729 (6th Cir. 1981))).

In evaluating the trial court’s exercise' Of discretion under rule 1.310(a), it is important to remember that the wife’s motion alleged that jail officials indicated she would not be allowed to attend the husband’s deposition.' By denying the wife’s motion to be physically present at the deposition—but by allowing her to attend teléphonically—-the trial court struck a reasonable balance between the rules at the Baker County Jail and the wife’s request to be a participant at the husband’s deposition. In crafting this solution, the trial court afforded the wife the process that rule 1.310(a) imparts and in doing so, provided a resolution that was well within the court’s discretion. Therefore, the wife has failed to demonstrate that the trial court’s order constitutes a departure from the essential requirements of the law. See Williams, 62 So.3d at 1136 (“Dr. Oken was afforded the process guaranteed by statute because he received advance notice and an opportunity to examine Williams’ claim before the filing of the lawsuit. Thus, a deprivation of the process did not occur.”); Nestor v. Posner-Gerstenhaber, 857 So.2d 953, 955 (Fla. 3d DCA 2003) (“Because the trial court has broad discretion in discovery matters, . „. and there has been no clear departure from the essential requirements of law which results in a miscarriage of justice, we deny certiorari review.”); see also Fla. Highway Patrol v. Bejarano, 137 So,3d 619, 621 (Fla. 1st DCA 2014) (“But even if irreparable harm was demonstrated, the trial court’s order does not violate the essential requirements of law. ... [T]he order comports with the discretionary authority granted to trial courts to administer the discovery process by the rules of civil procedure.”).

We turn next to the wife’s second claim in her petition—that the trial court departed from the essential requirements of the law when it denied her motion to continue the final hearing and to reset the pre-trial deadlines because it did not follow the procedures set forth under Florida Rule of Civil Procedure 1.440. Shortly after the wife filed her petition for writ of certiorari, this Court’s motions panel issued an order staying further proceedings in the trial court pending final disposition of the current petition. The stay removed the wife’s dissolution action from the trial court’s January 19,2017, calendar, which is the essence of the relief sought in the second claim of the wife’s petition. . As a result, this part of the wife’s petition is moot. See Rupp v. HMC Assets, LLC, 213 So.3d 1126 (Fla. 1st DCA 2017) (Mem.).

Because the wife has failed to demonstrate that the trial court departed from the essential requirements of law as to her first claim, and because her second claim is moot, the wife’s petition for writ of certio-rari is DENIED.

WETHERELL and BILBREY, JJ., CONCUR.

      . Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2)(A).

      . The quoted portion of the rule references "a person confined in prison.” However, because it was never raised by the wife or addressed by the trial judge, we are not confronted with the issue of what constitutes a "prison” under the provisions of rule 1.310(a).


author: WETHERELL, J.

text:
    John NORFLEET, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1971
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017

      Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Kaitlin Weiss and Virginia Harris, Assistant Attorneys General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, John Norfleet, was convicted of first-degree murder and aggravated child abuse after his four-year-old daughter died following a brutal “whooping” that he gave her with a board. We find no merit in the two issues raised by Norfleet and write only to address his contention that it was fundamental error for the trial court to declare certain state witnesses to be “experts” in front of the jury.

Among the witnesses presented by the state were Ms. Haynes (DNA analyst), Dr. Pena (pediatrician), Dr. Buchsbaum (medical examiner), and Dr. Meadows (psychologist). For each of these witnesses, after eliciting testimony about their qualifications and experience, the prosecutor tendered the witness as an expert in their specific field. Norfleet’s counsel did not object to the tenders, and in the presence of the jury, the trial court declared the witnesses to be experts in their respective fields. For example, the colloquy with respect to Ms. Haynes went as follows:

[PROSECUTOR]: Your Honor, at this time I would tender Ms. Haynes as an expert in the field of STR DNA testing and analysis.
[DEFENSE COUNSEL]: No objection.
THE COURT: All right. Ladies and gentlemen, the witness will be declared to be an expert in the field of DNA testing. That gives her the ability to offer an opinion which would be different than a normal witness who can only testify to an observance or a fact.

The colloquies with respect to the other experts were substantially the same.

On appeal, Norfleet argues that it was fundamental error for the trial court to declare these state witnesses to be experts in front of the jury because the declarations amounted to an impermissible comment by the court on the witnesses’ credibility. In support of this argument, Norfleet relies primarily on Osorio v. State, 186 So.3d 601 (Fla. 4th DCA 2016).

In Osorio, the Fourth District held that it was error for the trial court to declare the expert status of a witness in front of the jury because doing so “confers an imprimatur of authority and credibility, thereby inordinately augmenting the witness’s stature while simultaneously detracting from the court’s position of neutrality.” Id. at 609. We agree. See Whittaker v. State, 742 So.2d 530, 530 (Fla. 1st DCA 1999) (holding that the “the trial court’s sua sponte declaration that [an officer] qualified as an expert constituted an improper comment on the credibility of the witness”); Chambliss v. White Motor Corp., 481 So.2d 6, 8 (Fla. 1st DCA 1985) (explaining that “it is questionable whether it is proper procedure for a court to expressly declare a witness an ‘expert’ because the jury may infer from such declaration that the court is placing its approval on the opinions of the witness”). However, because Norfleet did not object when the prosecutor tendered the witnesses as experts or when the trial court declared them to be experts in front of the jury, reversal is required in this case only if the declarations constitute fundamental error. See Mitchell v. State, 207 So.3d 369, 370 (Fla. 5th DCA 2016) (holding that even if the trial court erred when it declared a state witness to be an expert in front of the jury, the error did not rise to the level of fundamental error).

