text:
    Oba NEWBHARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-709
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017 Rehearing Denied December 29, 2017
    Carlos J. Martinez, Public Defender, and Marti Rothenberg and Jeffrey Paul DeSousa, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

Oba Newbhard was convicted by a jury of the crimes of attempted felony-murder, robbery with a firearm, and aggravated assault (two counts). In this appeal, Newbhard contends that the trial court erred in denying his motion for judgment of acquittal on the charge of attempted felony-murder because the State relied upon the same act to prove both the attempted felony-murder and the underlying robbery offense. We affirm, because the State established at trial that the attempted felony-murder included an intentional act that was not an essential element of the underlying robbery offense.

FACTS

The evidence at trial, in a light most favorable to upholding the jury's verdict, established the following:

On the night of March 21, 2012, David Montesino, his girlfriend Janette Garcia, and their six-year old daughter were leaving their third-floor apartment to get something to eat. Montesino began walking down the stairs with his daughter, with Garcia not far behind. When Montesino reached the bottom of the stairs and began walking towards his car, he was approached by Newbhard, who was pointing a gun at him and demanding Montesino hand over the gold chain around Montesino's neck. Montesino took several steps back, at which time Newbhard grabbed Montesino's daughter, pointed the gun to her head, and demanded that Montesino hand over his chain. When Montesino confronted Newbhard, Newbhard released the daughter.

By this point, Garcia had reached the bottom of the stairs, and Newbhard grabbed Garcia and pointed the gun to her head, again demanding that Montesino hand over his chain. Montesino agreed to give Newbhard his chain and, as he took off the chain and held it in his hand, Newbhard released Garcia.

Newbhard and Montesino continued to argue and, during this time, Montesino knocked Newbhard's hat off his head, allowing Montesino a clear view of Newbhard's face. Thereafter, Montesino began to run, but Newbhard shot Montesino twice-once in the hand and once in the leg. After Montesino was shot, and while still running away from Newbhard, Montesino threw his gold chain at Newbhard. Newbhard then fled the scene with Montesino's gold chain. Montesino survived his injuries, and both he and Garcia identified Newbhard as the perpetrator.

Newbhard was arrested and charged by amended information with, inter alia , armed robbery of Montesino; attempted felony-murder with a deadly weapon upon Montesino; aggravated assault with a firearm upon the daughter; and aggravated assault with a firearm upon Garcia.

Following a jury trial, Newbhard was convicted of all counts. The trial court adjudicated Newbhard guilty and sentenced him to life in prison on the armed robbery and the attempted felony-murder and to five years in prison for each aggravated assault, all sentences to run concurrently. This appeal follows.

ANALYSIS

We look first to the relevant language of the felony-murder and robbery statutes, as well as the allegations contained in the information. We then consider the evidence presented at trial to determine whether, as Newbhard asserts, the State relied upon the same intentional act in proving both the felony-murder and the underlying robbery offense.

The attempted felony-murder statue provides in relevant part:

Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree ....

§ 782.051(1), Fla. Stat. (2012).

The robbery statute provides in relevant part:

(1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
...
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
...
(3)(b) An act shall be deemed "in the course of the taking" if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

§ 812.13, Fla. Stat. (2012).

Count Six of the information, charging Newbhard with attempted felony-murder, alleged that Newbhard

did, by an act imminently dangerous to another and evincing a depraved mind regardless of human life, while engaged in the perpetration of, or in attempt to perpetrate , robbery , and did commit , aid, or abet an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another, to wit: DAVID MONTESINO, by SHOOTING AT HIM , and during the course of the commission of the offense, said defendant discharged a firearm or destructive device, and as a result of the discharge, death or great bodily harm was inflicted upon DAVID MONTESINO, a human being and in the commission of said felony, the defendant carried, displayed, used, threatened, or attempted to use a weapon, to wit: A FIREARM in violation of s. 782.051(1) and s. 775.087, Fla. Stat..... (Emphasis added).

Importantly, and as the highlighted portion above shows, the State alleged, as the underlying felony, robbery or attempted robbery.

Count Two, charging robbery, alleged that Newbhard

did unlawfully, by force, violence, assault, or putting in fear, take certain property, to wit: A NECKLACE AND/OR PENDANT..., the property of DAVID MONTESINO, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and/or during the course of the commission of the offense, said defendant discharged a firearm or destructive device, and as a result of the discharge, death or great bodily harm was inflicted upon DAVID MONTESINO....

In order to prove the crime of robbery, the State had to establish that "in the course of the taking there is the use of force, violence, assault, or putting in fear." § 812.13(1), Fla. Stat. To constitute robbery under the statute, it is not necessary to prove that the use of force was precisely contemporaneous with the taking itself. Instead the use of force will support a robbery conviction if it "occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it [the use of force, violence, assault or putting in fear] and the act of taking constitute a continuous series of acts or events." § 812.13(3)(b).

Newbhard asserts that the shooting of the firearm-i.e., the "intentional act" relied upon for the felony-murder charge-also constituted the "use of force, violence, assault or putting in fear" for the underlying robbery. Newbhard points to the fact that the robbery was not completed (that is, Montesino did not give up the gold chain) until after Newbhard shot Montesino. Therefore, Newbhard argues, the act of shooting Montesino with a firearm constituted the use of force "in the course of the taking" and therefore could not simultaneously be relied upon by the State as the intentional act necessary to support a conviction for felony-murder. Newbhard argues that his conviction and sentence for attempted felony-murder must therefore be reversed.

The State counters that the evidence at trial established that Newbhard engaged in multiple acts, any one of which could serve to satisfy the use of force element of robbery. The State is correct that the evidence at trial established that Newbhard engaged in multiple acts involving the use of force. For example:

• When Newbhard initially pointed the gun at Montesino and demanded that he hand over his gold chain;
• When Newbhard later grabbed Montesino's daughter, pointed the gun to her head, and demanded Montesino hand over his chain; and
• When Garcia reached the bottom of the stairs, Newbhard grabbed Garcia, pointed the gun to her head, and demanded Montesino hand over his chain.

Any one of these acts, standing alone, was sufficient to satisfy the robbery statute's requirement that "in the course of the taking there is the use of force, violence, assault, or putting in fear."

The infirmity in Newbhard's argument is that it overlooks one important point: in order to prove attempted felony-murder, the State was not required to establish that Newbhard successfully completed the underlying robbery; rather, the attempted felony-murder offense could be established by proof that Newbhard committed or attempted to commit the underlying robbery. See § 782.051(1), Fla. Stat. (2012) (providing: "Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3)....").

Thus, in establishing the crime of attempted felony-murder, the use of force element of the underlying felony (robbery or attempted robbery) was established by proof that Newbhard pointed a gun at Montesino and demanded his gold chain; or by proof that Newbhard grabbed the daughter and pointed a gun to her head and demanded the chain; or by proof that Newbhard grabbed Garcia and pointed a gun to her head and demanded the chain. The fact that Newbhard did not succeed in obtaining the chain as a result of any one of these acts is irrelevant to proof of the attempted robbery as the underlying offense of attempted felony-murder.

In similar fashion, the fact that Newbhard later used force, violence, assault or putting in fear against Montesino-by shooting Montesino and thereafter obtaining possession of the gold chain-is not essential to proving that Newbhard, while attempting to perpetrate a robbery, committed the additional intentional act of shooting Montesino.

Newbhard relies for his position on Milton v. State, 161 So.3d 1245 (Fla. 2014). In Milton, the defendant fired multiple gun shots at a crowd of people standing in front of a house. The defendant was charged with, inter alia , three counts of attempted felony-murder (involving three separate victims), and the underlying felony alleged for each of these counts was attempted second-degree murder. For each of these counts, the same individual constituted the victim of both the attempted felony-murder and the underlying attempted second-degree murder. Id. at 1246. The State alleged that the intentional act-which could have resulted in each victim's death but was not an essential element of the underlying attempted second-degree murder-was Milton's act of discharging a firearm. Id. at 1247. Relevant to our discussion, Milton was convicted of three counts of attempted felony-murder. This court affirmed those convictions.

On appeal to the Florida Supreme Court, the defendant in Milton argued that because the discharge of a firearm was the only act that could satisfy an essential element of the attempted second-degree murder (intentionally committing an act that could have resulted, but did not result in, the victim's death), this same act could not also be relied upon as the "intentional act" necessary to prove the attempted felony-murder.

The State countered that because the defendant fired multiple gun shots, only the initial shot was an essential element of the underlying attempted second-degree murder, and the subsequent shots fired by Milton were not an essential element of the underlying felony. The Supreme Court rejected the State's argument, holding that "Milton's single act of discharging a firearm did not satisfy the 'intentional act' element of attempted felony murder, as it was an essential element of the underlying attempted second-degree murder." Id. at 1250. The Court vacated the attempted felony-murder conviction.

Milton is distinguishable, given that the underlying felony in that case was attempted second-degree murder, and given the Court's determination that the multiple discharges of the firearm constituted a single act. Under those particular facts, the act of discharge was an essential element of both the attempted felony murder and the attempted second-degree murder. No such facts or circumstances are present in the instant case.

