author: B.L. THOMAS, C.J. KELSEY, J„

text:
    SURF WORKS, L.L.C., and Nadime Karan Kowkabany, Petitioners, v. CITY OF JACKSONVILLE BEACH, Respondent.
    CASE NO. 1D16-3312
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017
    Rehearing Denied December 18, 2017

      Paul M. Harden and Zachary Miller, Jacksonville; Steve Diebenow of Driver, McAfee, Peek & Hawthorne, Jacksonville, for Petitioners.
    ' Susan Smith Erdelyi of Marks Gray, P.A., Jacksonville, for Respondent.
   B.L. THOMAS, C.J.

Petitioners Surf Works, L.L.C. and Na-dime Karan Kowkabany petition this court for a writ of certiorari to quash the circuit court’s decision upholding Respondent Jacksonville Beach’s denial of Petitioners’ application for rezoning. Because the circuit court applied the incorrect law, which departed from the essential requirements of the law, we grant the petition.

Background

In 2014, Petitioners filed a rezoning application seeking to rezone the classification of property in Jacksonville Beach from Central Business District to Redevelopment District (“RD”). The property was the site of Mango’s Beach Bar and Grille, which Petitioners intended to redevelop into a mixed-use. facility of office and retail space, with the majority of the proposed development devoted to a two-story bar named “Surfer—the Bar.” Petitioners envisioned their proposed bar as becoming a destination for surfers and surf enthusiasts.

Petitioners’ application for rezoning specifically stated their intention to locate the proposed bar within 500 feet of two other alcoholic beverage establishments, contrary to Respondent’s Land Development Code (“Code”). (Mango’s Bar had been grandfathered into the location.) Petitioners acknowledged that their proposed bar was inconsistent with the provisions of section 34-407 of the Code, which imposed additional requirements for outdoor bars and restaurants, but noted their proposed deviations were permissible under the flexible RD zoning process. Under the Code, the expressed purpose of this RD zoning district is to

achieve a diversity of uses in a desirable environment through the application of jflexible land development standards and to foster creative design and planning practices in the Jacksonville Beach Downtown Redevelopment Area in order to encourage economic vitality and redevelopment, pursuant to the objectives of the Jacksonville Beach Community Redevelopment Plan.

Jacksonville Beach, Fla., Code § 34-347(a) (2015) (emphasis added).

This section of the Code outlines the procedure that must be followed to receive an RD zoning district classification. Specifically, it requires land to “receive approval of a preliminary development plan pursuant to the procedures and standards” of section 34-347(e). Jacksonville Beach, Fla., Code § 34-347(c)(l). To obtain this approval, an applicant must submit a proposed preliminary development plan to Respondent’s Planning and Development Director. Once the application is determined to be sufficient, it is further reviewed by Respondent’s Redevelopment Agency and Planning Commission, which recommends either approval, approval with conditions, or denial. The application and recommendations are then forwarded to the city council for a public hearing for final action on the preliminary development plan “pursuant to the standards in section ' 3$Si7(c)(3)(i).” Jacksonville Beach, Fla., Code § 34-347(e)(3)(h.)(2.) (emphasis added).

If the city council votes to approve the preliminary development plan, “[ijssuance of a development order for [the] preliminary development plan for'an RD zoning district classification shall constitute an amendment to the official zoning map to RD zoning district.” Jacksonville Beach, Fla., Code § 34-347(c)(3)(k.) (emphasis added),-

Petitioners’ application was reviewed once by Respondent’s Planning Commission arid twice by Respondent’s ’Community Redevelopment Agency under section 34-347(c) of the Code, and both' bodies recommended approval of the application. There was no indication that any additional provisions of the Code were factored into the review. Also significant here, Respondent’s Senior Planner noted that while Petitioners’ proposed development departed from the conventional zoning, criteria of sections 34-393 and 34-407(b), those “characteristics [wejre allowed to be addressed and modified from the normal standards as part of the RD zoning process, .which was created to allow flexibility from traditional standards in .an effort to. encourage redevelopment-activity in the Downtown Redevelopment Area.” Memoranda from Bill Mann, Senior Planner, Dep’t of Planning & Dev., to George D. Forbes, City Manager (July 7,2014; Sept. 9,2014).

Petitioners first presented their rezoning application to the city council on July 21, 2014. The mayor announced that Petitioners’ application would be considered pursuant to the standards of section 34-211 of the Code, which governed zoning atlas and code amendments. One of the standards contained 'in section 34-211(c) required ' the city council to ' consider whether the proposed rezoning conflicted with any other portion of the Code. Jacksonville Beach, Fla., Code § 34-211(c)(2) (2016). During the hearing, concerns were raised by citizens, the mayor, and city council members about Petitioners’ application and its inconsistencies with the Code. Petitioners were given a chance to work on the comments received from the city council, and another hearing was scheduled.

■ - At-the second hearing, the mayor again announced that Petitioners’ application would be considered pursuant to the standards contained in section 34-211. Petitioners asserted that significant efforts had been made to improve the application. Following substantial public comment, the city council ultimately voted to deny Pétition-ers’ rezoning application, citing concerns that the location was unsuitable. The city council stated that Petitioners' application was denied for four reasons, including: 1) its conflict with section 34-393, which requires a 500-foot separation between alcoholic beverage establishments; and 2) its conflict with section 34-407(b), which limits the amount of outdoor seating allowable for outdoor restaurants and bars. Both .of these grounds were acknowledged in Petitioners’ application, which, as noted above, sought approval under section 34-347(c)(3)(i.). '

Petitioners then filed a petition in the circuit court seeking certiorari review of the city council’s decision. Petitioners alleged that the city council’s decision was not supported by competent, substantial evidence and that the city council applied the wrong provisions of the Code in denying the application, and as such, departed from the essential requirements of law. Petitioners argued that their application was subject to the requirements of section 34-347 of the Code, which governs the RD zoning district.

Section 34—347(c) (3) (h.) (2.) provides: “After the public hearing, the city council shall approve, approve with conditions, or deny the application pursuant to the standards in section 8i-S47(c)(3)(i).” Jacksonville Beach, Fla., Code § 34-347(c)(3)(h.)(2.) (emphasis added). Petitioners argue here, as below, that this provision restricted the city council’s consideration solely to the criteria of section 34-347(c)(3)(i.), and because sections 34-393 and 34-407 were not expressly included in that criteria, the city council applied the incorrect law in relying on Petitioners’ noncompliance with those sections as a basis for denying their application.

In denying the petition below, the circuit court ruled that Petitioners’ RD zoning district application was governed by sections 34-201 through 34-211, As. stated above, one of the-factors listed in section 34-2U(c) requires the city .council to consider whether a . proposed zoning amendment conflicts with any portion of the Code. Accordingly, the court ruled that the city council’s denial of Petitioners’ application based on Petitioners’ noncompliance with sections 34-393 and 34-407 was supported by competent, substantial evidence, despite the fact that compliance with sections 34-393 and 34-407 was not among-the criteria enumerated by section 34-347(c)(3)(i.). The court found that none of the other reasons the city council gave for denying the application were supported by competent, substantial evidence.,

Analysis ■ ••

District courts should grant second-tier certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) (quoting Combs v. State, 436 So.2d 93, 96 (Fla. 1983)). Under this standard, the mere existence of legal error is insufficient to invoke the district court’s certiora-ri jurisdiction. Combs, 436 So.2d at 95. Likewise, “a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law.” State, Dep’t of Highway Safety v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011). Certio-rari' relief cannot be granted when the established law provides nó ' controlling precedent, “because ‘[without such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly established] principle of law.’ ” Id. (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000)).

District courts must be captious and prudent when exercising their jurisdiction to grant relief by writ of certiorari. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682-83 (Fla. 2000). Only where the circuit court failed to afford procedural due process or failed to apply the correct, law may such relief be granted by the district court: “The inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.... [TJhese two components are merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995). In Heggs, the supreme court cited to a “critic,” William A. Haddad, who commented that, in invoking its certiorari jurisdiction, a district court must consider the “gravity of the error and the adequacy of other relief.” Id. at 531 n.14 (citing William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 228 (1977)). Mr. Haddad continued to write that a district court can properly exercise this jurisdiction “to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.” Id. We hold that when the circuit court applied the incorrect law to uphold the city council’s decision to apply the provisions of section 34-211, rather than the provisions of section 34-347(c), such an error occurred here. This error resulted in a miscarriage of justice which departed from the essential requirements of law and deprived Petitioners of the lawful use of their property. When a party complies with the law in seeking to utilize the highest and best use of their property, and the governing authority refuses to apply the correct law to thwart the citizen so as to deprive him of the ability and right to enjoy the lawful highest and best use of his land, a miscarriage of justice has occurred.