Fundamental error applies “only in rare cases ... where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla. 1988). “To be fundamental, an error must ‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Harrell v. State, 894 So.2d 935, 941 (Fla. 2005) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. I960)); see also Randall v. State, 760 So.2d 892, 901 (Fla. 2000) (“For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to the denial of due process.”).

Here, we conclude that the trial court’s error in declaring the state witnesses to be experts in front of the jury was not fundamental because we have no doubt that a guilty verdict could have been—and would have been—obtained without these declarations. This conclusion is based on three independent grounds.

First, Norfleet did not dispute that the “whooping” he administered was the cause of his daughter’s death; his defense was insanity. Putting aside the fact that the record reflects that this defense was extremely weak, it is noteworthy that the witness he presented to support the defense (Dr. Waldman) was declared an expert in the same manner as the witnesses presented by the state to rebut that defense. Specifically, after Norfleet’s counsel “tendered] Dr. Waldman as an expert in the field of forensic psychiatry, neuropsy-chiatry,” the trial court stated: “All right. Ladies and gentlemen, the doctor is declared an expert in that field. We’ve talked about that before. He’ll be able to offer an opinion.” Accordingly, to the extent that the trial court’s declaration of the state’s witnesses as experts bolstered their credibility, the court likewise bolstered the credibility of the main defense witness.

■ Second, each of the trial court’s declarations that a witness was an expert was coupled with a clear and concise explanation that this status merely allowed the witness to offer a different type of testimony than a normal witness. The explanation was consistent with Standard Jury Instruction (Criminal) 3.9—which the trial court read as part of the jury instructions —and significantly mitigates the concern that the jury would view the court’s declaration of the witness as an expert as a positive comment on the witness’ credibility or a wholesale endorsement of the witness’ testimony. Cf. Mitchell, 207 So.3d at 371 (‘We believe that it is overly formalistic to presume that the mere acceptance of a witness as an expert constitutes a comment on the credibility of the witness. This is particularly true given that the jury instructions specifically address, the role of expert witnesses at trial, and juries are presumed to follow their instructions.”).

Third, the case against Norfleet was extremely strong, and the facts testified to by the state’s court-declared experts (other than the psychologist, Dr. Meadows) were largely undisputed. For example, the focus of Ms. Haynes’ testimony was that the victim’s DNA was on the board, but Norfleet .admitted in a post-Miranda statement that he “whooped” the victim with that board nearly 20 times on the day she died. Similarly, the testimony of Drs. Pena and Buchsbaum focused on the severity of the victim’s injuries and the cause of her death, but as defense counsel stated in closing argument, Norfleet was “not disputing that his actions' contributed to [his daughter’s] demise.” Moreover, as noted above, although Dr. Meadows testified about the disputed issue of Norfleet’s sanity, any prejudice resulting,from the trial court’s declaration that he was an expert was offset by the court’s declaration that the defense witness on this issue (Dr. Waldman) was also an expert. Accordingly, under these circumstances, declaring these state witnesses to be experts in front of the jury did not deny Norfleet due process or a fair trial.

For these reasons, Norfleet’s convictions and sentences are AFFIRMED.

RAY and MAKAR, JJ., CONCUR.

      . Norfleet justified “whooping” his daughter with a “rod” until it hurt her on his religious views, specifically the Biblical verse that says “the blueness of a wound cleanses away evil.” This “bizarre religious practice” (defense counsel’s words) was central to Norfleet's insanity defense because, as his counsel twice told the jury in closing argument "[n]o sane person would do this to a child.”

      , The court instructed the jury as follows:
      Expert witnesses as we’ve talked about are like other witnesses with one exception: The law permits an expert witness to give his opinion. However, an expert witness’ opinion is reliable only when given on a subject about which you believe he or she to be an expert. Like other witnesses you may believe or disbelieve all or any part of an expert witness’ testimony,
      (emphasis added).


author: SAWAYA, J.

text:
    Clifton CORNELIUS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1138
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 27, 2017

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   SAWAYA, J.

This Petition for Writ of Prohibition is a sequel to a series of pleadings filed by Clifton Cornelius invoking his right to a speedy trial and seeking discharge from the criminal charges pending against him, Although Cornelius, like other criminal defendants, has the right to a speedy trial, the manner of his invocation of that right is problematic for him. Specifically, the issue in this case concerns the validity of a pro se demand for speedy trial Cornelius filed in the trial court. In addition to the demand, Cornelius also filed a pro se notice of expiration and a pro se motion for discharge, which will collectively be referred to as the “pleadings.” (The relevance of these pleadings will appear later in the discussion.) The pro se designation is significant because Cornelius was represented by counsel at the time he filed the demand for speedy trial and sent it on the procedural path in the trial court. Although the traverse ended in the trial court when an order was entered striking the demand, it continues in this court with the filing of Cornelius’s pro se petition for writ of prohibition.' In that petition, Cornelius requests that this court enter an order “preventing] the State of Florida, and alternatively, the Seventh Judicial Circuit Court from prosecuting the above styled case.”