Newbhard's reliance on Coicou v. State, 867 So.2d 409 (Fla. 3d DCA 2003) (quashed on other grounds, 39 So.3d 237 (Fla. 2010) ), is similarly misplaced. In Coicou, a meeting was arranged at which an individual named Artis was going to buy cocaine from Coicou. When the two met up, Artis handed his money to Coicou. After counting the money, Coicou showed Artis the cocaine. When Artis asked to sample the drugs, Coicou pulled out a gun, shot Artis, and left the scene with the buyer's money. Artis survived, and Coicou was charged with attempted first-degree felony-murder. The underlying felony alleged was robbery. Coicou was convicted and, on appeal, this court reversed the conviction for attempted first-degree felony murder, holding:

Here, Coicou took Artis' money. Artis testified that he voluntarily handed the money to Coicou. The use of force occurred after Artis handed the money to Coicou The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1). It follows then that the robbery offense could not also be considered for the attempted felony murder charge. Without this additional proof of force, the State failed to prove the main charge against Coicou, the attempted felony murder charge. Thus, the trial court erred in denying Coicou's motion for judgment of acquittal.
(Internal citations omitted.)

In Coicou, a single act of force was used to effectuate both the robbery and the attempted murder. Here, by contrast, the defendant engaged in a separate and discrete use of force, violence, assault or putting in fear against three different individuals in attempting to commit the underlying robbery.

The instant case is instead analogous to Williams v. State, 182 So.3d 11 (Fla. 3d DCA 2015) (en banc), in which we held, on facts and charges indistinguishable in all relevant respects to the instant case, that "the later act of shooting the victim in the abdomen is an intentional act separate and distinct from that of pointing the firearm at the victim's head and demanding that she hand over her bag." Id. at 15.

As in Williams, Newbhard's actions of pointing the gun at Montesino and demanding the gold chain; later grabbing the daughter and pointing the gun at her head while demanding the chain; and still later then turning the gun on Garcia while demanding the chain, are separate and distinct acts, any one of which would alone suffice to establish the use of force element for the underlying attempted robbery. The fact that Newbhard later shot Montesino, and by the use of such force was able to successfully complete the robbery, did not serve to convert that subsequent act of shooting into an essential element of the underlying attempted robbery.

Affirmed.

      Newbhard was also charged with possession of a firearm by a convicted felon. The court severed that count for trial and, following the trial and convictions on the above-described counts, Newbhard entered a plea to this remaining charge and was sentenced to a three-year mandatory minimum sentence, to run concurrent with the sentences for the other counts.

      Robbery is an enumerated felony. See § 782.04(3)(d), Fla. Stat. (2012).

      To adopt Newbhard's reasoning would appear to produce this anomalous result: where the defendant managed to successfully complete the robbery and obtain the property by shooting the victim, the defendant could not be convicted of attempted felony-murder. However if, even after shooting the victim, the defendant was still unable to obtain the victim's property, the defendant could be convicted of attempted felony-murder.

      See State v. Florida, 894 So.2d 941, 945-46 (Fla. 2005) (receded from on other grounds by Valdes v. State, 3 So.3d 1067 (Fla. 2009) ) (holding that an essential element of attempted second-degree murder is that "the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone").


source: Caselaw Access Project

author: LUCK, J.

license: Public Domain

text:
    Carlos Jose GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1216
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017 Rehearing Denied January 19, 2018
    Jonathan Arias, for appellant.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LUCK and LINDSEY, JJ.
   LUCK, J.

Carlos Jose Garcia appeals the trial court's order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct his illegal habitual violent felony offender sentence. We affirm.

In 1995, Garcia pleaded guilty to committing aggravated assault with a firearm, and was sentenced to probation. While on probation, in 1996, Garcia committed armed robbery. A jury found Garcia guilty of the armed robbery charge, and he was sentenced, in 1999, to forty years in state prison, with a fifteen year minimum mandatory sentence, as an habitual violent felony offender.

Garcia contends that his habitual violent felony offender designation was illegal because his 1995 aggravated assault conviction could not be used as a qualifying offense to enhance his sentence. Garcia points to section 775.084(1)(b)(2)(a), Fla. Stat. (Supp. 1998), which provided that the trial court may impose an extended term of imprisonment if the court found the defendant committed his felony while serving "a prison sentence or other commitment."

His 1995 probation sentence, Garcia argues, did not qualify as "a prison sentence or other commitment," and therefore, could not serve as a basis to enhance his 1999 armed robbery sentence. See Hightower v. State, 630 So.2d 1220, 1221 (Fla. 2d DCA 1994) ("[I]f community control cannot be included in the definition of 'other commitment,' then probation, which is a less restrictive form of control, also should not be included.").

But as the trial court explained in its well-reasoned order, Garcia ignored the next sentence in the habitual violent felony offender statute. Section 775.084(1)(b)(2)(b) provided that the defendant's sentence also may be enhanced if his felony was committed "[w]ithin 5 years of the date of the conviction" of an earlier qualifying prior felony. § 775.084(1)(b)(2)(b), Fla. Stat. (Supp. 1998). The complete provision read:

"Habitual violent felony offender" means a defendant for whom the court may impose an extended term of imprisonment ... if it finds that ....
The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony; or
b. Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant's release from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later.

Id. § 775.084(1)(b) (emphasis added). That is, the defendant's sentence may be enhanced if he committed his most recent felony: (a) while serving "a prison sentence or other commitment"; or (b) within five years of a qualifying prior felony. (Aggravated assault was a qualifying prior felony. Id. § 775.084(1)(b)(1)(g).)

Garcia's 1995 aggravated assault probation sentence did not count as a "prior sentence or other commitment," but it did count as a qualifying prior felony committed within five years of the armed robbery. Unlike the Hightower defendant, who did not qualify under either subsection of the habitual felony offender statute, Garcia's sentence was due to be enhanced under section 775.084(1)(b)(2)(b) because he had committed aggravated assault less than five years earlier, even if he didn't qualify for the enhancement under subsection (a). See Hightower, 630 So.2d at 1221 ("Because Hightower did not commit the present felony within five years of his 1984 conviction, we reverse the habitual violent felony offender sentence and remand for resentencing within the guidelines.").

In his initial brief, Garcia also contends that his habitual violent felony offender sentence was illegal because the 1995 probation sentence could not be counted as a "conviction" for purposes of section 775.084(1)(b)(2)(b). Because this issue was raised for the first time on appeal, we decline to address it. See Hutchinson v. State, 17 So.3d 696, 703 n.5 (Fla. 2009) ("Even if we were to accept Hutchinson's contention that he is actually arguing ineffectiveness due to trial counsel's failure to present evidence of his innocence to the jury, such a claim is not cognizable on this appeal because it is being raised for the first time."); Connor v. State, 979 So.2d 852, 866 (Fla. 2007) ("This confrontation issue was not raised at the trial level and was not raised in the 3.851 motion. Because the issue may not be heard for the first time on appeal of a postconviction motion, we deny relief on this issue.");

Carter v. State, 43 So.3d 907, 908 (Fla. 3d DCA 2010) ("We decline to address the ineffective assistance of counsel issue because it was not raised in the court below."). But even if we did, we would reject Garcia's argument because the habitual violent felony offender statute treated a probation sentence as a prior conviction where the defendant, like Garcia, committed his most recent felony while on probation. See § 775.084(2), Fla. Stat. (Supp. 1998) ("For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which the person is to be sentenced was committed during such period of probation or community control."). In Render v. State, 742 So.2d 503 (Fla. 3d DCA 1999), the defendant raised the same argument that "his prior grand theft conviction could not be used for habitualizing him because he had been placed on probation" (and his probation had expired). Id. at 504. We held that the "grand theft conviction was properly treated as a predicate offense by the trial court" because "there was no withholding of adjudication. Appellant was adjudicated guilty." Id. Here, too, Garcia was adjudicated guilty of aggravated assault with a firearm and placed on probation within five years of his armed robbery conviction.

The trial court properly denied Garcia's motion to correct his illegal sentence.

Affirmed.

      This part of section 775.084 has since been amended.


author: PER CURIAM.

text:
    Michael Christopher REID, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-0536
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
    ON MOTION FOR CLARIFICATION
   PER CURIAM.

Upon review of the appellant's motion for clarification, we withdraw our opinion issued in this case on November 1, 2017 and replace it with the opinion which follows.

Affirmed without prejudice to appellant's raising a claim of ineffective assistance of trial counsel in an appropriate Rule 3.850 motion. See Adderly v. State, 132 So.3d 1234 (Fla. 3d DCA 2014) ; Davis v. State, 25 So.3d 1282 (Fla. 3d DCA 2010) ; Taylor v. State, 848 So.2d 435 (Fla. 3d DCA 2003).


author: LAGOA, J. EMAS, J., dissenting.

text:
    K.M., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 3D16-23
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Moyle Law Firm, P.A., and Karen A. Putnal, Jon C. Moyle, and Robert A. Weiss, (Tallahassee), for appellant.
    Jay Patrick Reynolds, Chief Litigation Counsel (Prosecution Services Unit), and Nichole C. Geary, General Counsel (Tallahassee), for appellee.
    Before LAGOA, EMAS, and LOGUE, JJ.
   LAGOA, J.

Appellant, K.M., seeks reversal of a final administrative order dismissing K.M.'s petition for a formal administrative hearing. Because K.M. would not be "substantially affected" by the Department of Health's repeal of Rule 64C-4.003 of the Florida Administrative Code, we find that the administrative law judge did not err in determining that the Division of Administrative Hearings lacked jurisdiction to rule on the merits of K.M.'s petition. K.M. does not have standing under section 120.56(1)(a), Florida Statutes (2015), to assert her challenge to the Department of Health's proposed repeal. Accordingly, we affirm the order dismissing the petition for lack of jurisdiction. This opinion does not address the merits of K.M.'s case.