At issue is which sections of the Code were applicable to Petitioners’ application seeking to rezone property to the RD zoning district. Petitioners argued below that section 34-347(c)(3)(i.) contained the applicable criteria; however, the circuit court found that the provisions of section 34-347 did not address rezonings, and Petitioners’ application was required to comply with the sections that did govern zoning amendments, namely, sections 34-201 through 34-211. On appeal, Petitioners argue that this finding departed from the essential requirements of law for various reasons. Pertinent to this court’s analysis is Petitioners’ argument that the circuit court ignored the plain meaning of the provisions of section 34-347, and thereby applied the incorrect law. See Rinker Materials Corp. v. City of N. Miami, 286 So.2d 552, 553 (Fla. 1973) (holding that the circuit court’s failure to apply the plain and ordinary meaning of the language of the ordinance was “a clear basis of conflict”).

City ordinances, like the Code sections at issue here, are subject to the same rules of construction as state statutes. Great Outdoors Trading, Inc. v. City of High Springs, 550 So.2d 483, 485 (Fla. 1st DCA 1989) (citing Rinker, 286 So.2d at 553). As with statutes, the first step when construing ordinances is “to discern and to give effect to the legislative will, since ‘intent is the essence of the law.’ ” Great Outdoors Trading, Inc., 550 So.2d at 485 (quoting City of Boca Raton v. Gidman, 440 So.2d 1277, 1281 (Fla. 1983)). Intent is derived primarily from a statute’s text; therefore, “ ‘to discern that intent [courts] must look first to the language of the statute and its plain meaning.’” Hill v. Davis, 70 So.3d 572, 575 (Fla. 2011) (quoting Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla. 2009)). The words of the ordinances must be given their “plain and ordinary meaning,” and “courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear the omission was inadvertent ....” Rinker Materials Corp., 286 So.2d at 553-54. Under the plain meaning rule, which is regarded as “‘the cardinal rule of statutory construction,’ ” if a court finds that the language of the statute is unambiguous, it should not resort to further construction or interpretation. Smith v. Crawford, 645 So.2d 513, 522 (Fla. 1st DCA 1994) (quoting Weber v. Dobbins, 616 So.2d 956, 958 (Fla. 1993)). Furthermore, to effectuate legislative intent, “[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) (emphasis in original).

Section 34-347, which specifically addresses RD zoning district applications, in no way requires that an application for a preliminary development plan for an RD zoning district classification also comply with the standards of section 34-211, but the circuit court found that Petitioners’ compliance with this section was required by the plain language of an unrelated section of the Code. The circuit court’s reasoning was that the plain language of section 34-347 did not address zoning amendments, while the plain language of sections 34-201 through 34-211 did; therefore, because Petitioners were seeking to rezone their land to the RD zoning district, their application was required to comply with sections 34-201 through 34-211. We hold that the circuit court overlooked the plain language of the specific and controlling provisions of section 34-347; and therefore applied the incorrect law. See Rinker Materials Corp., 286 So.2d at 553-54 (holding that the district court failed “to follow established deci-sional rules of statutory construction” when it failed to give to the ordinance “the plain and ordinary meaning of the words employed by the legislative body”).

Contrary to the circuit court’s ruling, section 34-347 does address zoning amendments. Section 34-347(c)(l) states that land must receive approval of a preliminary development plan before receiving an RD zoning district classification, and then prescribes the procedure to follow to obtain approval of the preliminary development plan. Even more explicit is subsection 34—347(c)(3)(k.), which provides: “Issuance of a development order for a preliminary development plan for an RD zoning district classification shall constitute an amendment to the official zoning map to RD zoning district.” Jacksonville' Beach, Fla., Code § 34-347(c)(3)(k.) (emphasis added). It is plain from the unambiguous language of these provisions that section 34-347 was precisely intended to encompass situations such as this where the applicant is seeking an RD zoning designation for land that is not already classified as RD. This conclusion is supported by the actions of Respondent’s planning staff, who reviewed Petitioners’ application pursuant to the procedures and standards prescribed by subsection 34-347(c), and importantly, did not follow the procedure contained in sections 34-201 through 34-211. And nor would they: It would be nonsensical to provide a detailed alternative zoning scheme designed to facilitate “economic vitality and redevelopment,” and then deny applications that met this criteria, solely because the application did not meet the criteria of a separate regulatory scheme applicable only to applications that did not seek approval under the RD alternative zoning process.

Additionally, the circuit court erroneously applied the statutory construction principle of in pari materia to find that the standards in section 34-211(c) applied to Petitioners’ application. The statutory construction rule of in pari materia requires provisions relating to the same subject to “‘be construed together and compared with each other;’ ” however, “[i]n contrast to the rule permitting in pari materia construction ... is the maxim-instructing that a specific statute controls over a general statute covering the same subject matter,” Cone v. State, Dep’t of Health, 886 So.2d 1007, 1010, 1012 (Fla. 1st DCA 2004) (quoting Smith, 645 So.2d at 522). Here, sections 34-201 through 34-211 provide a process fon amending the boundaries of the official zoning atlas, and section 34-211(c) provides the standards that must.be considered by the city council when deciding whether to adopt the amendment. Jacksonville Beach,,., Fla., Code §§ 34-201, 34-211(c), Meanwhile, section 34-347(c) provides a process for obtaining an RD zoning district classification and section 34-347(c)(3)(i.) provides the applicable standards. Therefore, while these sections all. address rezonings, only the specific procedures in section 34-347 apply when the applicant is seeking an RD zoning district classification, 'and .for this reason the RD-speeific standards in section 34—347(c)(3)(i.) control over the general standards contained in section 34~211(c).

For the foregoing reasons, we hold, that the circuit court’s order failed to apply the correct law when it found that Petitioners’ application was required to comply .with the .standards in section 34—211(c) rather than those contained in section 34-347(c)(3)(i.). Accordingly, we GRANT the petition for writ of certiorari and QUASH the circuit court’s decision denying certio-. rari relief,. -

RAY, J., CONCURS; KELSEY; J„ DISSENTS WITH OPINION. '

KELSEY, J„

dissenting.

,1 would deny the petition because the trial court applied the correct law. That is the only legal issue presented over which we have jurisdiction on second-tier eertio-rari review. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (holding that standard of review on second-tier certiorari is whether the lower tribunal “applied the correct law,” synonymous with “observing the' essential requirements of law”).

The Code.

The first “correct law”- is the Jacksonville Beach Land Development Code. The Code encompasses numerous articles, divisions, and sections related to various aspects of land development, including Article VII, Division 2, Section 34-347, entitled “Redevelopment District: RD.” The standards of section 34—347(c)(3)(i) include the adequacy and appropriateness of the land area; • compatibility with :other existing or proposed uses in the general vicinity -usage; and consistency of lot area, setbacks, parking, signage, landscaping, and environmental factors with the Jacksonville .Beach Community Redevelopment Plan. The next subsection, 34-347(c)(3)(j), expressly authorizes the city council to “impose such conditions ... that are necessary to accomplish the purposes of this section, this Code,' and the comprehensive plan,"

The Code as a. whole. relates to land development, and includes numerous specific provisions that on their face could apply to .the proposal at issue here. The Code sets forth generally applicable rules of construction and.definitions. Article VI on Development Review Procedures -applies “to every application for a development permit,” and a “development permit” is defined to include amendments to the RD zoning district. Other Code provisions outside of section 34-347 also apply to all zoning districts and all action by the City Council.

Rules of Construction.

The “correct law” is also the law governing interpretation of the Code. The Code is a municipal ordinance, and as such is subject to the general rules of statutory construction. Great Outdoors Trading, Inc. v. City of High Springs, 550 So.2d 483, 485 (Fla. 1st DCA 1989). The trial court was required to construe all parts of the Code together “in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id.

Trial Court’s Application of Correct Law.