We will explain why we decline that request by discussing: 1) the procedural history of Cornelius’s invocation of his speedy trial rights in the trial court; 2) whether the trial court correctly struck the demand; 3) if the trial court’s reasoning was incorrect, whether the trial court arrived at the correct conclusion; 4) whether his .counsel properly adopted the pro se demand and other pleadings in this court; and 5) whether adoption of the pleadings should relate back to the date of> initial filing.

Dates are pertinent to the procedural history, so we will mention them. In August 2011, Cornelius was charged by information with fleeing or attempting to elude and driving without a license. The Office of the Public Defender was appointed to represent him in 2011 and has continuously represented Cornelius since that initial appointment. Before these charges were resolved, Cornelius was sentenced to a term of incarceration in the Department of Corrections in an unrelated case. The charges remained pending while Cornelius served his sentence.

On January 23, 2017, Cornelius filed his pro se demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(b). Cornelius requested that the trial court grant a speedy trial or enter an order dismissing the charges and the de-tainer. According to the certificate of service, Cornelius did not send a copy of the demand to his counsel. He also did not send copies of the other pleadings to his counsel.

The State moved to strike Cornelius’s demand, arguing that his right to a speedy trial had not attached because he had not been formally arrested in this case. The trial court granted the State’s motion without explanation. Cornelius filed a motion for rehearing, which was denied.

Cornelius subsequently filed the instant petition for writ of prohibition on April 18, 2017, contending that his speedy trial rights have been violated and requesting that this court order his discharge. On May 22, 2017, Cornelius’s counsel filed a response arguing that the trial court erred in applying the wrong section of Florida Rule of Criminal Procedure 3.191. The response also stated that counsel was adopting the pro se pleadings and that we should refrain from applying the date-of-adoption rule applied by the court in State v. Craven, 955 So.2d 1182, 1183-84 (Fla. 4th DCA 2007) (holding that pro se pleadings, such as pro se filings regarding speedy trial, that are filed while the defendant is represented by counsel are nullities and must be stricken unless adopted by counsel, in which ease the date of adoption rather than the date of filing applies).

We agree with Cornelius that the trial court proceeded under the wrong section of Florida Rule of Criminal Procedure 3.191 when it struck his demand for speedy trial. Rule 3.191(a), which deals with speedy trial without demand, is triggered when a defendant is taken into custody. See Fla. R. Crim. P. 3.191(a) (“[E]very person charged with a crime shall be brought to trial ... within 175 days of arrest if the crime charged is a felony ... The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d).”).

In this case, however, Cornelius filed a demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(b). See id. (providing that rule 3.191(a) “shall cease to apply whenever a person files a valid demand for speedy trial under subdivision (b)”). Rule 3.191(b) provides that “every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days.” The sixty-day limit begins to run from the date of demand regardless of a defendant’s custody status. Carter v. State, 509 So.2d 1126, 1128 (Fla. 5th DCA 1987). Accordingly, whether Cornelius had been arrested in this case was irrelevant to the trial court’s analysis of his speedy trial demand.

Although the trial court’s reasoning was wrong, our analysis does not end here, because the demand was filed by Cornelius while he was represented by counsel. Courts have adopted the general rule, with limited exceptions not applicable here, that a pro se pleading is a nullity and must be stricken if it is filed while the defendant is represented by counsel. See Logan v. State, 846 So.2d 472, 476 (Fla. 2003); Craven, 955 So.2d at 1183; Sams v. State, 849 So.2d 1172, 1174 (Fla. 3d DCA 2003); Booker v. State, 807 So.2d 800, 801 (Fla. 1st DCA 2002); Lewis, 766 So.2d at 289. Courts sometimes consider “nullity rule” to be an appropriate moniker. See Sheppard, 17 So.3d at 280. A motion by the State to strike a pro se pleading is not a prerequisite to application of the nullity rule. See Prevatt v. State, 776 So.2d 1114, 1115 (Fla. 5th DCA 2001) (“Petitioner cannot be represented by counsel and at the same time elect self-representation. Accordingly, we are bound to dismiss the petition.”) (internal citations omitted); Craven, 955 So.2d at 1183 (“Such pleadings are nullities without regard to whether a motion to strike was filed.”).