I. FACTUAL AND PROCEDURAL HISTORY

On July 29, 2015, the Department of Health ("DOH"), filed a Notice of Proposed Rule for the purpose of repealing Rule 64C-4.003 of the Florida Administrative Code (the "Rule"). The DOH summarized the Rule as one that required pediatric cardiac facilities approved by Children's Medical Services ("CMS") to comply with the CMS Pediatric Cardiac Facilities Standards mandated by the Rule and to submit a number of forms that were adopted by the Rule. The Rule, titled "Diagnostic and Treatment Facilities or Services-Specific," provides:

(1) CMS Pediatric Cardiac Facilities. CMS Headquarters approves pediatric cardiac facilities for the CMS Network on a statewide basis upon consideration of the recommendation of the Cardiac Subcommittee of the CMS Network Advisory Council. CMS approved pediatric cardiac facilities must comply with the CMS Pediatric Cardiac Facilities Standards, October 2012 .... CMS approved pediatric cardiac facilities must collect and submit quality assurance data annually [using the prescribed forms] ....
(2) CMS Cardiac Regional and Satellite Clinics. CMS Headquarters approves regional and satellite cardiac clinics for the CMS Network on a statewide basis upon consideration of the recommendation of the Cardiac Subcommittee of the CMS Network Advisory Council. CMS regional and satellite clinics must comply with the CMS Cardiac Regional and Satellite Clinic Standards, October 2012 ....
(3) The standards and forms are incorporated herein by reference and are available from CMS Headquarters, 4052 Bald Cypress Way, Bin A06, Tallahassee, FL 32399-1707.

Fla. Admin. Code R. 64C-4.003 (2015) (emphasis added). The DOH sought to repeal the Rule because, according to the DOH, the Rule's regulation of pediatric care facilities exceeded the DOH's statutory authority.

Florida's CMS program provides financial assistance for medically necessary services-similar to the benefits available under Medicaid-to children with special health care needs who meet the program's eligibility requirements. The DOH reimburses health care providers for services rendered through the CMS network, a statewide managed system of care in which providers may participate under contract with the program. In order to receive reimbursement under the CMS program, providers and facilities must be credentialed by the DOH.

K.M., a CMS beneficiary, suffers from a serious heart condition requiring pediatric cardiac services. K.M. has received such services from participating CMS providers, including CMS-approved pediatric cardiac facilities that currently must comply with the Rule. K.M. will likely require future pediatric cardiac care from CMS-approved providers, including facilities currently regulated by the Rule.

On October 22, 2015, K.M. filed a Petition for Determination of Invalidity of Proposed Rule (the "Petition") with the Division of Administrative Hearings pursuant to section 120.56(2), Florida Statutes (2015). K.M. alleged that the DOH's proposed repeal of the Rule was an invalid exercise of delegated legislative authority under Florida's Administrative Procedure Act and would reduce the quality of care available within the CMS program.

The final hearing was held on November 20, 2015. K.M. called two pediatric cardiologists-Louis B. St. Petery, Jr. ("Dr. St. Petery") and Ira H. Gessner ("Dr. Gessner")-to testify. Dr. St. Petery testified regarding K.M.'s medical condition, diagnosis, prognosis, and treatment, including K.M.'s need for additional cardiac surgery and diagnostic services. Although not offered by K.M. to support K.M.'s standing argument, Dr. St. Petery concluded his testimony with his opinion that the quality of care provided at CMS clinics was related to the Rule's volume requirements for procedures performed in regional and satellite clinics.

Dr. Gessner, who currently serves on the CMS Cardiac Technical Advisory Panel and was a statewide consultant to the CMS program for pediatric cardiology services for over thirty-eight years, was identified by K.M. as the witness who would testify, for standing purposes, regarding the injury K.M. would suffer from repeal of the Rule. Dr. Gessner testified that the Rule's reporting requirement was "meaningful" with respect to assuring quality in programs certified by the CMS pediatric cardiac services program. Dr. Gessner also testified that if the Rule were repealed, there was a "risk of changes in programs developing and continuing in a way that is not consistent with the current standards [and] would allow circumstances to exist within a given program that raise the potential for deterioration of aspects of a program ... as to make it risky for patients to be cared for within that program." Dr. Gessner further testified: "Now, this is-of course we don't expect people to behave badly simply because there are no standards. But we know that it is possible for a program to have individuals leave, be recruited to other institutions, or otherwise be without a particular component."

Following the testimony, the administrative law judge (the "ALJ") found that K.M. failed to prove the proposed deregulation of CMS-approved pediatric cardiac facilities would, in fact, have a real or immediate effect on the quality of care available through the CMS network. As such, the ALJ concluded that K.M. lacked standing to challenge the Rule's repeal and dismissed K.M.'s Petition for lack of jurisdiction. This appeal followed.

II. STANDARD OF REVIEW

In an appeal from a final administrative order, we review the ALJ's findings of fact to determine whether they are supported by competent, substantial evidence. Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009) (citing § 120.68(7)(b), Fla. Stat. (2004) ). "If an administrative law judge's final order depends on any fact found by the administrative law judge, the court shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact." § 120.68(10), Fla. Stat. (2015). However, "findings that are interpretations of relevant law are subject to a de novo review." Jacoby v. Fla. Bd. of Med., 917 So.2d 358, 359 (Fla. 1st DCA 2005) (citing Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002) ); accord Office of Ins. Regulation & Fin. Servs. Comm'n v. Secure Enters., LLC, 124 So.3d 332, 336 (Fla. 1st DCA 2013) ("Standing is a question of law subject to de novo review.").

III. ANALYSIS

Under the Administrative Procedure Act, "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." § 120.56(1)(a), Fla. Stat. (2015). As such, in order to have standing to challenge the validity of a rule or proposed rule, the party must be "substantially affected" by the rule. See, e.g., NAACP, Inc. v. Fla. Bd. of Regents, 863 So.2d 294, 296 (Fla. 2003) ; Sarnoff v. Fla. Dep't of Highway Safety & Motor Vehicles, 825 So.2d 351, 356 (Fla. 2002).

In Jacoby, the First District Court of Appeal held that a person is "substantially affected" by a rule if the petitioner has established: "(1) that the rule or policy will result in a real and immediate injury in fact, and (2) that the alleged interest is within the zone of interest to be protected or regulated." 917 So.2d at 360 ; accord Lanoue v. Fla. Dep't of Law Enforcement, 751 So.2d 94, 96 (Fla. 1st DCA 1999) ; Ward v. Bd. of Tr. of the Internal Improvement Tr. Fund, 651 So.2d 1236, 1237 (Fla. 4th DCA 1995). "Thus standing depends on the nature of the injury asserted and the purpose and scope of the administrative proceeding." Peace River, 18 So.3d at 1083. Petitioner bears the burden of establishing standing. Id. at 1084.

We find that K.M. does not meet the real and immediate injury prong of the "substantially affected" test. Although the Florida Supreme Court has noted that a petitioner need not demonstrate that it already has suffered actual harm in order to have standing in an administrative rule challenge proceeding, see NAACP, 863 So.2d at 300, the prospective injury asserted must not be the product of pure speculation and conjecture, see Ward, 651 So.2d at 1237 ; see, e.g., Prof'l Firefighters of Fla., Inc. v. Dep't of Health & Rehab. Servs., State of Fla., 396 So.2d 1194, 1196 (Fla. 1st DCA 1981). K.M. primarily relies on NAACP and Peace River to establish standing to challenge the DOH's proposed rule repeal. Both cases, however, are distinguishable.

In NAACP, a civil rights organization challenged proposed rule amendments eliminating "certain affirmative action policies by Florida's state universities." 863 So.2d at 295. Prior to the proposed rule amendments, all African-American applicants to state universities received a benefit in the admissions process not available to non-minority students; under the proposed amendments, African-Americans would be subject to the same admission standards as non-minorities. Id. at 299. The Court noted, for standing purposes, the " 'obvious impact' " of removing the advantage previously given to minority students and making " 'African-American students subject to the identical admissions standards as non-minority students.' " Id. (quoting NAACP, Inc. v. Fla. Bd. of Regents, 822 So.2d 1, 12 (Fla. 1st DCA 2002) (Browning, J., dissenting)). The Florida Supreme Court, therefore, held that the NAACP had shown a substantial effect on its members who were students sufficient to establish standing to challenge the proposed rule amendments. Id. The Court noted that a NAACP member did not need to show actual rejection of admission to a state university under the proposed new admission criteria before standing would be granted. Id. at 300.

In Peace River, a regional water supply authority, the Peace River/Manasota Regional Water Supply Authority (the "Authority"), tasked with supplying potable water to customers within its boundaries, had an existing legal right under a water use permit to withdraw water from the Peace River, and thereby an interest in both the quantity and quality of the water flowing into the river. 18 So.3d at 1083-84. In fact, the Peace River was the Authority's sole source of water. Id. at 1083. The Authority challenged the issuance of a permit to a phosphate mining company to mine alongside Horse Creek, a tributary of the Peace River. Id. at 1085-86. The Authority asserted that the mining activity could negatively affect the flow of Horse Creek into Peace River, thereby reducing the Authority's ability to withdraw water under its own water use permit. Id. at 1085. The ALJ dismissed the Authority's challenge for lack of standing, and the Second District Court of Appeal reversed. Id. at 1080-81. In finding standing, the Second District concluded that the Authority established with competent substantial evidence that it had a legal right to withdraw water from the Peace River and that right could reasonably be affected by the proposed mining activity's effect on the quantity and quality of the water flowing into Horse Creek and Peace River. Id. at 1084-85. The court noted that the Authority's ultimate failure to prove the harm would actually occur was a separate question from the threshold question of whether it could allege specific injuries to its rights. Id. at 1083. The court concluded that the Authority had established specific injury sufficient to establish standing. Id. at 1085.