The trial court was confronted with statutory construction of a local government ordinance. The two narrow legal' issues' before the trial court were (1) whether section’34-347 mandates that the Jacksonville Beach City Council approve rezoning requests for bars that violate other sections of the Code by being located within 500 feet of other bars and exceeding outdoor seating limitations; and (2) whether section 34-347 prohibits the Jacksonville Beach City Council from considering any other provision's of the Code when deciding whether to grant a request to rezone a property to the Redevelopment District category. To resolve those legal issues required the trial court to construe section 34-347 in light of its legal context within the entire Code. It is impossible to decide how section 34-347 interacts with the remainder of the Code without looking at the Code in its entirety. The “correct law” to be reviewed is the entire Code, construed according to governing principles of statutory construction. The trial court applied the correct law, and therefore we should deny the petition for writ of. certiorari,

This case is analogous to another recent local government land use decision in which the Third'.District denied certiorari. In DMB Inv. Tr. v. Islamorada, Village of Islands, 225 So.3d 312, 314 (Fla. 3d DCA 2017), the underlying merits issue was whether a property owner was required to obtain a permit'from the-Village, before installing a swim buoy system, in addition to, obtaining authorizations from both the Florida Department of Environmental Protection and the United States Army Corps of’Engineers. The property owner argued that one specific section of the Islamorada, Village of. Islands .Code, of Ordinances, .requiring approval only from the state and federal bodies, prevailed over more general sections of the Code governing shoreline environmental and development criteria and land use in general. Id. at 315. In pertinent-part, the circuit court affirmed the Village’s interpretation of a general Code provision as requiring a local-government permit for the .swim b.uoy system in addition to state and federal approval. Id. at 316.

On second-tier certiorari review, the Third District held that the circuit court correctly applied the law of statutory construction and properly analyzed both provisions of the Village Code -to- determine that, they were,not in conflict with .one another, but rather, could be harmonized. Id. at 318. Of particular relevance, here, the Third District noted that the court was required to “consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another.” Id. at 317 (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003)).

Similarly in. this Jacksonville Beach case, the trial court on appeal expressly held that “[rjelevant portions of the ordinance code applicable in this case constitute the correct law.” The trial court carefully reviewed as a whole the various provisions of the Land Development Code on which the parties relied, and arrived at a harmonizing construction consistent with the general rules of statutory interpretation. The trial court found competent, substantial evidence in support of the City Council’s decision (an issue beyond the scope of our second-tier certiorari review). The trial court applied the correct law, ending our analysis.

The Restrictiveness of the Writ.

Even if we were to conclude that the trial court applied the wrong law or applied the correct law incorrectly, we should deny certiorari because of the extremely narrow scope of the writ. Mere legal error is insufficient to invoke our certiorari jurisdiction. Combs v. State, 436 So.2d 93, 95 (Fla. 1983). We should grant second-tier certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” State, Dep’t of High. Safety & Motor Veh. v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011) (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010)). An overly narrow definition of what constitutes the “correct law” in second-tier certiorari analysis would expand the writ inappropriately. In this case, a local governing body vested with wide discretion over a local land-use decision exercised that discretion in a manner supported by the evidence and the law. The trial court applied appropriate rules of construction and scope of review to the narrow issues presented. It is not up to us to decide how a parcel of land in Jacksonville Beach should be used. Petitioners are free to address the factors that concerned the public and the City Council, and apply again, if they wish to do so. This is not a miscarriage of justice. Certiorari should be denied.

      . The ¡Planning Commission voted to conditionally apprové the application with the conditions, that 1) there be no live or amplified music in the outdoor bar areas, and '2) Petition'ers augment the second floor of the bar with architectural screen walls.

      . The '‘correct law” could also include the Jacksonville Beach Comprehensive Plan, Community Redevelopment Plan, and 2007 Vision Plan, but the parties do not raise those documents as among those that as a matter of law could make a difference here.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Deborah Jean MOULTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5416
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   ORDER RELINQUISHING JURISDICTION

VILLANTI, Judge.

Deborah Jean Moulton appeals her conviction and sentence for the reduced charge of principal to manslaughter with a firearm, contending that her due process rights were violated because the trial court did not make an independent determination that she had been restored to competency before it accepted her plea to the reduced charge. Because it is not clear that the trial court made an independent finding of competency, we relinquish jurisdiction for sixty days, as we recently did in Cramer v. State, 213 So.3d 1028 (Fla. 2d DCA 2017), for the trial court to conduct a new competency hearing.

Moulton’s competency was a recurring issue after she was arrested and charged with one count of principal to second-degree murder with a firearm in May 2014. She was adjudicated incompetent to proceed on October 9, 2014, but the court found her competency restored on January 7, 2015. Moulton was again adjudicated incompetent to proceed on May 6, 2015, On that date, she was committed to the Department of Children and Families (the Department) for treatment.

On August 6, 2015, the administrator of the Department’s treatment center forwarded a new competency evaluation report to the court. This report, authored by a staff psychologist and dated August 6, 2015, concluded that Moulton was then competent to proceed. The administrator of the treatment center requested that the court arrange for Moulton to be returned to Collier County for further proceedings.

On August 27, 2016, the trial court held a hearing on Moulton’s competence. The hearing began with the following:

THE COURT: Do you waive her presence?
MR. VERDERAMO (defense counsel): Yes, Judge.
THE COURT: Okay.
MR. VERDERAMO: Judge, I’ve prepared an order. Mr. Stewart (counsel for the State) has (inaudible) and has no objection.
THE COURT: So both of you are agreeing that at this point she has been restored to competency based on the report filed, and we can proceed; is that correct?
MR. VERDERAMO: Yes, Judge, that’s correct.
THE COURT: Okay. Now what has to be done in order to get this case ready for trial?

Counsel and the court then had a discussion concerning the timing of trial and various pretrial proceedings, which included scheduling an evaluation of Moulton in support of an insanity defense. Then, just before the hearing concluded, the following ensued:

MR. STEWART: ■ Oh,. and Judge, you’re finding her competent to proceed? •
THE COURT: Yes, I entered the order—
MR. STEWART: Okay.
THE COURT: —based on the information. Does that conclude the docket?

The order actually signed by the trial court states:

THIS MATTER having come before this Court for a determination of competency, and the Court having been advised in the premises on both the facts and the law respecting the said Motion, it is therefore:
ORDERED AND ADJUDGED that the aforesaid Motion is GRANTED.
Both parties agree the aforementioned Defendant is competent to proceed to .trial based upon the report dated August 6, 2015 by Armando Collado, Ph.D.

After she was adjudged competent, Moulton entered into a negotiated plea with the State to a reduced charge, and she was convicted and sentenced based on her plea. She now contends that the court’s acceptance of her plea violated due process because the court did not make an independent determination, that she had been restored to competency. ■

As an initial matter, this issue is properly before this court in this appeal even though Moulton did not file a motion seeking to withdraw her plea. The supreme court has held that a trial " court’s failure to comply with the requirements of Florida Rules of Criminal Procedure 3.210-3.212 regarding competency procedures constitutes a violation of due process. See Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014). Moreover, this court has held that a defendant who was adjudicated incompetent before entering a plea may raise the issue of an improper adjudication of competency on direct appeal even in the absence of a motion to withdraw the plea. See Shakes v. State, 185 So.3d 679, 683 (Fla. 2d DCA 2016) (quoting Ross v. State, 155 So.3d 1259, 1260 (Fla. 1st DCA 2015)). Hence, we address the issue on the merits.

Turning to those merits, this court summarized the law in this area in its discussion in Shakes.