The nullity rule emanates from judicial recognition that criminal defendants are generally not entitled to hybrid representation by counsel and themselves. See Sheppard, 17 So.3d at 279 (“[A] defendant has no Sixth Amendment right to simultaneously proceed pro se and with legal representation.”). This rule applies to demands for speedy trial and attendant notices of expiration and motions for discharge. See Smith v. State, 758 So.2d 741, 742 (Fla. 5th DCA 2000); Salser v. State, 582 So.2d 12, 14 (Fla. 5th DCA 1991); State v. Templar-O’Brien, 173 So.3d 1129, 1132 (Fla. 2d DCA 2015) (“A pro se notice of expiration of speedy trial period and a motion for discharge filed while represented by counsel are nullities, having no legal force or effect.”); Harden v. State, 152 So.3d 626, 627 (Fla. 3d DCA 2014) (“[A] pro se demand for speedy trial that has not been adopted by the defendant’s counsel cannot be entertained on the merits.”); Craven, 955 So.2d at 1183; Sams, 849 So.2d at 1174 (holding that the defendant’s pro se demand for speedy trial and motions to dismiss and discharge filed pursuant to rule 3.191(b) were each a “nullity” because the pleadings were filed while the defendant was represented by counsel); Thompson v. State, 615 So.2d 737, 741 (Fla. 1st DCA 1993) (“This court has frequently held that a pro se motion for discharge filed when the defendant was represented by counsel is a nullity, having no legal force or effect ”); Beverly v. State, 516 So.2d 30, 31 (Fla. 1st DCA 1987). Pursuant to the nullity rule, the trial court should have stricken Cornelius’s pro se demand for speedy trial 'as a nullity and never considered it further. Thus, the trial court properly struck the demand for speedy trial filed by Cornelius, albeit for the wrong reason. See Marquardt v. State, 156 So.3d 464, 482 (Fla. 2015) (holding that, pursuant to the “tipsy coachman” doctrine, “if the trial court reached the correct result based on the wrong reason, the ruling may be affirmed”).

Implicitly recognizing that the nullity rule portends an impediment to the relief Cornelius requests, his counsel attempts to adopt the demand and other pro se pleadings for the first time in this court. She argues that we should look away from the date-of-adoption rule in Craven and hold that the pertinent date relates back to the initial filing of the pro se pleadings. Cornelius would then be able to argue that he is entitled to discharge because he was not brought to trial within the time limitations of the speedy trial rule.

We recognize that counsel may breathe life into unauthorized pro se pleadings by adopting them. Logan, 846 So.2d at 475; Harden, 152 So.3d at 627; Sams, 849 So.2d at 1174. However,, adoption of the pro se demand and the other pleadings should be a matter that is presented to the trial court. Golden v. State, 84 So.3d 396, 398 (Fla. 1st DCA 2012); Craven, 955 So.2d at 1184. Florida Rule of Criminal Procedure 3.191 provides that the trial court must comply with certain time requirements, which necessarily requires that the trial court know that a demand has been made. For example, the trial court must hold a calendar call within five days and timely set the trial date. Fla. R. Crim. P. 3.191(b)(l)-(2). Adoption in this court may thwart that procedural process and prevent proper compliance with the rule by triggering the start of time periods before the trial court is made aware of what has transpired.

As to the relation-back argument, the courts have held that if the trial court permits counsel to adopt a pro se pleading, the effective date should be the date of adoption rather than the date the pleading was initially filed by the defendant, In Craven., the Fourth District Court held that “in the context of pro se speedy trial pleadings, if the trial court permits defense counsel to adopt the pro se pleads ings, the effective date should be the actual date of adoption, not the date on which the unauthorized pleadings were filed.” 955 So.2d at 1184; see also Isla v. State, 185 So.3d 695, 695 (Fla. 5th DCA 2016) (affirming based .on the tenet outlined in Golden, 84 So.3d at 398); Golden, 84 So.3d at 398 (“Assuming arguendo that the trial court properly allowed Golden’s counsel to adopt the pro se motion, the effective date of an adopted pro se motion is the date it is adopted and not the initial date the unauthorized pleading was filed.”). The courts reject' the relation-back argument, reasoning, that it “would swallow the ‘nullity’ rule by forcing the state to respond to a pro se ‘Notice of Expiration of Speedy Trial Period’ as if it had" been filed by counsel or risk losing the 16-day recapture period provided by the criminal procedure rules.” Craven, 955 So.2d at 1184. Therefore, the effective date of- any adopted pleadings in this case would be the date of adoption, not the date of initial filing.

Both parties request that if we deny the petition, the denial should be without prejudice so counsel for Cornelius may attempt to have the trial court address the adoption issue. The petition for writ of pi-ohibition is therefore denied without prejudice for defense .counsel to file a demand for speedy trial in the trial court or. seek adoption in the trial court of the pleadings filed by. Cornelius.

PETITION DENIED.

EVANDER and WALLIS, JJ., concur.

      . A writ of prohibition is an appropriate remedy to address alleged speedy trial violations. See Sherrod v. Franza, 427 So.2d 161, 163 (Fla. 1983) (‘‘[P]rohibition (which is the remedy sought here) may properly be used in. the context of a speedy trial violation,”); Smart v. State, 179 So.3d 477, 478 (Fla. 4th DCA 2015).

      . This court ordered the Office of the Public Defender to advise whether it represented Cornelius, whether it intended to adopt the pro se petition, and whether it intended to file a reply to the State’s response. The Office of the Public Defender advised this court that it has represented Cornelius since 2011 and that it was adopting his petition for writ of prohibition. We have allowed adoption of that petition.