In both NAACP and Peace River, the respective courts concluded that the petitioners alleged a specific injury to themselves that could reasonably result from the proposed administrative action, i.e., the elimination of affirmative action policies at state universities and the reduction of water flow and quality in the sole source of potable water. While not requiring a strict "but-for" relationship between the proposed administrative action and the alleged injury, the nexus between the two was readily apparent and did not depend upon conjecture or speculation.

In contrast, the record in this matter failed to establish the type of specific injury to K.M. sufficient to establish standing. Specifically, K.M. claims standing because repeal of the Rule will allegedly take away the benefit of quality pediatric cardiac care. Unlike NAACP, the repeal of the Rule, on its face, does not take away the benefit of quality cardiac care. Nor is it readily apparent that, in the absence of the Rule, CMS-approved facilities and clinics will stop providing quality pediatric cardiac services.

K.M., therefore, must rely on Dr. Gessner's testimony to establish that the provision of quality care could reasonably be affected by repeal of the Rule. Dr. Gessner's testimony, however, is too speculative on this issue to satisfy the specific injury requirement necessary to establish standing. Although Dr. Gessner testified that there was a risk the Rule repeal might lead to changes in pediatric cardiac programs that could potentially deteriorate certain aspects of a program, he immediately qualified that testimony with the statement that he did not expect physicians or facilities to lower their standards simply because of the Rule repeal. That contingent, qualified testimony about possible risks is a far cry from the connection between the administrative action and alleged injuries discussed in NAACP and Peace River.

In sum, Dr. Gessner's testimony stated possibilities resting on speculation and conjecture insufficient to satisfy the substantially affected test. See Secure Enters., 124 So.3d at 339 (concluding that the appellee failed to show "real or immediate" injury in fact where ALJ found rules and forms at issue would "likely cause" appellee economic injury). Because the record does not contain evidence sufficient to establish that the quality of future care K.M. might receive will be reasonably diminished by the Rule's repeal, we find that K.M. has not established injury sufficient to give her standing to challenge DOH's proposed repeal of the Rule.

IV. CONCLUSION

For the reasons stated, we find that K.M. fails to meet the "substantially affected" test and does not have standing to challenge DOH's repeal of the Rule. Accordingly, we affirm the Division of Administrative Hearing's final order dismissing K.M.'s Petition.

Affirmed.

LOGUE, J., concurs.

EMAS, J., dissenting.

I respectfully dissent. Applying our de novo standard of review, Office of Insurance Regulation and Financial Services Commission v. Secure Enterprises, LLC, 124 So.3d 332 (Fla. 1st DCA 2013), I conclude that K.M. has standing and that the order of dismissal should be reversed.

The ALJ's final order determined K.M. (and the other petitioners) had no standing, and therefore, that the ALJ was without jurisdiction to adjudicate the merits of the petition. Here is the relevant portion of that Final Order:

To have standing, therefore, Petitioners needed to prove that repeal of the Standards would be the proximate cause of a real or immediate diminution in the quality of cardiac care provided to CMS recipients. They did not succeed in carrying this burden ....
The notion ... that every facility in the CMS network would suddenly stop providing quality pediatric cardiac services immediately upon the repeal of the Standards rests on pure speculation-and is a little insulting to the health care professionals who personally deliver those services.
Such an imagined across-the-board loss of quality care is not reasonably foreseeable and cannot qualify as a real or immediate injury in fact for purposes of standing.

(Emphasis added.)

The ALJ concluded that K.M. "failed to prove ... that the proposed deregulation of CMS approved pediatric cardiac facilities would, in fact, have a real or immediate effect on the quality of care available through the CMS network." (Emphasis added.)

K.M. asserted below, and here on appeal, that she does have standing because she established: (1) she is a CMS program beneficiary; (2) she will require future pediatric cardiac medical care through CMS providers; (3) the Rule is necessary to (a) maintain and promote quality of care and (b) minimize the risk associated with the provision of pediatric cardiac medical care; and that (4) if the Rule is repealed, there is a reasonable likelihood of a material increase in the risk of morbidity and mortality for CMS beneficiaries receiving pediatric cardiac care through the program.

The majority bases its affirmance, in large part, upon what it characterizes as K.M.'s failure to present "evidence sufficient to establish that the quality of future care K.M. might receive will be reasonably diminished by the Rule's repeal." Maj. Op. at *12.

I respectfully dissent, because I believe the record below, and the unrebutted expert testimony, demonstrates the contrary. The CMS pediatric cardiac facilities standards provide, in part:

The Children's Medical Services pediatric cardiac facility approval process is a quality assurance process that ensures participating CMS Network cardiac facilities meet established minimum standards deemed necessary for provision of quality cardiac services to children with special healthcare needs.

(Emphasis added.)

The unrebutted testimony of K.M.'s two expert witnesses established that it was reasonably foreseeable that the elimination of the quality assurance process will a) hinder the ability of pediatric cardiac services providers to maintain the highest level of quality of care; and b) result in a material increase in the risk of morbidity and mortality associated with the provision of pediatric cardiac services. The experts based these opinions upon their experience with the CMS program, their participation in the development of the Rule and establishment of the standards, and the data collected during site visits and site reviews of CMS facilities. The collected data is entered into a Society of Thoracic Surgeons database, and the data is reviewed and evaluated to ensure that the existing program and participating providers within the State of Florida are functioning within the range of accepted morbidity and mortality rates established by national standards.

The general concept of standing requires K.M. "to demonstrate that [she] reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1083 (Fla. 2d DCA 2009) (quoting Hayes v. G'ship of Thompson, 952 So.2d 498, 505 (Fla. 2007) ).

The Florida Supreme Court has held that the "substantially affected" test is "so similar to the ["adversely affected"] standing requirement of the Federal Administrative Procedure Act, 5 U.S.C. § 702... that we are justified in looking to federal case law for guidance...." Florida Home Builders Ass'n v. Dep't of Labor and Emp't Sec., 412 So.2d 351, 353 n.5 (Fla. 1982). The United States Supreme Court's decision in Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), is therefore instructive on the standing issue before us:

The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.

(Emphasis added.) See also Florida Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998) (applying Sierra Club, 405 U.S. at 740, 92 S.Ct. 1361 ).

Importantly, the concept of standing for purposes of challenging proposed agency rule is broader than the traditional notion of standing to maintain a cause of action. Indeed, "section 120.54(4) 'was intended to create an opportunity for a citizen initiated check on rule making that exceeded delegated statutory authority....' " Dept. of Prof'l Reg., Bd. of Dentistry v. Fla. Dental Hygienist Ass'n, Inc., 612 So.2d 646, 652 (Fla. 1st DCA 1993) (quoting Patricia A. Dore, Access to Fla. Admin. Proceedings, 13 Fla. St. U.L.Rev. 965, 1014 (1986)). As our sister court acknowledged, "the legislature did not intend that the access requirements necessary to challenge a proposed rule be synonymous with the standing requirements for bringing an action at law." Fla. Dental Hygienist Ass'n Inc., 612 So.2d at 652. See also Rosenzweig v. Dep't of Transp., 979 So.2d 1050 (Fla. 1st DCA 2008).

In order to meet the "substantial interests" or "substantially affected" test, K.M. need not have already suffered an injury. NAACP Inc. v. Fla. Bd. of Regents, 863 So.2d 294, 300 (Fla. 2003). K.M. must establish that there is either an actual injury in fact or a real and immediate threat of direct injury. Village of Key Biscayne v. Dep't of Envtl. Prot., 206 So.3d 788, 791 (Fla. 3d DCA 2016). In satisfying this standard, K.M.'s injury "must not be based on pure speculation or conjecture." Lanoue v. Fla. Dep't of Law Enforcement, 751 So.2d 94, 97 (quoting Ward, 651 So.2d at 1237 ) (emphasis added).

The ALJ determined that the proof offered at the hearing was pure speculation and standing therefore could not be established:

The notion, therefore, that every facility in the CMS network would suddenly stop providing quality pediatric cardiac services immediately upon the repeal of the Standards rests on pure speculation-and is a little insulting to the health care professionals who personally deliver those services. Such an imagined across-the-board loss of quality care is not reasonably foreseeable and cannot qualify as a real or immediate injury in fact for purposes of standing.

The ALJ's analysis overstates K.M.'s burden and misstates K.M.'s premise for standing. K.M. and the petitioners did not seek to establish-nor were they required to establish-that "every facility in the CMS network would suddenly stop providing quality pediatric cardiac services immediately upon the repeal of the Standards." Rather, they sought to establish (and did establish, through the unrebutted testimony of their experts), that it was reasonably foreseeable that the elimination of the quality assurance process (as set forth in the Rule) could result in a material increase in the risk of morbidity and mortality associated with the provision of pediatric cardiac services. This showing was legally sufficient to confer standing on K.M.

In fact, one of the cases cited and discussed at length by the majority supports this very conclusion. In Peace River, 18 So.3d at 1084, the Second District reversed the order of the ALJ, holding that the petitioner, a regional water supply authority, had standing because it "offered unrebutted evidence that it had a substantial interest in the flow of Horse Creek and the Peace River and that this interest could reasonably be affected by [respondent's] proposed activities." K.M. met this standing threshold, and the ALJ had jurisdiction to address the merits of K.M.'s petition.