“An individual who has been adjudicated incompetent is presumed to remain' incompetent until adjudicated competent to proceed by a court.” Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014) (quoting Jackson v. State, 880 So.2d 1241, 1242 (Fla. 1st DCA 2004)). Florida Rules of Criminal Procedure 3.210 through 3.212 “set forth the required competency hearing procedures for determining whether a defendant is competent to proceed or has been restored to competency.” Dougherty, 149 So.3d at 677. Rule 3.210(a) provides that “[a] person accused- of an offense or a violation of probation- or community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.” “[W]hen the court receives notice that a defendant has regained competence, the court shall hold a hearing to determine if a defendant is competent to proceed.” Roman v. State, 163 So.3d 749, 751 (Fla. 2d DCA 2015) (citing Jackson, 880 So.2d at 1242); Fla. R. Crim. P. 3.212(c). The trial court may take the testimony of court-appointed experts designated under rule 3.211, or where the parties and the trial court agree, the trial court “may decide the issue of competency on the basis of the written reports alone.” Dougherty, 149 So.3d at 677-78 (quoting Fowler v. State, 255 So.2d 513, 515 (Fla. 1971)); see Roman, 163 So.3d at 751 (“If the parties agree, the trial court can make its competency determination based solely on experts’ reports.”). The trial court is tasked with making an .independent legal determination regarding whether the defendant is competent, after considering the expert testimony or reports and other relevant factors. Dougherty, 149 So.3d at 678 (holding that defendant may not stipulate to ultimate issue of competency because trial court retains responsibility to determine • that-issue). “[I]f a trial court finds that a defendant is competent to proceed, it must enter a written order so finding.” .Id. ■

Shakes, 185 So.3d at 681 (alterations in original) (emphasis added). Hence, -while the trial court may rely on the written reports if the parties agree to that procedure, the court may not rely solely oh the parties’ stipulation to competency, and the record must be clear that the court has made an independent determination of the defendant’s competency. In qther words, punctilious compliance with the competency restoration procedures set forth in rules 3,210-3.212 is required.

Here, nothing in the' record unmistakably shows that the’ trial court made an independent determination of Moulton’s competency. The court did not consider the testimony of any experts at the hearing, and nothing in the record shows that the court reviewed and relied upon the report prepared by the psychologist from the treatment center. Cf. Merriell v. State, 169 So.3d 1287, 1288 (Fla. 1st DCA 2015) (finding the trial courts procedure sufficient when the court stated on the record that it had reviewed the competency evaluation report and specifically stated that it was finding the defendant competent to proceed); Molina v. State, 946 So.2d 1103, 1105 (Fla. 5th DCA 2006) (noting that the court may rely on only the written reports regarding the defendant’s competency if the parties agree to this procedure). The trial court’s statement that it had entered the order based on “the information,” made at the end of the hearing, is too vague to unequivocally show that the court reviewed and relied on the psychologist’s report rather than the parties’ agreement. Moreover, the trial court could not have made a determination of competency based on Moulton’s actions at the hearing because counsel had waived her appearance and she was not present. See Dougherty, 149 So.3d at 678 (noting that a court could disagree with expert’s reports based on other evidence such as the defendant’s courtroom behavior or attorney representations). Instead, the only indication in the record is that the trial court relied solely on the “agreement” of defense counsel and the State that Moulton was competent—a procedure which is not legally sufficient. See Roman v. State, 163 So.3d 749, 750-51 (Fla. 2d DCA 2015); see also Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016); S.B. v. State, 134 So.3d 528 (Fla. 4th DCA 2014). Because we cannot presume that proper findings were made sub silencio and because the trial court did not comply with the requirements of rule 3.212 in adjudicating Moulton competent, it appears that her conviction and sentence may have been entered in violation of due process.

The final question is the proper remedy. The supreme court in Dougherty noted that “the remedy for a trial court’s failure to follow the procedures discussed above depends on the circumstances of each case.” Dougherty, 149 So.3d at 679. In Shakes—which is procedurally and factually quite similar to this case—this court reversed Shakes’ conviction and sentence, remanded for the trial court to permit Shakes to withdraw his plea, and ordered the trial court to hold a proper competency hearing on remand. Shakes, 185 So.3d at 683. More recently however, rather than reversing the convictions, this court entered an order relinquishing jurisdiction for sixty days and directing the trial court to conduct a new competency hearing. See Cramer, 213 So.3d at 1029 (citing Fowler v. State, 255 So.2d 513, 515 (Fla. 1971)). In Fowler, the supreme court explained:

However, our finding [that the trial court’s procedure was inadequate] does not require vacation of the judgment and sentence entered against defendant at this time. Knight v. State, 164 So.2d 229 (Fla. [3d DCA] 1964); United States v. Walker, 301 F.2d 211 (6[th] Cir. 1962). Instead, the cause is temporarily remanded to the Circuit Court of Pinellas County with directions that the claim of insanity at the time of trial be determined in a full hearing as required by CrPR 1.210(a). If upon such hearing the trial Court determines that the defendant was sane at the time of trial, the Court is ordered to. forthwith transmit the entire record of the case, including a transcript of the sanity hearing, and a copy of the trial judge’s order finding defendant sane, back to this Court. ...
If, however, the trial Court shall determine the defendant was insane at the time of trial but is now sane, the Court is directed to vacate the adjudication of guilt and sentence, to give the defendant an opportunity to replead, and to set a new trial date; or if the holding of the trial Court shall be that the defendant was insane at the time of trial and is now or remains insane, the Court is directed to vacate the adjudication of guilt and sentence and commit the defendant' to the proper institution.

Fowler, 255 So.2d at 515-16. In Cramer, this court followed the Fowler court’s suggestion and relinquished jurisdiction and “directed] the trial court to conduct a new competency hearing following the procedure set forth by the supreme court in Fowler.” 213 So.3d at 1029.

In this case, in light of the fact that Moulton entered a negotiated plea agreement with the State to reduced charges, we follow Cramer and relinquish jurisdiction to the trial court for sixty days from the date of this order and direct the trial court to conduct a proper competency hearing in accordance with the guidance provided in Fowler.

Jurisdiction relinquished with directions.

LaROSE, C.J., and SALARIO, J., Concur.


author: PER CURIAM.

text:
    Michael T. FLORIO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1294
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017
    Michael T. Florio, pro se.
    No appearance by Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Michael T. Florio has to seek timely relief pursuant to a sworn motion filed under Florida Rule of Criminal Procedure 3.850.

LaROSE, C.J., and NORTHCUTT and KELLY, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Keith Lamar WESBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4661
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017

      Keith Wesby, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General* Tampa, for Appel-lee. • ■ •
   BADALAMENTI, Judge.

Keith Lamar Wesby appeals the denial of his motion for postconviction relief. See Fla. R. Crim. P. 3.850. The motion alleged thirteen separate grounds for relief, most of. which were summarily denied without an evidentiary hearing, with the exception of Grounds 7a and 7b—these were denied after an. evidentiary hearing. We affirm the postconviction court’s ruling, with the exception of its summary denial of Ground 3. Because Mr. Wesby’s allegation that his trial counsel was ineffective for failing to move for disclosure of a confidential informant (Cl) is not conclusively refuted by the record, we reverse the postconviction court’s summary denial of Ground 3 and remand for an evidentiary hearing.

Mr. Wesby allegedly, participated, in three controlled drug buys with an undercover detective of the St. Petersburg Police Department. The first buy was'set up through a Cl who contacted Michael Brown—-Mr. Wesby’s brother—to arrange the purchase. On October 9, 2008, the detective and the Cl met with Mr. Brown at a convenience store, and an acquaintance of Mr. Brown’s named “Dino” sold the detective some Fioricet pills. The detective was led to believe that these were actually hydrocodone pills, but they were not.

On October 23, 2008, “Dino” contacted the detective and told him he may have some hydrocodone for sale. “Dino” and the detective met in the front yard of a residence, where “Dino” sold the detective hy-drocodone in liquid and pill form. Neither the Cl nor Mr. Brown took part in this transaction.

■ On March 2, 2009, the detective contacted “Dino” and asked him if he had any more hydrocodone. “Dino” said that he did not, but that he'had cocaine instead. The detective then purchased an eight-ball of cocaine from “Dino.” Again, neither the Cl nor Mr. Brown took part in this transaction.

During these three transactions, the de- ' tective was unable to determine “Dino’s” real name. But after -the detective researched the tag number- of Michael Brown’s car, he found records of a previous traffic stop during which Mr. Wesby was present in the car. The detective then obtained a photograph of Mr. Wesby and identified him as “Dino.”

Based on the detective’s identification of Mr. Wesby as “Dino,” Mr. Wesby was charged and adjudicated guilty of unlawful sale of a prescription drug, trafficking in hydrocodone, sale of cocaine, and possession of cocaine. Mr. Wesby’s defense at trial was misidentification.-Mr. Wesby was sentenced to a term of imprisonment for an overall length of twenty-five years, with a twenty-five-year minimum mandatory sentence for the trafficking charge. This court affirmed Mr, Wesby’s • convictions and sentences on direct appeal. Wesby v. State, 109 So.3d 803 (Fla. 2d DCA 2013) (table decision).