      . See, e.g., Sheppard v. State, 17 So.3d 275, 277 (Fla. 2009); Finfrock v. State, 84 So.3d 431, 433-34 (Fla. 2d DCA 2012); Echeverria v. State, 33 So.3d 802, 803 (Fla. 1st DCA 2010); Burns v. State, 50 So.3d 744, 746 (Fla. 2d DCA 2010) (holding that a represented defendant's pro se filing is not a nullity when the motion alleges an adversarial relationship between defendant and counsel); Smith v. State, 21 So.3d 72, 74 (Fla. 1st DCA 2009) (holding that there is a limited exception to the rule where a represented defendant’s pro se motion is based on allegations of an adversarial relationship between defendant and counsel); Murray v. State, 1 So.3d 407, 408 (Fla. 2d DCA 2009) (noting an exception in a represented defendant's pro se motion that unequivocally seeks to discharge counsel); Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000).


author: Per Curiam. Gerber, J.,

text:
    Tavaris DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1383.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2017
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Raiman, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant -appeals ..from his conviction on only Count V, aggravated assault with a firearm. He argues that the trial court should have granted his motion for judgment of acquittal on that count because the alleged victim was a one-and-a-half year old child, and no competent evidence existed that the child experienced fear, an essential elemént of assault. See § 784.011(1), Fla. Stat. (2015) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent”) (emphasis added).

The state concedes that, pursuant to ease law, this court should reverse the defendant’s conviction on only Count V and remand for the trial court to vacate the defendant’s conviction and sentence on that count. See Pray v. State, 571 So.2d 554, 555 (Fla. 4th DCA 1990) (“There was no evidence of the five month old infant victim’s perceptions or feelings and thus there was inadequate proof of an assault.”). We accept the state’s concession.

The defendant also appeals from his sentences on the other five counts for which he was convicted: (I) home invasion robbery with a firearm against victim one; (II) third degree grand theft, as a lesser included offense of robbery with a firearm, against victim two; (III) aggravated assault with a firearm against victim three; (IV) aggravated assault with a firearm against victim two; and (VI) false imprisonment while in possession of a firearm against victim one. He argues that the trial court committed fundamental error by not explaining the sentences it imposed, even though the sentences fell within statutory limits. He also requests that we certify a question of great public importance as to this argument. Without further discussion, we affirm as to this argument and deny the request to certify a question of great public importance. See Alfonso-Roche v. State, No. SC16-1010, 2016 WL 3271894 at *1 (Fla. June 15, 2016) (denying petition for review of certified question of great public importance on related sentencing issue).

Reversed and remanded to vacate conviction and sentence on Count V; sentences affirmed on Counts I, II, III, TV, and VI; request to certify question of great public importance denied.

Warner and Forst, JJ., concur.

Gerber, J., concurs with an opinion.

Gerber, J.,

concurring.

Based on the state’s concession that this court should reverse the defendant’s conviction on only Count V, I am willing to concur in the majority’s decision to accept that concession.

However, our acceptance of the state’s concession under the evidence presented in this case should not be read as an acceptance that a very young child is incapable of experiencing and demonstrating “a well-founded fear ... that such violence is imminent,” an essential element of assault. See § 784.011(1), Fla. Stat. (2015) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”) (emphasis added).

Victim three testified he was holding the child when the defendant ran past him. The defendant pointed' a gun at victim three’s head. When victim three was asked whether the defendant pointed the gun at the child, victim three answered, “She was in my arms, so she was pretty close so it could have hit her.” Victim three testified he was in fear that both he and the child could be shot. Victim one testified that immediately after the incident, the adult victims were hysterical, screaming, and crying, and the child also was crying.

Was the child crying because that is what one-and-a-half year old children do from time to time? Or was the child crying because the child’s innate sense of fear was alerted by the defendant’s violent actions and the adult victims’ reactions of hysteria, screaming, and crying?

While I recognize that a one-and-a-half year old child’s cognitive and communicative abilities are limited, we do not know at what point in a child’s development that a child experiences fear. Thus, I write separately to emphasize that our acceptance of the state’s concession under the evidence presented in this case should not be read as an acceptance that a very young child is incapable of experiencing and demonstrating “a well-founded fear ... that such violence is imminent,” an essential element of assault. See § 784.011(1), Fla. Stat. (2015).


author: SALARIO, Judge.

text:
    STATE of Florida, Appellant, v. Judith Wina TRAPPEN, Appellee.
    Case No. 2D15-5129
    District Court of Appeal of Florida, Second District.
    Opinion filed June 30, 2017.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.
    Leon H. Jones of LHJ Law, Tampa, for Appellee.
   SALARIO, Judge.

The State appeals from a final order that granted Judith Trappen’s motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We hold that the undisputed allegations of Ms. Trappen’s motion and the State’s traverse made out a prima facie case that Ms. Trap-pen violated section 790.23(1), Florida Statutes (2014), which makes it unlawful for a felon “to own or to have in his or her care, custody, possession, or control any firearm.” Accordingly, we reverse and remand for further proceedings.

In a one-count information, the State charged Ms. Trappen with violating section 790.23(1). Tracking the statutory language, the State alleged that Ms. Trappen, who had been convicted in 2006 of a felony for obtaining property in exchange for a worthless check for more than $150, violated section 790.23(1) in December 2014.