Because K.M. established, by competent and unrebutted testimony, and not upon pure speculation and conjecture, that her substantial interest "could reasonably be affected by" the proposed repeal of this Rule, K.M. demonstrated her standing to contest the proposed repeal of the Rule and I would reverse the final order dismissing K.M.'s petition for lack of jurisdiction.

For these reasons, I respectfully dissent.

      The Petition was filed by petitioners W.D., C.V., K.E., and K.M., all of whom are CMS beneficiaries requiring pediatric cardiac services from CMS-approved providers. Only K.M., however, seeks review of the final administrative order dismissing the Petition for lack of jurisdiction.

      While Dr. St. Petery opined that there was a relationship between the Rule's requirements and the quality of care provided, he did not testify that repeal would result in a diminution of quality, nor did he offer any data-or even anecdotal evidence-suggesting that K.M. might be at risk of receiving substandard care in the future if the Rule were repealed.

      Evaluation of this type of testimony often ultimately depends on a determination of a particular witness's credibility. Appellate courts are not permitted to substitute their judgment regarding witness credibility and the weight to be given to such evidence for that of the fact finder. See Peace River, 18 So.3d at 1082 ("This court 'shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact.' " (quoting § 120.68(10) )); Maynard v. Fla. Unemployment Appeals Comm'n, 609 So.2d 143, 145 (Fla. 4th DCA 1992) ("[T]he credibility of witnesses and testimony is a matter which falls solely within the purview of the ... finder of fact.").

      As a result, we do not need to consider whether K.M. falls "within the zone of interest to be protected or regulated." See Lanoue, 751 So.2d at 96-97 (stating that the "substantially affected" test is a two-prong test).

      Dr. Louis B. St. Petery has served as an approved CMS provider since 1974. Dr. Ira Gessner is a former member of the CMS Network Advisory Council who participated in the development of the Rule, served as a CMS statewide consultant for over 38 years and currently serves as a member of the CMS Cardiac Technical Advisory Panel.

      It is also worth noting that in Florida Home Builders Ass'n v. Dep't of Labor and Emp't Sec., 412 So.2d 351, 352-53 (Fla. 1982), the Florida Supreme Court observed: "Expansion of public access to the activities of governmental agencies was one of the major legislative purposes of the new Administrative Procedure Act." In the instant case, the majority's decision runs contrary to this legislative purpose of expanded public access.

      While this last statement may have been gratuitous, it is also a bit ironic. After all, if it is self-evident that health care professionals will always provide the very highest levels of care without the necessity of standards, then why would the legislature have perceived a need to establish the Children's Medical Services program, whose directive was to develop quality of care and service integration standards, and reporting requirements for health care providers who participate in the Children's Medical Services program? See § 391.071, Fla. Stat. (2015). Why would the Department of Health utilize its statutory power to establish CMS network standards and credentialing requirements for health care providers and health care services?
      More to the point, the existing rule at issue has, since 1977, provided that CMS-approved pediatric cardiac facilities must comply with the CMS Pediatric Cardiac Facilities Standards, which were established with the assistance and input of the CMS Cardiac Technical Advisory Panel, comprised of medical professionals, including pediatric cardiologists and pediatric cardiac surgeons. Why would this labyrinth of rules, statutes, standards and enforcement mechanisms be in place over the last four decades if, as the ALJ appears to conclude, health care professionals will undoubtedly continue to deliver the highest level of care even in the absence of these standards?


author: LOGUE, J.

text:
    R. J. REYNOLDS TOBACCO COMPANY, Petitioner, v. Barbara MORALES, Respondent.
    No. 3D17-2093
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    King & Spalding LLP, and William L. Durham II (Atlanta, GA); Scott Michael Edson (Washington, D.C.); Carlton Fields Jorden Burt, P.A., and Benjamine Reid, Jeffrey A. Cohen, and Douglas J. Chumbley, for petitioner.
    Gerson & Schwartz, P.A., and Philip M. Gerson, for respondent.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

R.J. Reynolds Tobacco Company seeks a writ of certiorari quashing an order in which the trial court rescinded its prior order allowing R.J. Reynolds to substitute Dr. Felix Torres for Dr. Myrna Bobet as its addiction expert in a new trial. The issue is whether this order is justified in light of the misconduct of the lawyer for R.J. Reynolds at the deposition of Dr. Torres. We find no error in the trial court's decision warranting certiorari and deny the petition.

Dr. Bobet was listed and testified as R.J. Reynolds's expert at the first trial of this matter. Following a mistrial for an unrelated reason, R.J. Reynolds moved the court to make the substitution because Dr. Bobet appeared at trial by videotape and was unable to appear in person, and R.J. Reynolds believed its relationship with Dr. Torres was such that he was more likely to appear at the new trial in person. R.J. Reynolds represented that Dr. Torres would testify to the same opinions offered by Dr. Bobet. The trial court granted the substitution but ordered R.J. Reynolds to assume the costs of Dr. Torres's deposition.

After Dr. Torres's telephonic deposition, the plaintiff below, Barbara Morales, moved to strike Dr. Torres as a witness due to R.J. Reynolds's misconduct during the deposition. In a meticulously detailed 42-page opinion which quotes extensively from the deposition, the trial court rescinded its prior order as a sanction for abusive discovery tactics.

Although the transcript of the deposition runs for only 232 pages, the trial court found that R.J. Reynolds's attorney made speaking objections or otherwise tried to influence Dr. Torres's testimony "on at least two hundred and thirty-five [235] occasions." Even after being warned by plaintiff's counsel, "if you coach the witness one more time I'm going to terminate the deposition and ask for relief," R.J. Reynolds's attorney continued to make speaking objections which appeared to be intended to steer Dr. Torres.

In fact, one-third of the way through the deposition, plaintiff's counsel, in apparent frustration, asked Dr. Torres whether he understood that the objections made by counsel for R.J. Reynolds were not intended to influence his answers to questions. R.J. Reynolds's attorney objected even to this question.

What is more, R.J. Reynolds's attorney then proceeded to openly coach Dr. Torres to consider her objections when framing answers to questions: "If I'm objecting to the form of the question, that means I think there's something wrong with the form of the question. So he [Dr. Torres] can ask you [plaintiff's counsel] to clarify it if he believes that there is something that he needs clarification for." R.J. Reynolds's lawyer continued, "So, I don't think you can just say that Dr. Torres should just ignore, you know objections and go ahead and answer the questions since I'm objecting that there's something wrong with your question." And thereafter Dr. Torres appears to have dutifully responded to speaking objections by asking for clarification or making evasive answers, even when the questions were fairly straightforward such as, "Dr. Torres, are there any benefits to a smoker from smoking cigarettes?"

Finally, counsel for R.J. Reynolds repeatedly instructed Dr. Torres to not answer questions. RJ Reynolds's attorney instructed Dr. Torres not to answer why he made changes to his notes that were produced to the opposing side. She also instructed him not to answer questions like the following:

• Well, when you see your patients, don't you conduct an examination?
• Does conducting a clinical examination assist you in formulating an opinion about whether or not a patient is addicted?
• Is it your opinion that a clinical examination of Barbara Morales by you was unnecessary in this case for you to formulate a reliable opinion?
• So you believe that there's no need or benefit to you as a clinician in formulating your opinion to actually examine Ms. Morales?

The plaintiff's counsel admonished R.J. Reynolds's counsel, "let me just say one more thing on this subject and all of the other instructions you've given the witness not to answer. And that is that I intend to move to strike the witness from testifying in this trial based on this. So I am asking you one final time to please consider that." Heedless of the warning, R.J. Reynolds's counsel continued to instruct the witness not to answer. The instruction to Dr. Torres to not answer these questions was a violation of Florida Rules of Civil Procedure 1.310(c) which provides "a party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under [ Rule 1.310 ] subdivision (d)."

Citing to the continuous speaking objections, the on-the-record coaching of the witness, and the improper instructions to not answer, the trial court expressly found that R.J. Reynolds's counsel "engaged in a willful design to obstruct discovery and influence the testimony of the expert."

R.J. Reynolds responds in part to Morales's petition by pointing out instances where the plaintiff's attorney may also have acted improperly, including his statement to R.J. Reynolds's counsel towards the end of the deposition: "I'm not going to argue with you, young lady." After R.J. Reynolds's counsel reprimanded him, the plaintiff's counsel responded, "Please, just let the witness answer the questions then."

Whether a momentary lapse or a conscious attempt to demean and intimidate, the plaintiff's attorney's reference to opposing counsel's age and gender was clearly unprofessional. It does not, however, excuse the conduct of R.J. Reynolds's lawyer. As we have done in the past, we decline to adopt the practice of allowing one party's misconduct to wipe the slate clean of the other party's misconduct:

In our view, it is no longer-if it ever was-acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious. We demean ourselves and the system of justice we serve when we permit this to occur.

Borden, Inc. v. Young, 479 So.2d 850, 851-52 (Fla. 3d DCA 1985) (refusing to hold that one party's unprofessional conduct excused the other party's unprofessional conduct).

Certiorari is an extraordinary writ. "To support a writ of certiorari, the petitioner must demonstrate that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on postjudgment appeal." Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804, 807 (Fla. 3d DCA 2014). Moreover, "[t]he required 'departure from the essential requirements of law' means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice." Chessler v. All Am. Semiconductor, Inc., 225 So.3d 849, 852 (Fla. 3d DCA 2016) (quoting Jones v. State, 477 So.2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially)). Given the trial court's well-reasoned and meticulously documented order, and our own review of Dr. Torres's deposition, we fail to find the type of essential illegality and gross miscarriage of justice that is the focus of certiorari.