Mr. Wesby then filed his pro se motion for postconviction relief. In Ground 3 of his operative motion, Mr. Wesby alleged that his trial counsel was ineffective for failing to move for disclosure of the CL Mr. Wes-by further alleged in his operative motion (1) that Mr. Wesby informed his counsel that he is not the person who sold drugs to the detective, (2) that disclosure of the Cl was necessary to establish the defense of misidentification, (3) that the Cl was present for the first controlled buy, (4) that the State’s only identification testimony came from the detective, and (5) that had defense counsel moved for disclosure of the Cl and then called him or her to testify, the Cl would have corroborated Mr. Wes-by’s claim that he was misidentified as “Dino.”

In its response, the State points to one sentence in Mr. Wesby’s motion which provides that the detective’s “identification testimony was the only evidence submitted to the jury to prove ... the [hjydrocodone trafficking charge.” (Emphasis added.) Because the Cl was. only present for the October 9 transaction and not the October 23 transaction—which is when the detective first received real hydrocodone from “Dino”—the State argues that disclosure of the Cl would have been, immaterial ■ to the hydrocodone trafficking charge. Moreover, even if the Cl had been disclosed and called to testify, the State maintains that the detective’s trial - testimony would, -not have changed and that. Mr. Wesby. would have been convicted anyway. In- summarily denying Ground 3, the postconviction court adopted the State’s position wholesale. We disagree and reverse. Mr. Wesby was, at minimum, entitled .to an evidentiary hearing on Ground 3 of his motion for postcon-viction relief.

To prevail .on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was unreasonable under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have, .been different.. See generally Thompson v. State, 990 So.2d 482, 489-90 (Fla. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Where no evidentiary hearing is held on an .issue in a postconviction motion,, “we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Foster v. State, 810 So.2d 910, 914 (Fla. 2002) (quoting Peede v. State, 748 So.2d 253, 257 (Fla. 1999)). We may only affirm a postconviction court’s summary denial if the record conclusively shows that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

“When asserting that disclosure of information is necessary to/éstablish a specific defense, ‘[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.’ ” State v. Borrego, 970 So.2d 465, 467 (Fla. 2d DCA 2007) (alteration in original) (quoting State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989)). This court has previously noted that a movant asserting a misidentifícation defense involving a Cl must provide “[s]worn allegations supporting a misiden-tification defense for which the Cl’s testimony would be helpful.” Wilson v. State, 13 So.3d 83, 84 (Fla. 2d DCA 2009). Here, Mr. Wesby properly alleged that he did not sell- the detective any drugs, that the Cl arranged the first transaction and was present at the time- of the first transaction, and that the Cl would have testified that Mr. Wesby was not present at the transaction and was not the person who sold the drugs. See id. at 84-85.

We are not persuaded by the State’s argument that the Cl’s testimony was immaterial because the Cl was only present for the first buy. If the Cl had been disclosed and testified that Mr. Wes-by was not present at the October 9 transaction, the credibility of the detective would have been undermined as to the subsequent transactions. This court faced a similar fact pattern in McLoyd v. State, 768 So.2d 1159, 1160 (Fla. 2d DCA 2000), where a law enforcement officer used a Cl to set up' a controlled buy with the defendant, Jimmy McLoyd. The officer obtained Mr.' McLoyd’s contact information and set up a second buy, this time without the assistance of the Cl. Id. Mr. McLoyd was convicted and adjudicated guilty on two counts of sale of cocaine and two counts of possession with intent to sell. Id. He then filed a motion for postconviction relief arguing that his counsel was ineffective for failing to call the Cl as a witness. Mr. McLoyd asserted that had the Cl been called to testify, she would have revealed that “she never met McLoyd and that he never sold her illegal drugs.” Id.

The postconviction court summarily rejected Mr. McLoyd’s argument because (1) hearsay testimony from the officer established that the Cl was unavailable to testify because she was in rehab and (2) the omission of the Cl’s testimony could not have prejudiced the trial because it was cumulative of the officer’s testimony. Id. at 1161. On appeal, this court reversed. Concerning the postconviction, court’s second point about cumulative testimony, this court explained that if the Cl had testified that she did not participate in the first transaction with the officer, then there would be a reasonable probability that the jury would not have convicted Mr. McLoyd solely on the testimony of the officer, even though the Cl was not present for the second transaction. Id. Accordingly, this court remanded the case to the postconviction court for an evidentiary hearing. -

Our reasoning in McLoyd rebuts the State’s argument that the Cl needed to have been present' at the second or third transactions for his or her testimony to be material. Even if the Cl could only testify whether Mr. Wesby was present at the first transaction, such testimony might have discredited the detective’s ability to identify Mr. Wesby in general. Moreover, we note that in Ground 7b of his motion, Mr. Wesby alleged that his counsel was ineffective for failing to call Michael Brown as a witness and that Mr. Brown, had he been called, would have testified that Mr. Wesby was not “Dino.” The postconviction court granted Mr. Wesby an evidentiary hearing on Ground 7b, even though Mr. Brown was only present for the first transaction. If Mr. Brown’s absence from the second and third transactions did not preclude an evidentiary hearing on Ground 7b, then surely the Cl’s absence from those transactions does not preclude an evidentiary hearing on Ground 3.

Thus, the State has failed to conclusively refute Mr. Wesby’s allegation that his trial counsel was ineffective for failing to move for disclosure of the Cl. Therefore, we reverse the postconviction court’s summary denial of Ground 3 and remand for an evidentiary hearing. See Wilson, 13 So.3d at 84. In all other respects, we affirm.

Affirmed in part; reversed in part; remanded with instructions.

KHOUZAM and SLEET, JJ., Concur.

      , All proper rule 3.850 motions are sworn. See Fla. R. Crim. P. 3.850(c).

      . From the limited facts in the opinion, it seems as though the Cl’s identity in McLoyd was already known to defense counsel prior to trial, even though counsel still did not'call the Cl to testify. Although the Cl was not disclosed in the case before us, we do not believe this difference is significant to the ultimate question of whether Mr. Wesby’s allegation is conclusively refuted by the record.


author: OSTERHAUS, J.

text:
    Bryan GRIGG, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1368
    District Court of Appeal of Florida, First District.
    Opinion filed November 15, 2017

      Francis Jerome Shea of Francis Jerome Shea, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   OSTERHAUS, J.

Bryan Grigg appeals his armed burglary conviction and, sentence and argues that the trial judge committed fundamental error during voir dire by previewing “hypothetical” facts to the venire that closely matched the evidence in Mr. Grigg’s own case and then communicating the judge’s view that defendants in Mr. Grigg’s situation should not go free. We agree with Mr. Grigg’s argument and reverse and remand for a new trial.

L

During jury selection in Mr. Grigg’s trial below, the state prosecutor asked prospective jurors if any of them-would have a problem reaching a verdict in a case where no physical evidence was presented. Three prospective jurors indicated that they couldn’t convict a defendant in the absence of physical evidence, whereupon the trial court began asking its own questions. The trial judge asked the potential jurors how they would decide two “hypothetical” cases using facts that were almost identical to the evidence in Mr, Grigg’s case. The trial judge asked them to assess the hypothetical cases as -.though they themselves were victims of the crimes and told them his view .that the. defendants in his hypotheti-cals should not go free.

A jury was ultimately selected without objection, not including the three prospective jurors who said they couldn’t convict in a case lacking physical evidence. And then, on the heels of dismissing the unselected members of the venire, the trial judge reiterated that it was incorrect to think that-the State couldn’t bring a case in the absence of physical evidence; that it wasn’t unusual for there to be no physical evidence in a criminal ease; and that no physical evidence doesn’t mean there wasn’t a crime.

The State’s armed burglary case proceeded against Mr. Grigg and the evidence against him was’very similar to what the trial court had described “hypothetically” at jury selection. The jury found him guilty. And now, Mr, Grigg seeks a hew trial on due process-related grounds, because of the trial court’s comments during voir dire.

II.