Ms. Trappen filed a verified motion to dismiss pursuant to rule 3.190(c)(4) in which she alleged that her husband, a gun enthusiast who owned multiple firearms, passed away in November 2014. According to the motion, Ms. Trappen was strapped for cash while waiting on payments from her husband’s life insurance and decided to sell her husband’s guns. She and a friend went to a pawn shop, where Ms, Trappen submitted her fingerprint and sold the firearms. According to the pawn shop employee’s deposition, the employee could not remember the events in any detail and, in particular, could not remember whether Ms. Trappen actually touched the guns at any point. The arresting detective, who was also deposed, did not witness the events.

Based on these allegations, Ms. Trappen asserted two legal bases for dismissal under rule 3.190(c)(4). First, she asserted that under the undisputed facts the State could not make a prima facie case that she actually possessed a firearm because no witness could testify that she actually touched any firearm and, even if she did, the State could not show “that the touching was in a manner that the statute intended to forbid.” Second, relying on Henderson v. United States, — U.S. -, 135 S.Ct. 1780, 191 L.Ed.2d 874 (2015), a decision of the United States Supreme Court interpreting the federal felon in possession statute, Ms. Trappen argued that the State could not make out a prima facie case that she constructively possessed the firearms.

The State filed a traverse pursuant to rule 3.190(d) that admitted the material allegations of Ms. Trappen’s motion but included additional facts. It alleged that Ms. Trappen admitted to the arresting detective that “she took the firearms and pawned them.” It also said that Ms.' Trap-pen personally completed the paperwork and answered all questions related to the sale, put her thumbprint on a transaction form indicating that she owned the firearms, and took money from the pawn shop in exchange for the firearms. Based on these allegations, the State argued that it had made a prima facie case that Ms. Trappen constructively possessed the firearms and that the .federal statute at issue in Henderson was .distinguishable from the language of section 790.23(1) such that the reasoning of that case could not be applied here.

At a hearing on the motion to dismiss, Ms. Trappen admitted the additional facts alleged in the State’s traverse. Without hearing argument, the trial court announced that Ms. Trappen’s motion would be granted. The trial court later entered a written order consistent with its oral ruling. The State timely appeals,

We review an order granting -a rule 3.190(c)(4). motion de novo. Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003). The purpose of the rule 3.190(c)(4) procedure is to avoid a trial in a criminal case when there are no material facts genuinely at issue. State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000). Under that procedure, a defendant may seek dismissal where “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.” Fla. R. Crim. P. 3.190(c)(4). “It is the defendant’s burden to demonstrate that no prima facie case exists upon the undisputed facts set forth in detail in the motion.” State v. Cadore, 59 So.3d 1200, 1202 (Fla. 2d DCA 2011) (citing Kalogeropolous, 758 So.2d at 111). Where, as here, the State responds to a motion to dismiss with 'a traverse admitting the material facts and adding new facts of its own, the question for the trial court is whether the State can show that the undisputed facts make out a prima facie case of the defendant’s guilt. See State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002); see also Fla. R. Crim. P. 3.190(d).

In assessing whether there is a prima facie case of guilt set forth on the facts presented, the evidence must be taken in the light most favorable to the State, with all inferences resolved ■ against the defendant. State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002); see also Bell, 835 So.2d at 394. The State is not required to produce all of the facts or evidence it might present at a trial, Kalogeropolous, 758 So.2d at 112, nor is it required to produce facts and evidence that would survive a motion for judgment of acquittal, Dickerson, 811 So.2d at 747. Instead, it is “only where the most favorable construction to the state” of the facts in the motion and traverse would fail to establish a pri-ma facte case of guilt that a rule 3.190(c)(4) motion should be granted. Pasko, 815 So.2d at 681 (quoting State v. Hunwick, 446 So.2d 214, 215-16 (Fla. 4th DCA 1984)).

Under these standards, we agree with the State that the factual allegations of the motion taken together with the facts-added by its traverse present a prima facie case that, at a minimum, Ms. Trappen constructively possessed a firearm in violation of section 790.23(1). See Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002) (“Possession of a firearm by a convicted felon can be proven either by an actual or a constructive possession theory.”)- To survive Ms. Trappen’s rule 3.190(c)(4) motion on a constructive possession theory, the State needed to show a prima facie case that Ms. Trappen knew the gun was present and had the ability to exercise control over it. See Watson v. State, 961 So.2d 1116, 1117 (Fla. 2d DCA 2007) (explaining elements of proof for felon in constructive possession of a gun).

The undisputed facts in the motion and traverse make out a prima facie case of knowledge of the firearms and the ability to control them. Ms, Trappen’s own allegations are that she made a decision to pawn the guns and that she and a friend went to a pawn shop to make that happen. Those allegations are direct evidence of Ms. Trappen’s knowledge of the guns,. inasmuch as it would have been impossible for her to execute a plan to sell them without knowing about them, and are at a minimum circumstantial evidence of her ability to control them, inasmuch as a fair inference from the fact that she pawned them is that she had the ability to control them. See Cadore, 59 So.3d at 1203-04 (holding that entirely circumstantial evidence of constructive possession was sufficient to overcome rule 3.190(c)(4) motion to dismiss). Moreover, Ms. Trappen’s own statement—as provided by the State’s traverse—that “she took the firearms and pawned them” can reasonably be interpreted as an admission of both knowledge of and the ability to control the firearms as the act of taking and pawning the firearms implies both. See Dickerson, 811 So.2d at 747 (reversing rule 3.190(c)(4) dismissal where the State’s traverse alleged that defendant admitted to knowing of the presence of contraband).