Certiorari denied.


author: SUAREZ, J.

text:
    D.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2838
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   SUAREZ, J.

D.M., a juvenile, appeals from a withheld adjudication of delinquency on the charge of felony battery, and probation. We reverse the trial court's finding of great bodily harm, and affirm the trial court's denial of D.M.'s theory of self-defense.

The then-thirteen-year-old defendant D.M. was on the school bus sitting in front of the twelve-year-old victim L.M. and another middle school student. D.M. testified that someone behind him was tapping or hitting him on the back of his head repeatedly, tapping him repeatedly harder. D.M. turned around and the actual aggressor, who was sitting next to L.M., pointed to L.M. D.M. then hit L.M. in the jaw with his fist, got up and moved to another seat on the school bus. L.M. testified that he started to cry, and when he got home, one of his lower teeth fell out, and another was allegedly loosened. The State charged D.M. with felony battery.

L.M. and D.M. both testified at the trial. L.M. testified that the aggressor "tapped" D.M., and D.M. testified that the aggressor "hit" D.M. in the back of the head. The tooth that D.M. knocked loose from L.M.'s mouth turned out to be a baby tooth. The adult tooth grew in and filled the spot. L.M. did not seek medical care at the time of the incident, and he testified that his jaw was not swollen or sore, but just red.

The defense twice moved for judgment of dismissal, arguing that the evidence of the loss of a baby tooth did not support the element of felony battery requiring proof of "great bodily harm," but at best supported a charge of simple battery, a misdemeanor. The defense agreed that whether the defendant caused great bodily harm is typically a question of fact for the jury, but also argued that a jury's [or trial court's] finding of great bodily harm must be supported by competent, substantial evidence. The trial court denied the defense motions for judgment of dismissal, and at the end of argument, held the loss of the baby tooth to be great bodily harm, and found D.M. guilty of felony battery. The court withheld adjudication of delinquency and placed D.M. on probation "for the statutory maximum term with possibility of early termination." D.M. appeals.

Florida Statutes section 784.041 (2017) provides that a person commits felony battery if he or she: a) actually or intentionally touches or strikes another person against the will of the other; and b) causes great bodily harm, permanent disability, or permanent disfigurement. "Great bodily harm defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery...." Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974) ; E.A. v. State, 599 So.2d 251, 252 (Fla. 3d DCA 1992) (same); see also, Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003) (holding "great bodily harm" not established for aggravated battery charge where victim testified she was in pain and had burn marks when defendant shot her with a stun gun; the State presented no evidence that victim required medical treatment for her burns or suffered any lasting ill effects); C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000) (holding "great bodily harm" not established for aggravated battery where defendant stabbed victim two or three times with a fork, leaving victim with scratches, swelling and puncture marks for which victim did not receive medical treatment).

Under the facts presented in this appeal, the State failed to prove beyond a reasonable doubt that D.M. caused great bodily harm, permanent disability or permanent disfigurement, elements of the charge of felony battery. Although whether a defendant caused great bodily harm is a question of fact, that finding must be supported by competent substantial evidence, and here it is not. See, e.g., Melendez v. State, 718 So.2d 746, 747-48 (Fla. 1998) ("As long as the trial court's finding are supported by competent substantial evidence, 'this Court will not substitute its judgment for that of the trial court on questions of fact, ....' " (quoting Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997) )). The State emphasizes that the victim lost a tooth but diminishes the clear evidence that this was not a permanent, disfiguring injury. The trial transcript indicates that L.M.'s adult tooth had grown in without incident. L.M. did not see a doctor or a dentist in response to the incident, there was no evidence of lasting harm or permanent disfigurement-the record on appeal indicates that L.M.'s jaw was not swollen, and indeed, L.M. testified he could not even remember which baby tooth had been knocked out. Here, the loss of a baby tooth that has been replaced by the adult tooth, without more, demonstrates no great bodily injury, no permanent disability or disfigurement.

We are mindful that in moving for a judgment of dismissal, the movant (here, the defense) "admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence" Beasley v. State, 774 So.2d 649, 657 (Fla. 2000) (citing Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) ). When viewed in that light, if a rational trier of fact could find that the elements of the offense have been proven beyond a reasonable doubt, the evidence is sufficient to sustain the conviction and the motion should be denied. See A.P.R. v. State, 894 So.2d 282, 285 (Fla. 5th DCA 2005). Our standard of review on denial of a motion for judgment of dismissal is de novo. Applying that standard to these facts, we conclude that the evidence was insufficient as a matter of law to establish great bodily harm and sustain a conviction for felony battery. We therefore reverse and remand for discharge of the felony battery conviction, and for entry of simple misdemeanor battery, and for appropriate resentencing commensurate with this opinion. We affirm the trial court's denial of the defendant's theory of self-defense.

Reversed and remanded.

      The trial court concluded, "With regard to the issue at hand I have considered the arguments that the loss of a tooth, because it's a baby tooth, does not amount to great bodily harm, the statute reads great bodily harm or great bodily harm, permanent injury or permanent disfigurement. Does it not? And therefore I do find that loss of the baby tooth is, a loss of a tooth is a loss of a tooth, and under the facts presented I do find great bodily harm."

      This a case of simple battery at best. It really should not have gotten to the trial court at all, but should have been resolved by the school authorities and the parties.


author: SCALES, J.

text:
    940 LINCOLN ROAD ASSOCIATES LLC, et al., Appellants, v. 940 LINCOLN ROAD ENTERPRISES, INC., et al., Appellees.
    No. 3D16-2748
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellants.
    Foley & Lardner LLP, and William E. Davis, Mary Leslie Smith and Natalia M. Salas ; Schlesinger & Associates, P.A., and Michael J. Schlesinger and Joshua B. Bochner; Greenberg Traurig, P.A., and Julissa Rodriguez and Stephanie L. Varela, for appellees.
    Before SUAREZ, SCALES and LINDSEY, JJ.
   SCALES, J.

940 Lincoln Road Associates LLC and CA 947 Lincoln Road LLC (collectively "Buyers") appeal the grant of final summary judgment in favor of 940 Lincoln Road Enterprises, Inc., 947 Lincoln Road Investments, Inc., and Leon Zwick (collectively "Sellers") on Buyers' claims related to two failed commercial real estate deals. Buyers also appeal separate orders dissolving their lis pendens against the commercial properties that are the subject of the underlying action. For the following reasons, we affirm in all respects.

I. RELEVANT FACTS AND FACTUAL BACKGROUND

The relevant facts are not in dispute.

In May 2012, Buyers entered into agreements with Sellers to purchase two separate commercial properties located in the pedestrian Lincoln Road mall area of Miami Beach. When it became apparent that neither closing would take place as scheduled (on December 28, 2012 and January 7, 2013), Buyers exercised their contractual rights to terminate the subject purchase and sale agreements and received a return of their deposits. Both termination letters provided that Buyers were terminating the agreements because: (i) Sellers had not complied with certain conditions set forth in the agreements with respect to the removal of existing tenants prior to closing; and (ii) Sellers could not deliver clear title at closing because notices of lis pendens had been recorded against the subject properties by Zwick's sister, Bejla Miller, who had filed the two lis pendens in an action in the Miami-Dade Circuit Court, wherein she claimed an ownership interest in the subject properties.

Buyers claim that when they decided to terminate the subject purchase and sale agreements, Sellers' representatives had orally promised that Sellers would sell the subject properties to Buyers under the same terms and conditions, including price, but with a new closing date, "once the dust settled" from Bejla Miller's litigation (the "oral reset agreement"). The alleged oral reset agreement was neither referenced in the letters of termination, however, nor ever reduced to writing. In November 2013, in the case brought by Bejla Miller, the trial court entered final summary judgment in favor of Sellers. Sellers did not thereafter sell the subject properties to Buyers pursuant to the oral reset agreement. Instead, Sellers sold the properties to a third party, Richard Chera. There was evidence introduced below that Sellers had negotiated the sale of the subject properties to Chera prior to Buyers' termination of the May 2012 purchase and sale agreements, which, if true, would have been a violation of the exclusivity provision of the May 2012 purchase and sale agreements.

Several months after Buyers terminated the purchase and sale agreements, Buyers filed two nearly identical actions against Sellers, which were later consolidated, and filed notices of lis pendens against the subject properties. The Third Amended Complaints allege claims for specific performance (count I), declaratory relief (count II), injunctive relief (count III), fraud (count IV), fraud in the inducement (count V), negligent misrepresentation (count VI), rescission (count VII), and breach of contract (count VIII). All of the claims are based on the common allegations that: (i) Sellers had represented they could deliver clear and marketable title for the subject properties when Sellers knew they could not do so because of Bejla Miller's claim to an ownership interest in the properties; (ii) Sellers had negotiated the sale of the subject properties with Richard Chera while Sellers were still under contract with Buyers in violation of the May 2012 purchase and sale agreements' exclusivity provisions; and (iii) under the oral reset agreement, Sellers had agreed to sell the subject properties to Buyers after the lawsuit with Miller was resolved. Essentially, Buyers' complaints allege Buyers were fraudulently induced to terminate the contracts; Buyers seek to revoke Buyers' terminations and reinstate the contracts.