- Because Mr. Grigg did not object to the trial judge’s comments that he is now challenging, we review the court’s actions for fundamental error. “Fundamental error is defined as error which ‘goes to the essence of a fair and impartial trial, error so’ fundamentally unfair as to amount to a denial of due process.’ ” Olivera v. State, 58 So.3d 352, 353 (Fla. 1st DCA 2011) (quoting Sparks v. State, 740 So.2d 33, 35 (Fla. 1st DCA 1999)). “[A] fundamental tenet of due.process is a fair and impartial tribunal.” Sparks, 740 So.2d at 36.

This ease involves statements made at voir dire. “The purpose of voir dire is to ‘obtain a fair and impartial jury, whose minds are free of all interest,.bias, or prejudice.’ ” Hoskins v. State, 965 So.2d 1, 13 (Fla. 2007) (quoting Ferreiro v. State, 936 So.2d 1140, 1142 (Fla. 3d DCA 2006)). The purpose is not “to obtain a preview of [potential juror’s] opinions of the' evidence.” Id, A trial judge’s improper participation in voir dire can render a trial unfair' and result in fundamental error. Morgan v. State, 198 So.3d 812, 816 (Fla. 2d DCA 2016). Trial judges must be especially mindful of their statements because of “the high position which a judge holds in the scheme of the trial magnifies, in the minds of the jurors, the meaning of comments by. the judge.” Jacques v. State, 883 So.2d 902, 906 (Fla. 4th DCA 2004) (quoting Kellum v. State, 104 So.2d 99, 104 (Fla. 3d DCA 1958)). Judges must “never assume the role of prosecuting' attorney and lend the weight of his great influence to the side of the government.” Sparks, 740 So.2d at 37 (quoting J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998)). ’ Nor should judges “sum up the evidence or comment to - the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” § 90.106, Fla. Stat. (2016).

When three prospective jurors at voir dire in this case indicated that they couldn’t convict a defendant in the absence of physical evidence, the trial court proceeded to question the prospective jurors himself as follows:

THE COURT: Well, now, let me just ask the jurors this. If, hypothetically, someone comes into your house with a gun, he steals your watch and leaves, prior to their arrest they throw the gun somewhere in the St. Mary’s River and it’s unrecoverable and you come to court and you clearly identify the perpetrator as the person who stole your watch, which has also unrecovered, then it’s your position that that person should be found not guilty? ...
THE COURT: So you would be comfortable—
[PROSPECTIVE JUROR]: I would—
THE COURT: —if a burglar came into your house not only with a gun, but shot the gun, took your belongings, your belongings were never recovered, the gun was never recovered—
[PROSPECTIVE JUROR]: In my view—
THE COURT: —you—don’t interrupt me. You identify him 100 percent, but you believe, as the victim, that that defendant should go free?

In this colloquy the trial judge presented two hypothetical crimes to the venire to make the point that armed burglary defendants should not “go free” where witness testimony identifies the burglar, but there is a lack of physical evidence. These hypo-theticals and statements from the trial judge presented a larger fairness problem for Mr. Grigg’s case, however, because they mirrored the State’s evidence against him. Just like the hypotheticals, the primary evidence presented in Mr. Grigg’s trial was testimony from the victim and accomplices, who said that he came into the house, pointed a gun at the victim, shot the gun into the ground, and stole the victim’s wallet. The State recovered neither the wallet nor the gun, and so its case hinged on the testimony of witnesses who identified Mr. Grigg as the perpetrator.

At least two fairness problems arise from the trial court’s participation at voir dire. First, by reciting and commenting upon hypotheticals that mirrored Mr. Grigg’s case, the trial court openly communicated its disapproval of jurors who would find the defendant not guilty and permit him to-“go free.” By stating his.views of the optimal result, the trial judge lent his position’s weight and influence to the prosecution and jeopardized the jury’s ability to impartially hear and decide the case. Cf. Dicks v. State, 83 Fla. 717, 719, 93 So. 137 (1922) (noting that “it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony”); Franqui v. State, 699 So.2d 1312, 1322 n.5 (Fla. 1997) (finding it improper to “have jurors indicate, in advance, what their decision will be under a certain state of evidence or upon a certain state of facts”).

Another problem with the trial court’s colloquy is its “golden rule” argument characteristics. “‘Golden rule’ arguments ... invite the jurors to place themselves in the victim’s position during the crime and imagine the victim’s suffering.” Mosley v. State, 46 So.3d 510, 520 (Fla. 2009). The Florida Supreme Court has “repeatedly held that ‘golden rule’ arguments are improper.” Id. The trial court in this case couched its questions to the prospective jurors in golden-rule like terms:

• “If, hypothetically, someone comes into your house with a gun, he steals your watch and leaves, ...
• “[I]f a burglar came into your house not only with a gun, but shot the gun, took your belongings, your belongings were never recovered, the gun was never recovered”;
“You identify him 100 percent, but you believe, as the victim, that that defendant should go free?” and
• “But if you have a jury o[f] people like you they would find him not guilty.”

The Second District recently reversed a conviction partly because of “golden rule” problems with a judge’s statement at voir dire “that any judge would have prohibited a lawyer from making,” Morgan, 198 So.3d at 816. Here, too, the colloquy’s invitation at voir dire for prospective jurors to view the evidence as victims of a very similar burglary crime undermined the trial’s fairness from the very start.

The trial judge compounded its errors one final time before the venire when, in the course of dismissing panel members who were not selected to serve on the jury, he chastised those who said they couldn’t convict without physical evidence. The judge asked them again to “contemplate” whether the State could not bring a case without physical evidence. He stated that a lack of physical evidence “doesn’t mean there wasn’t a crime. It doesn’t mean that evidence cannot be produced through testimony that would prove beyond every reasonable doubt that a crime was committed and a person has been identified who committed the crime.” These comments reinforced a prosecution-friendly view of Mr. Grigg’s case.

Because Mr. Grigg failed to object to the trial judge’s comments, we recognize that he must show these errors at voir dire to be fundamental. “The fundamental error exception to the contemporaneous objection rule occurs ‘only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” Olivera, 58 So.3d at 353 (quoting Joyner v. State, 41 So.3d 306, 306 (Fla. 1st DCA 2010)). Here, we conclude that the trial judge’s errors, taken cumulatively, require relief because Mr. Grigg’s trial was rendered “fundamentally unfair as to amount to a denial of due process.’” Id. Mr. Grigg had the right to a fair and impartial jury. Hoskins, 965 So.2d at 13. And the manner in which the trial judge previewed the evidence and expressed his opinion to the prospective jurors that defendants in Mr. Grigg’s position should not go free “[struck] at the fundamental legality of the trial itself.” Hamilton v. State, 88 So.2d 606, 608 (Fla. 1956).

III.

For these reasons, we REVERSE the judgment and sentence, and REMAND for a new trial.

JAY and WINSOR, JJ., CONCUR.


text:
    Joseph PRATT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3963
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017
    Mark V. Murray, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(d)(5). ’

WOLF, LEWIS, and M.K. THOMAS, JJ., CONCUR. '


author: LaROSE, Chief Judge.

text:
    Jerome J. DAVIS, DOC # D82350, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3102
    District Court of Appeal of Florida, Second District.
    Opinion filed November 22, 2017
    Rehearing Denied December 7, 2017

      Howard L. Dimmig, II, Public Defender, and Marie-Louise Samuels Parmer, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, -for Appellee.
   LaROSE, Chief Judge.

Jerome James Davis appeals his final judgment and sentences. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse and remand for a new trial because the trial court failed to conduct adequate Nelson and Faretta hearings.

A jury convicted Mr. Davis of burglary with an assault or battery, in violation of section 810.02, Florida, Statutes (2013), false imprisonment, in violation of section 787.02, Florida Statutes (2013), and stalking, in violation of section 784.048, Florida Statutes (2013). The trial court sentenced him to life in prison for the burglary, five years in prison for the false imprisonment, and twelve, months in jail for,the stalking.

Mr. Davis argues that the trial court failed to conduct adequate Nelson and Faretta hearings before it allowed him to represent himself. The State concedes that Mr. Davis is entitled to a new trial. Mr. Davis also argues that the trial court violated his right to a speedy trial. Finally, Mr. Davis asserts that the trial court made numerous improper evidentiary rulings.

Background

Mr. Davis appeared for his jury trial with his lawyer from the Public Defender’s office. Mr. Davis told the trial court that he wanted to discharge his lawyer.