Ms. Trappen, however, argues that the United States Supreme Court’s decision in Henderson shows that the concept of constructive possession cannot operate to extend section 790.23(1) to the facts of this case. In Henderson, the Court interpreted the federal felon in possession statute, then in effect, 18 U.S.C. § 922(g), which made it unlawful for a felon “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” There, a federal felon who had surrendered his firearms to the FBI later asked the FBI to transfer them to a friend who he said had agreed to buy them. 135 S.Ct. at 1783. The FBI refused on grounds that the transfer would place the felon in constructive possession of the firearms in violation of § 922(g).. Mr. Henderson then filed a petition seeking to compel the transfer of the firearms to his wife or the friend, which a federal district court denied. The Eleventh Circuit Court of Appeals affirmed. Id. at 1783.

The Supreme Court reversed and held that the federal felon in possession statute did not reach as far as the lower courts had held. While recognizing the argument that § 922(g) “prevents a court from ordering the sale or other transfer of a felon’s gun to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use” because this would amount to constructive possession, id. at 1784, the Court explained that interpreting the statute to prohibit a felon from disposing of his guns through another “wrongly conflates the right to possess a gun with another incident of ownership, which § 922(g) does not affect: the right merely to sell or otherwise dispose of that item;” id. at 1785. The Court emphasized that “[sjection 922(g) proscribes possession alone” and “[b]y its terms, [§ ] 922(g) does not prohibit a felon from owning firearms.” Id. at 1784. Because the statute did not regulate ownership of guns, the Court reasoned, a convicted felon retains the right to sell or dispose of his guns. Id. at 1784-85. The Court also reasoned that a construction of the term “possession” that precluded such a sale extended § 922(g) beyond its purpose because it would prevent a felon from disposing of firearms in a way that would guarantee that the felon never used those firearms again. Id. at 1786. It ultimately held that so long as “a court is satisfied that a felon will not retain control over his guns, § 922(g) does not apply,” and a court may act within its equitable power to grant a felon’s request that his or her firearms be transferred to a particular person. Id. at 1787.

Ms. Trappen’s argument that “[biased upon the rationale of Henderson,” the State “cannot prove that [she] constructively possessed the firearms” at issue misunderstands that case. Henderson hinged on the fact that the interpretation of the statutory term “possession” endorsed by the lower courts interfered with a legal activity § 922 did not reach—the ownership of a firearm by a felon. Legal ownership necessarily includes the right to dispose of what one owns, and prohibiting a felon from disposing of a firearm he owns prohibits that which the statute, by its terms, actually permits. See id. at 1174-75. Section 790.23(1), however, does not present that issue; by its terms, it criminalizes both possession and ownership of a firearm by a felon. § 790.23(1) (making it a crime for a felon to “own .,. any firearm” (emphasis added)). The Florida statute thus does not require that we confront the interpretative problem in the federal statute with which the Henderson Court was presented.

Moreover, Henderson is distinguishable in two critical respects. First, even assuming that the Florida statute permitted ownership of a firearm by a convicted felon, the undisputed facts here, unlike the facts in Henderson, do not establish that Ms. Trappen in fact owned the firearms. Ms. Trappen’s motion alleged only that the firearms were her husband’s, that her husband died, and that after her husband died, she decided to sell them. It is certainly possible on those facts that Ms. Trappen became the owner of those firearms through inheritance or some other means—and this opinion does not restrict either Ms. Trappen or the State from making that case on remand—but it is also possible that the firearms were part of an estate being administered in probate or that Ms. Trappen’s husband had by will devised the firearms to someone else or that some other circumstance existed that prevented Ms. Trappen from claiming ownership of her husband’s firearms, such that she had no right to dispose of them. See ch. 732, Fla. Stat. (2014) (governing intestate succession and wills). In Henderson, the felon’s ownership of the firearms was a given, and the Court’s application of the statutory term “possess” depended on his having the right to dispose of the firearms that is an incident of ownership. The allegations of Ms. Trap-pen’s motion do not establish that right, however, and on that score her motion failed to meet her burden of demonstrating that, on the undisputed facts, the State could not make out a prima facie case of guilt. See Kalogeropolous, 758 So.2d at 111 (“Under this rule it is the defendant’s burden ... to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.”).

In addition, in Henderson, unlike this case, the lower courts interpreted “possession” to reach a transaction in which the felon’s involvement was quite attenuated. Mr. Henderson’s only participation was selecting the person to whom ownership of the firearm would pass; apart from that, the weapon would pass from the FBI to Mr. Henderson’s friend without his involvement. As the Supreme Court recognized, saying that those circumstances constitute constructive possession is in tension with the element of control underlying that concept precisely because Mr. Henderson’s ability to exert influence over the firearm was attenuated. See 135 S.Ct. at 1785 (reasoning that constructive possession is designed to preclude a situation in tyhich “the felon would have control over the guns, even while another person kept physical custody” and to “allow[ ] the law to reach beyond puppets to puppeteers” (quoting United States v. Al-Rekabi, 454 F.3d 1113, 1118 (10th Cir. 2006))). In contrast, Ms. Trappen’s ability to exert influence over the firearms here was, on the facts alleged in the motion and traverse, quite direct: she made the decision to sell them, she took them to the pawn shop with a friend, she walked into the pawnshop with her friend and the guns, and she transferred the guns to the pawn shop in exchange for money, using her own fingerprint to do so. As described above, her involvement in the transaction virtually required that she have had the ability to exercise control over her husband’s firearms and is thus quite consistent with the concept of constructive possession as typically understood in Florida.