After holding a hearing on Sellers' motions for summary judgment, the trial court entered separate orders granting summary judgment in favor of Sellers on all claims. The trial court separately entered orders dissolving the lis pendens against each of the subject properties, and on November 20, 2016, entered a final judgment for Sellers which Buyers timely appealed.

II. ANALYSIS

Applying the de novo standard of review on appeal, we affirm. See Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009) ("The standard of review for summary judgment is de novo .... Additionally, a trial court's decision construing a contract presents an issue of law that is subject to the de novo standard of review.").

First, we find that final summary judgment was properly entered against Buyers on their claim for breach of contract (count VIII). As already stated, because Sellers had removed neither the properties' existing tenants nor Bejla Miller's lis pendens , Buyers expressly and unequivocally terminated the May 2012 purchase and sale agreements and received their deposits-as was their contractual right. By doing so, we agree with the trial court that Buyers selected their remedy under the default provision of the subject agreements. Because Buyers chose their contractual remedy to terminate and receive a return of their deposits, we agree with the trial court that Buyers affirmatively forfeited their right to bring the instant breach of contract action against Sellers.

As to counts I, II, III, V, VI, and VII-all of which sound in fraud and are based on the alleged oral reset agreement-we agree with the trial court that those claims must fail because of the statute of frauds. It is well settled that a party cannot avoid the writing requirement of the statute of frauds by reformulating what amounts to a breach of an oral contract claim into a fraud claim. See, e.g., Cohen v. Corbitt, 135 So.3d 527, 530 (Fla. 1st DCA 2014) ("Appellee cannot avoid the statute of frauds simply by couching her claim in terms of the tort of fraudulent misrepresentation rather than breach of an oral contract."); LynkUS Commc'ns, Inc. v. WebMD Corp., 965 So.2d 1161, 1166 (Fla. 2d DCA 2007) ("[U]nder the statute of frauds, 'an action for damages cannot be maintained on the ground of fraud in refusing to perform the [oral] contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.' " (quoting Canell v. Arcola Housing Corp., 65 So.2d 849, 851 (Fla. 1953) )); Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 721 (Fla. 3d DCA 1972) ("The Florida rule is that the statute of frauds may not be avoided by a suit for fraud based on oral representations[.]").

As to count IV-which was based on allegations that Sellers had misrepresented that they could deliver good and marketable title to Buyers-we agree with the trial court that this claim must fail because: (i) delivery of clear title was part of the express terms of the subject agreements; and (ii) there was no evidence that Sellers did not intend to comply with their contractual obligations to convey clear title at the time they entered into the subject agreements. See Alexander/Davis Props., Inc. v. Graham, 397 So.2d 699, 706 (Fla. 4th DCA 1981) ("As a general rule, fraud cannot be predicated upon a mere promise not performed. However, under certain circumstances, a promise may be actionable as fraud where it can be shown that the promissor had a specific intent not to perform the promise at the time the promise was made, and the other elements of fraud are established.") (citations omitted).

For these reasons, we affirm the orders on review granting final summary judgment in favor of Sellers. Final summary judgment having been properly entered, we also affirm the orders dissolving Buyers' lis pendens against the commercial properties that are the subject of this consolidated action.

Affirmed.

      The relevant portion of the subject agreements' exclusivity provision provides that "Seller shall not solicit, enter into any contract or negotiations ... regarding the Property with any other party commencing on the date hereof and continuing thereafter until the Closing or termination of this Agreement."

      The subject agreements provided that if Sellers could not deliver clear title to the subject properties at closing, Buyers had "the option of either (i) terminating this Agreement, in which event Escrow Agent shall pay the Deposit to Purchaser whereupon neither party shall have any further rights or obligations hereunder or (ii) accepting such title as Seller shall be able to convey, with a reduction of the Purchase Price ...." (Emphasis added). Similarly, the subject agreements provided that if Sellers could not satisfy the delivery conditions with respect the removal of existing tenants by the time of closing, Buyers "may terminate this Agreement upon written notice served on Seller on or before the Closing Date, in which event the Deposit, together with interest thereon but less than the actual amount of Rental Loss Reimbursement ... shall be refunded to Purchaser and thereafter this Agreement shall be deemed terminated and of no force or effect except for those provisions intended to survive Closing." (Emphasis added).

      The default provision of the purchase and sale agreements provided that, in the event the Sellers failed to cure any default in their obligations, Buyers' "(i) [had] the right to terminate this Agreement and receive the return of the Deposit, or (ii) [had] the right to have all remedies at law and in equity , including, without limitation, specific performance ...." (Emphasis added).


text:
    Vicken BEDOYAN and WPM Miami, Inc., Petitioners, v. Harout SAMRA, Respondent.
    No. 3D17-1382
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Gunster, and Angel A. Cortiñas and Jonathan H. Kaskel, for petitioners.
    Bilzin Sumberg Baena Price & Axelrod LLP, and Jose M. Ferrer and Desiree Fernandez, for respondent.
    Before SUAREZ, LOGUE and SCALES, JJ.
   SCALES, J.

In this petition for writ of certiorari, Vicken Bedoyan and WPM Miami, Inc., co-defendants below, argue that the trial court departed from the essential requirements of the law in denying their motion for directed verdict and renewed motion for directed verdict, where the jury entered a verdict in favor of Harout Samra, the plaintiff below, on liability at a bifurcated trial. In light of the jury verdict, and with a trial on damages pending, Samra propounded discovery requests that the petitioners argue seek information and communications that are protected by the accountant-client privilege. , Because the petitioners have not demonstrated irreparable harm that cannot be remedied in a plenary appeal following the trial on damages, we lack jurisdiction to hear, and therefore dismiss, the instant petition. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (recognizing that "a petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law").

Petition for writ of certiorari dismissed.

      In the liability portion of the case, the jury returned a verdict in favor of Samra finding that: (i) Samra and Bedoyan had formed a partnership in 2009; (ii) Bedoyan had breached the partnership agreement; and (iii) WPM Miami, Inc. was a partnership asset.

      Samra initially also sought communications that the petitioners argue are protected by the attorney-client privilege. Samra has since agreed not to seek any attorney-client communications as part of his discovery efforts. Therefore, only the accountant-client privilege is at issue here.

      It bears noting that, after the jury's verdict on liability, Bedoyan and WPM Miami, Inc. produced several hundred pages of documents from the accountant's file which, pursuant to the parties' agreed confidentiality order, may be viewed only by Samra's counsel and experts and no one else. In our view, the provisions of this agreed confidentiality order adequately protect the petitioners from the "cat out of the bag" discovery that the petitioners argue exposes them to irreparable harm. See, e.g., Bestechnologies, Inc. v. Trident Envtl. Sys., Inc., 681 So.2d 1175, 1177 (Fla. 2d DCA 1996) (denying certiorari when the trial court has, in the appellate court's view, taken reasonable steps to preserve confidentiality).

      We express no opinion as to the merits of the petitioners' claims that the trial court erred in denying their motion for directed verdict and renewed motion for directed verdict.


text:
    Lazar LEYBOVICH, et al., Appellants, v. SECUREALERT, INC., Appellee.
    No. 3D16-1337
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    Marshall Socarras Grant, P.L., and Joe M. Grant (Boca Raton); Cooney Trybus Kwavnick Peets, PLC, and Warren B. Kwavnick and Kelly Lenahan (Fort Lauderdale), for appellants.
    Philip D. Parrish, P.A., and Philip D. Parrish ; Wilson Elser Moskowitz Edelman & Dicker, and John Y. Benford (Orlando), for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

Lazar, Dovie and Ben Leybovich, the plaintiffs below, appeal an order granting final summary judgment in favor of SecureAlert, Inc., the defendant below, on their claim for breach of contract. The Leyboviches argue that: (i) the trial court's sua sponte reconsideration of SecureAlert's, Inc.'s motion for summary judgment violated their due process rights; (ii) the trial court erred, as a matter of law, in finding that their breach of contract action was barred by a release contained in a prior settlement agreement between the parties; and (iii) there are issues of material fact that must be resolved by a jury. Because we agree with the Leyboviches that material issues of fact preclude summary judgment, we reverse the order granting final summary judgment and remand for a trial.

A careful review of the appellate record reveals genuine issues of material fact as to whether: (i) the Leyboviches signed and delivered the December 2007 Stock Redemption Agreements - the agreements on which this breach of contract action is based - to SecureAlert; (ii) the Leyboviches executed and returned their respective stock certificates to SecureAlert pursuant to the December 2007 Stock Redemption Agreements; and (iii) the Leyboviches, by their conduct, are precluded from maintaining this breach of contract action under the doctrines of estoppel and waiver. While Lazar Leybovich's affidavit and interrogatory responses may be scant evidence on these issues, it is nevertheless sufficient evidence to raise issues of fact so as preclude entry of final summary judgment in favor of SecureAlert on any of these three grounds. See Piedra v. City of N. Bay Vill., 193 So.3d 48, 51 (Fla. 3d DCA 2016) ("If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed."); Carnes v. Fender, 936 So.2d 11, 14 (Fla. 4th DCA 2006) ("Such evidence is sufficient to constitute the scintilla of appreciable evidence required to defeat a motion for summary judgment.").

Accordingly, we reverse the final summary judgment entered in favor of SecureAlert.

Reversed and remanded.

      We need not, and therefore do not, reach the other appellate issues raised by the Leyboviches.


author: LINDSEY, J.

text:
    Brian S. KLEIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2123
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018
    Brian S. Klein, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   LINDSEY, J.