[M]y communications with [my defense counsel] are inadequate. I have tried to tell you that I’ve asked the witnesses to come in my behalf, which [my defense counsel] has said that she didn’t have time to deposition [sic] them. When I asked her who she depositioned [sic], she says I don’t have time for that. She wants to tell me how she’s going to run my life. Honorable Alcott, I wouldn’t care what—what the State thinks of me or you think of me at this point. This is my life. I don’t have time to sit down and argue with [my defense counsel],
I believe that I can go off of just the police report. I believe, Your Honor, with no disrespect to you or the State— you guys are college educated, you’ve— you’ve done a lot of time in criminal activity—if you just simply go over the police reports, okay, you will be able to see that this female is lying. And you would not even—how would you say— take her studious [sic]. And I—and I do hope that you do that in between now and jury selection in time that we go to the court [sic]. All I ask for you, sir, is for you to cut this bracelet off of me and give me a belt and let me pick my jury. I have no time to argue with [my defense counsel]. She’s dismissed, period.
And also Honorable Ojeda, if" you want to call him and ask him—I went through this before—excuse me of raising my hands above my shoulders, sir, but how would you say—I have—I’ve represented myself successfully before. So if you need to call Honorable Ojeda to show that I’m competent or whatever, but I shouldn’t have to be going through—
And [my defense counsel] never has showed me anything that she’s doing. She just expects me to just-just happily go on whatever she says. No ma’am. God—God bless you.

The trial court asked Mr. Davis if he wanted to discharge his lawyer and represent himself. Mr. Davis responded: “I have to sir. Under the circumstances, I don’t ... have a choice.” The trial court then asked Mr. Davis if he was ready to pick a jury that day; Mr. Davis responded affirmatively. The trial court then asked, “and you’ve prepared your Defense and you’re ready to proceed today ... with your Defense?” Again, Mr. Davis responded affirmatively. The trial court then stated:

Mr. Davis, you’re certainly entitled to represent yourself. But I need to have a clear understanding that you’re—have an attorney appointed and available to you, who I found to be an effective attorney, and you’re certainly entitled to discharge her and go forward on your own if you want to.

The trial court then asked Mr. Davis if he had ever selected a jury before, and Mr. Davis stated that he had. The trial court did not inquire further into Mr. Davis’s ability to represent himself. It stated: “[Defense counsel] based upon his desire to represent himself, I’ll discharge the Office of the Public Defender. And we’ll bring in the jury.” Mr. Davis proceeded to represent himself for jury selection that day.

Two days later, Mr. Davis and the State returned for trial. The trial court asked:

And because this is a critical stage in the proceedings and, Mr. Davis, you’re here today without a lawyer, I want to again advise you[.] [Y]ou have a right to have a lawyer to help you and represent you, if you want one. You indicated to us Monday that you wanted to discharge your lawyer and go without an attorney. Do you still want to do it that way?

Mr. Davis replied that he did. not want his appointed lawyer.

Mr. Davis noted that the investigating detective was not on the State’s witness list. Mr. Davis knew about the detective because the State provided the case report with the detective’s name in discovery. The trial court found the State’s failure to list the detective was inadvertent. The detective was not subpoenaed for trial. The State tried to contact him but he was unavailable. Mr. Davis wanted the detective present. Consequently, the trial court discharged the jury and, over Mr. Davis’s objection, continued the case. The trial court directed the State to subpoena the detective for trial.

Subsequently, Mr. Davis filed a notice of expiration of speedy trial and sought discharge. The trial court denied his request for discharge. The trial court found that Mr. Davis was partially responsible for the delay in the start of trial. More specifically, Mr. Davis moved to discharge his counsel on the day of jury selection, and later insisted that the investigating detective be at the trial.

The trial court later empaneled a second jury and conducted a two-day trial. The jury found Mr. Davis guilty of (1) burglary, as charged; (2) false imprisonment, a lesser included offense of the kidnapping count charged; and (3) stalking, a lesser included offense of the aggravated stalking count charged.

The trial court appointed the Public Defender’s office to represent Mr. Davis for sentencing. Again, Mr. Davis asked the trial court to discharge appointed counsel, The trial court conducted a Nelson hearing. The trial court asked Mr. Davis why he thought his counsel was ineffective. Mr. Davis responded that his counsel failed to challenge the seoresheet or get a presen-tence investigation report (PSI). His appointed counsel responded that she told Mr. Davis that the trial court denied her request for the PSI. She also stated that she told Mr. Davis that, she would challenge the seoresheet at sentencing. The trial court found that appointed counsel was not’ineffective. It allowed Mr. Davis to proceed pro se for sentencing.

Discussion

Nelson and Faretta Hearings

“[W]here the defendant has clearly alleged attorney incompetence arid has unequivocally -expressed his desire to discharge-his counsel, then the court’s failure to conduct a Nelson inquiry is reversible error.” Finfrock v. State, 84 So.3d 431, 434 (Fla. 2d DCA 2012). “Generally, this court reviews whether a trial court conducted an adequate Nelson hearing under the abuse of discretion standard.” Id. “[Wjhile the failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion standard and, presumably, a harmless' error analysis, the failure to conduct any inquiry is per se'error.” Jackson v. State, 33 So.3d 833, 836 (Fla. 2d DCA 2010).

On the day of the first jury selection, Mr. Davis clearly stated his dissatisfaction with counsel. See Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010) (“Preliminarily,'the court must determine whether the defendant’s, request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request.”). The trial court did not ask counsel to respond to Mr. Davis’s allegations. It simply found counsel to be effective without any inquiry “to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance.” Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004). The trial court determined counsel was effective and asked Mr. Davis if he wanted to discharge his counsel and represent himself. Mr. Davis answered that he had no other choice, and the trial court discharged his counsel. This exchange was not an adequate Nelson hearing. See Torres, 42 So.3d at 913 (“[T]he trial court improperly assumed that Torres’ dissatisfaction with counsel was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would have dispelled any notion of counsel’s incompetency.”). The only Nelson hearing conducted was at Mr. Davis’s later sentencing hearing. Therefore, we must reverse and remand for a new trial. See Laramee v. State, 90 So.3d 341, 344-45 (Fla. 5th DCA 2012) (holding that trial court’s failure to hold a Nelson hearing when defendant made a clear and unequivocal request, to discharge his attorney and then to conduct a Faretta hearing after the defendant made “an unequivocal and clear request for self-representation” required reversal).

“Under Farétta and our precedent, once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis v. State, 997 So.2d 375, 378 (Fla. 2008). “When an accused manages his own .defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and infelligently’ forgo those relinquished benefits.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant does not need to have the skill or experience of a lawyer to competently and intelligently choose to represent himself. Id. However, the defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

The trial court allowed Mr. Davis to represent himself without conducting any further inquiry as to his knowledge of the disadvantages of self-representation. Torres, 42 So.3d at 912 (“If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel.”). Mr, Davis told the court that he had represented himself successfully before. However, this does not waive the trial court’s duty to conduct a Faretta inquiry. See Eib v. State, 191 So.3d 977, 979 (Fla. 2d DCA 2016) (“As part of the Faretta inquiry, ‘[t]rial courts are ... required to instruct defendants about the disadvantages and dangers associated with self-representation.’ ” (alteration in original) (quoting Goldsmith v. State, 937 So.2d 1253, 1256 (Fla. 2d DCA 2006))).

The State concedes that the “trial court erred in failing to conduct a more detailed Faretta inquiry.” A new trial is necessary.

Speedy Trial Violation

Mr. Davis argues that the trial court violated his .right to a speedy trial by continuing the trial. Mr. Davis seeks discharge from his judgment and sentences. Mr. Davis began his self-representation on the day of jury selection. He told the trial court that' he was prepared to proceed. Yet, on the day testimony was to begin, he inquired about the absence of the investigating detective from the State’s witness list. The State inadvertently excluded the detective. The officer was not subpoenaed and did not respond to calls that morning. Because Mr. Davis wanted the witness present, the trial court rescheduled the trial and directed the State to make this witness available for trial.