If the facts alleged in the motion and traverse are really all there is, one might fairly wonder why the State would bring this kind of prosecution. But on the limited facts in the motion and traverse we do not' know whether that is really all there is, and nothing about this case suggests that the State’s reasons for bringing the prosecution are legally relevant at this stage of the proceedings. The only legally proper consideration at present is whether the facts alleged in the motion and traverse make out a prima facie casé that Ms. Trap-pen violated section 790.23(1). They do. We therefore reverse the trial court’s dismissal order and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      . In its opposition to the motion to dismiss in the trial court, the State argued only constructive possession. It did not argue that Ms. Trappen actually possessed a firearm or that she violated the felon in possession statute in another specified way. See § 790,23(1) (prohibiting a felon from owning a firearm or having care, custody, or control of a firearm). Because we can resolve this appeal solely on the ground argued by the State in the trial court, we need not consider whether the State preserved any other grounds or whether such grounds would have merit.

      . Ms. Trappen argues for the first time on appeal that she possessed the firearms for the purpose of lawful disposal. Florida courts have recognized a defense to a prosecution for possession of a controlled substance based on temporary possession for the sole purpose of lawful disposal, See, e.g., Robinson v. State, 57 So.3d 278, 281 (Fla. 4th DCA 2011) ("We have previously recognized that temporary control of contraband for the purpose of legal disposition by throwing it away, destroying it, or giving it to police can be a valid defense to the crime of possession of a controlled substance.”); Fla. Std. Jury Instr. (Crim.) 3.6(m) ("It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal.”); cf. Marrero v. State, 516 So.2d 1052, 1054 (Fla. 3d DCA 1987) (discussing necessity defense and noting that “the law has long recognized that there may be circumstances under which a convicted, felon’s possession of a firearm would be justified” in the case of self-defense). We have found no case adopting that defense in a prosecution for felon in possession of a firearm, but cf. West v. State, 69 So.3d 1075 (Fla. 1st DCA 2011) (assuming without comment that the defense exists), and Ms, Trappen has not developed the argument beyond half a sentence in her brief. She did not make this argument in the trial court, and her motion does not develop the alleged record necessary to make out the defense under .the rule 3.190(c)(4) standard. See State v. Quetglas, 901 So.2d 360, 362 (Fla. 2d DCA 2005) (stating that it is the defendant's burden on a rule 3.190(c)(4) motion to show that the undisputed facts make out a valid defense).


text:
    Chris Leonard THORNES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-4431
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General,, and Trisha -Meggs Pate, Criminal Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed Appellant’s sentence for aggravated assault and possession of firearm by a convicted felon based on our en banc decision in Walton v. State, 106 So.3d 522. (Fla. 1st DCA 2013), which held that mandatory minimums under the 10-20-Life statute must be imposed consecutively regardless of whether the defendant possessed or discharged a firearm. However, the Florida Supreme Court quashed our decision in this ease and remanded for reconsideration.in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d. 989 (Fla. 2016). See Thornes v. State, 42 Fla. L. Weekly S680, 2017 WL 2303298 (Fla. May 26, 2017).

In Williams, the Court held that “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.” 186 So.3d at 993; accord Walton II, 208 So.3d at 64. But, the Court also held that “[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Williams, 186 So.3d at 993.

Williams did not directly address whether or not consecutive mandatory minimum sentences were permissible where, as here, the defendant only shot at one victim but was convicted of multiple firearm offenses arising out of the same crimmal episode. However, in Burns v. State, this court read Williams to permit the trial court to impose consecutive sentences in these circumstances. 212 So.3d 546, 546 (Fla. 1st DCA 2017) (“As Burns discharged a firearm striking a single victim and as both offenses arose out of a single criminal episode, consecutive sentences were permissible but not required.”); see also Wilson v. State, 2017 WL 1653435 (Fla. 1st DCA May 2, 2017).

Accordingly, based on Williams, we vacate Appellant’s sentence because the trial court believed based on our prior precedent that it was required to impose consecutive mandatory minimum sentences, and based on Burns, we remand for the trial court to exercise its discretion in deciding whether to impose concurrent or consecutive mandatory minimum sentences. Also, as we did in Burns, we certify conflict with Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016) (holding that concurrent sentences must be imposed under section 775.087(2) where a single shot is fired at only one person during a single criminal episode).

Sentence VACATED and REMANDED with directions.

WOLF, WETHERELL, and BILBREY, JJ., CONCUR

      Appellant was charged with separate counts of aggravated assault for shooting at two victims, but the jury only found him guilty of one of the aggravated assault counts.