Brian S. Klein, pro se, appeals the denial of his motion, which among other things, requested to commence speedy trial. Because this is not an appealable order, we treat the notice of appeal and attachments thereto as a petition for writ of prohibition. See Bory v. State, 126 So.3d 266 (Fla. 3d DCA 2010) (treating appeal of trial court's denial of a motion seeking commencement of speedy trial as a petition for writ of prohibition); Schuty v. State, 281 So.2d 507, 507 (Fla. 1st DCA 1973) (treating appeal from denial of discharge on speedy grounds as writ of prohibition). For the reasons set forth below, we deny the petition.

Klein is serving a sentence at the Graham Correctional Center in Hillsboro, Illinois following his conviction in Illinois state court. According to Klein, he was convicted on June 20, 2016 in Dupage County, Illinois for possession of a stolen motor vehicle and sentenced to eight years. In April of 2017, Klein sent a letter to the trial court in the Sixteenth Judicial Circuit in and for Monroe County, Florida seeking the resolution of an outstanding warrant in the Sixteenth Circuit for a violation of probation. Three months later, Klein wrote a second letter specifically requesting dismissal of the warrant. In his letters, Klein explained that he seeks to gain admittance to a rehabilitative facility run by the Illinois Department of Corrections and that one of the criteria for the program is that there can be no outstanding warrants. Klein then filed a motion entitled Motion to Demand Speedy Trial and/or to Quash Warrant. In the motion, Klein alleged that there is a charge against him for a violation of probation in a 1996 case for the offense of grand theft of a motor vehicle. Klein also asked that the warrant be quashed and the case dismissed as any prosecution would be outside the statute of limitations or, in the alternative, that any sentence in Florida run concurrent with his sentence in Illinois. The trial court entered an order denying the motion. This appeals follows.

Florida Rule of Criminal Procedure 3.191, which is the speedy trial rule, provides in part:

(e) Prisoners outside Jurisdiction . A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this state, is not entitled to the benefit of this rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person's return is filed with the court and served on the prosecutor. For these persons, the time period under subdivision (a) commences on the date the last act required under this subdivision occurs. For these persons the time period under subdivision (b) commences when the demand is filed so long as the acts required under this subdivision occur before the filing of the demand. If the acts required under this subdivision do not precede the filing of the demand, the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing in this rule shall affect a prisoner's right to speedy trial under law.

Fla. R. Crim. P. 3.191(e). Pursuant to the plain language of Rule 3.191(e), Klein is not entitled to the benefit of Florida's speedy trial rule until he is returned to the jurisdiction of the State of Florida. See State v. Bivona, 496 So.2d 130, 132 (Fla. 1986) (interpreting an earlier version of Rule 3.191(e) to apply unqualified to those incarcerated outside of Florida, whether the individual is being held solely on Florida charges or on charges pending in the other state). Because Klein is incarcerated outside the jurisdiction of this state on charges unrelated to those pending in the Sixteenth Circuit in Florida, he must wait until he is returned to Florida to address the outstanding warrant for violation of probation. Until that occurs, he would not be eligible to seek relief under Florida Rule of Criminal Procedure 3.191(e).

In any event, irrespective of the lack of an available remedy to Klein based on his present location, the speedy trial rule does not apply to probation cases. See Gonzalez v. State, 447 So. 2d 381 (Fla. 3d DCA 1984) (internal citations omitted) ("The speedy trial rule does not apply to a proceeding to revoke probation. A probation revocation hearing is a sentencing function, not a trial. There is therefore no merit to the claim of speedy trial violations involving the revocation of probation.").

Accordingly, the trial court correctly denied Klein's motion demanding a speedy trial.

Petition denied.

      The trial court had previously sent a letter to Klein informing him that there was no record of the outstanding warrant being dismissed and advising that upon completion of his sentence in Illinois, arrangements would be made for the outstanding warrant to be served and for his return to the Sixteenth Circuit to address the violation of probation charge(s).


text:
    Vanderren ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1427
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Vanderren Robinson was convicted, after a jury trial, of two counts of armed robbery. On appeal, he challenges the imposition of a mandatory minimum sentence on each count. The State properly concedes that the trial court erred in imposing a mandatory minimum sentence on Count II because the information did not sufficiently allege that Robinson possessed a firearm during the commission of the offense. See § 775.087(2), Fla. Stat. (2015) ; Young v. State , 86 So.3d 541, 543 (Fla. 2d DCA 2012) ("[I]n order for a court to enhance a defendant's sentence based on section 775.087(2), the grounds for enhancement must be clearly charged in the information." (citing Adams v. State , 916 So.2d 36, 37 (Fla. 2d DCA 2005) )). We otherwise affirm.

On remand, the trial court shall strike the mandatory minimum sentence imposed on Count II. Robinson does not need to be present for resentencing.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

SAWAYA, EVANDER and WALLIS, JJ., concur.


text:
    Luiz QUEIROZ, et al., Appellants, v. BENTLEY BAY RETAIL, LLC, Appellee.
    No. 3D17-1604
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018
    Bernhard Law Firm PLLC, and Andrew J. Bernhard, for appellants.
    Kozyak Tropin & Throckmorton, LLP, and Javier A. Lopez, Dyanne E. Feinberg, and Stephanie Moncada Gomez, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LOGUE, J.

Appellants Luiz Queiroz and Karine Queiroz, seek review of the trial court's orders denying their motions to quash the service of process made upon them individually while they attended depositions in their capacities as corporate officers of Soho Bay Restaurant, LLC (Soho Bay), and entering sanctions against them. We reverse.

The appellee, Bentley Bay Retail, LLC, filed suit against four defendants: Soho Bay; Luiz Queiroz; Karine Queiroz; and Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A. (Katz Barron). Soho Bay was served via its manager, Max Heindl. Luiz and Karine Queiroz reside in Brazil and are corporate officers of Soho Bay. The sole count against Luiz and Karine Queiroz, individually, was for breach of personal guaranty.

Bentley Bay filed notices to take the depositions of Luiz and Karine Queiroz. Luiz and Karine Queiroz repeatedly tried to fend off these depositions. First, they argued that immigration issues made it unduly burdensome for them to appear in the United States. Then they argued they could not be deposed in Brazil. Ultimately, the trial court had to order them to "appear for deposition in their corporate capacity." Following a motion for reconsideration, the trial court again ordered them to appear for deposition. Luiz and Karine Queiroz then agreed to come to Florida to be deposed. At the depositions, Luiz and Karine Queiroz were served with suit in their individual capacities. They moved to quash service, arguing they were immune from service of process because they were appearing in the jurisdiction to be deposed in their corporate capacities. The trial court denied the appellants' motion and this appeal followed.

Under Florida law, "[i]t is well established ... that witnesses and suitors in attendance in court outside of the territorial jurisdiction of their residence are immune from service of process while attending court and for a reasonable time before and after going to court and in returning to their homes." Murphy & Jordan, Inc. v. Ins. Co. of N. Am., 278 So.2d 296, 297 (Fla. 3d DCA 1973) (citation omitted).

Bentley Bay argues that this case falls within an exception to Murphy. " Murphy recognized that its rule of immunity to process does not apply when there is (1) identity of parties and (2) identity of issues." Id. (citations omitted). Here, however, there was no identity of the parties.

Luiz and Karine Queiroz were appearing in their corporate capacities. Bentley Bay wants to serve them in their individual capacity. For purposes of immunity from service of process, there is no identity of a person in their corporate capacity and individual capacity. Murphy, 278 So.2d at 296-97 (finding that the exception to the immunity rule did not apply where individual named defendants were served with process at a deposition where they appeared in their corporate capacities). This case therefore does not fall within the exception.

Bentley Bay, however, argues that Luiz and Karine Queiroz have sufficient minimum contacts to subject them to jurisdiction under Florida's long-arm statute, section 48.193, Florida Statutes. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). Whether Luiz and Karine Queiroz are subject to long-arm jurisdiction, an issue we do not decide, is irrelevant to our ruling. Even if they are subject to long-arm jurisdiction, Luiz and Karine Queiroz still need to be served. Under Murphy, they cannot be served while attending a court-ordered deposition.

Accordingly, we reverse the trial court's order denying the motion to quash service and to dismiss for lack of jurisdiction and remand for further proceedings consistent with this opinion. The sanctions order established Bentley Bay's entitlement to fees "expended on these matters." We reverse the sanctions order to the extent it awards sanctions specifically related to the motions to quash and dismiss for lack of service.

Reversed and remanded.

      Soho Bay and Katz Barron are not parties to this appeal.


author: ROTHENBERG, C.J.

text:
    Charles Richard RHINES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1479
    District Court of Appeal of Florida, Third District.
    January 03, 2018
    Charles Richard Rhines, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

The defendant below, Charles Richard Rhines, appeals his convictions and sentences entered following his plea of nolo contendere, arguing that his plea was involuntarily entered. As the defendant did not file a motion to withdraw his plea in the lower tribunal, asserting that his plea was involuntary, we are without jurisdiction to entertain this issue on direct appeal. See Fla. R. App. P. 9.140(b)(2)(A)(ii)(c) (stating that a defendant who pleads nolo contendere may directly appeal based on the ground that his plea is involuntary if the ground of involuntary plea is preserved by a motion to withdraw plea). Accordingly, we dismiss the defendant's appeal but do so without prejudice to allow the defendant to raise this issue in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850(a)(5). See Fla. R. Crim. P. 3.850(a)(5) (stating that a defendant who enters a plea of nolo contendere may file a motion for postconviction relief on the ground that the plea was involuntary).

Dismissed without prejudice.