A trial court’s decision to extend the speedy trial period is reviewed for an abuse of discretion. See Routly v. State, 440 So.2d 1257, 1261 (Fla. 1983). To determine whether a speedy trial violation has occurred we may look at “(1) the length of the delay, e.g., whether the delay is presumptively prejudicial; (2) the reason for delay; (3) whether the appellant has timely asserted his rights[;] and (4) the existence of actual prejudice as a result of the delay.” Howell v. State, 418 So.2d 1164, 1171 (Fla. 1st DCA 1982). The State filed an information against Mr. Davis on July 3, 2012. It appears that Mr, Davis timely asserted his right to speedy trial. Mr. Davis filed a notice of expiration of speedy trial time on December 20, 2012, He stated that the. last day of the recapture period was January 7, 2013. The trial began on April 30, 2013, and concluded on May 6, 2013. Therefore, there was about a ten-month delay between the time of filing the information and the end of trial. We do not find that this delay was presumptively prejudicial. State v. Polk, 993 So.2d 581 (Fla. 1st DCA 2008) (finding that ten-month delay was not presumptively prejudicial). Here, it is clear that Mr. Davis’s decision to represent himself and demand the presence of the investigating detective was at least partially responsible for the delay. Further, Mr. Davis has not demonstrated how the delay actually prejudiced him.

Evidentiary Rulings

Because Mr. Davis will receive a new trial) we do not address his issues concerning the trial court’s evidentiary rulings.

Conclusion'

The trial court did not violate Mr. Davis’s speedy trial rights. However, and as the State concedes, the failure of the trial court to conduct proper Nelson and Faretta hearings requires a new trial.

Reversed and remanded for a new trial.

LUCAS and BADALAMENTI, JJ., Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: BLACK, Judge.

text:
    Melvin BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5289
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   BLACK, Judge.

Melvin Benjamin challenges his convictions and sentences for manslaughter and felonious possession of a firearm. Benjamin’s sole argument is that the trial court erred in denying his presentence motion to withdraw plea without sufficient inquiry or conducting an evidentiary hearing. We reverse Benjamin’s sentences and remand for further proceedings consistent with this opinion.

Benjamin was initially charged with second-degree murder and felonious possession of a firearm. The murder charge was a life felony, and Benjamin’s lowest permissible guidelines sentence was forty-five years in prison. In exchange for a guilty plea, the State amended the information to charge manslaughter and felonious possession of a firearm and agreed to a twenty-five-year prison sentence on the manslaughter conviction and fifteen years’ concurrent on the possession conviction, with the latter carrying a ten-year minimum mandatory term. The court accepted Benjamin’s plea, and his sentencing was set off for two weeks in order to have the victim’s family present.

At the beginning of the sentencing ' hearing, counsel stated, “Mr. Benjamin indicates this morning that he is wishing to withdraw his plea.” When asked for a reason, counsel responded:

I think buyer’s remorse. I don’t know. That [twenty-five]-year sentence would be essentially a life sentence which, obviously, we have discussed previously. And that he doesn’t have his discovery which—he doesn’t have his discovery. I don’t take (unintelligible) discovery to them at the jail. We’ve reviewed discovery, reviewed the depositions, how those went, on a number of occasions.

The court then advised Benjamin that if he wanted to file a written motion he could do so but that the oral motion was denied. The court proceeded with sentencing.

Florida Rule of Criminal Procedure 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” “When a defendant files a motion to withdraw a plea before sentencing under [rule] 3.170(f), the trial court must either deny the motion for facial insufficiency or grant an evidentiary hearing to develop the facts surrounding the entry of the plea.” Lee v. State, 875 So.2d 765, 766 (Fla. 2d DCA 2004).

The trial court made no inquiry as to the potential for conflict where counsel remarked that Benjamin had “buyer’s remorse.” See Grainger v. State, 906 So.2d 380, 382 (Fla. 2d DCA 2006) (“[Counsel’s] ‘buyer’s remorse’ comment, which was made prior to Mr. Grainger being brought into the courtroom, was adverse to his client’s interests and demonstrates a failure to act in a representative capacity. ... Counsel’s failure to act in a representative capacity for Grainger laid the groundwork for the third error which occurred when the trial court proceeded to entertain the motion on its merits without providing conflict-free counsel to Grainger.”), disapproved on other grounds by Sheppard v. State, 17 So.3d 275, 286-87 (Fla. 2009); Jones v. State, 74 So.3d 118, 121 (Fla. 1st DCA 2011) (“Once [counsel] told the trial court that he did not believe Mr. Jones had (left to his own devices, without the assistance of counsel) stated a legally sufficient basis for withdrawing his plea, the relationship between Mr. Jones and [counsel] had plainly become adversarial.”); cf. Clark v. State, 112 So.3d 680, 681 (Fla. 4th DCA 2013) (“The [pro se] motion to withdraw for a change of heart and profession of innocence was legally insufficient to show good cause for withdrawal.”). Further, “[e]ven if [counsel was] unpersuaded that the reasons alleged as a basis for withdrawal rose to the level of good cause, requiring the court to allow withdrawal, it is not apparent why [counsel] chose not to argue that the trial court should exercise its discretion” to permit her client to withdraw his plea. See Jones, 74 So.3d at 121.

The trial court’s failure to inquire is also troubling given the second basis upon which Benjamin sought to withdraw his plea: that Benjamin did not have his discovery. Without seeking elaboration on why the discovery might support withdrawal of Benjamin’s plea, the court simply denied the motion. Cf. Shores v. State, 152 So.3d 93, 94 (Fla. 5th DCA 2014) (concluding that the denial of the motion to withdraw plea based on defendant not having read his discovery was not an abuse of discretion where “the denial was based on a finding that a defendant’s failure to read discovery until after the entry of a plea does not constitute good cause under [r]ule 3.170(f)”). Benjamin should have been given the opportunity to present argument and otherwise be heard on the motion to withdraw his guilty pleas. See Morales v. State, 973 So.2d 679, 681 (Fla. 2d DCA 2008); see also Lehmkuhle v. State, 20 So.3d 971, 974 (Fla. 2d DCA 2009) (“[T]he trial court here should have given Lehm-kuhle an opportunity to be heard before ruling on his motion.”).

Accordingly, we reverse Benjamin’s sentences and remand for the trial court to conduct a hearing on Benjamin’s motion to withdraw plea.

Reversed and remanded.

CASANUEVA and BADALAMENTI, JJ., Concur.


author: SALARIO, Judge.

text:
    Darlene KELLER, Bradford H. Bennett, and Primrose Solutions, LLC, Petitioners, v. HEALTHCARE-IQ, INC. f/k/a Florida Software Systems, Inc.; Deman Data Systems, LLC, a Florida Limited Liability Company; and Todd Bennett, Respondents.
    Case No. 2D16-4194
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017

      G. Donovan Conwell,. Jr. of Conwell Business Law, LLLP, Tampa, for- Petitioners.
    Julissa Rodrigdez and Stephanie L. Varela of Greenberg Traurig, P.Á., Miami; Gregory W. Kehoe and John Wirthlin' of Greenberg . Traurig, P.Á., Tampa; and John N. Blair of Blair & Roach, LLP, Tonawanda, New York, for Respondents Healthcare-IQ, Inc. and Deman Data Systems, LLC.
    Rachel D. Gebaide and Timothy C. Hau-ghee of Lowndes, Drosdick, Doster, Kan-tor & Reed, P.A., Orlando, for Respondent Todd Bennett.
   SALARIO, Judge.

Darlene Keller, Bradford Bennett (Mr. Bennett), and Primrose ■ Solutions, LLC, seek certiorari review of an order denying motions for protective order filed by Ms. Keller and Mr. Bennett. The motions sought protection from subpoenas asking that Ms, Keller and Mr. Bennett provide testimony and produce documents relating to Primrose, their , employer. For the following reasons, we. grant the petition in part and deny it in part.

- In the underlying litigation, a plaintiff named Todd Bennett, Mr. Bennett’s brother, sued his former employer and related entities (collectively, Healthcare-IQ) for breach of an employment contract. Health-eare-IQ filed counterclaims centered on allegations that Todd Bennett took trade secret information from it to assist Primrose, a new and direct competitor of Healthcare-IQ. Healthcare-IQ served subpoenas for depositions and the production of documents on Ms. Keller and Mr. Bennett that sought, among.other things, documents relating to Primrose and its business. Ms. Keller and Mr, Bennett each filed a motion for protective order that asserted, as relevant here, that the subpoenas (1) improperly sought discovery as to allegations that are barred from assertion in this action by res judicata and (2) improperly sought disclosure of trade secrets and confidential commercial information belonging to Primrose. After a hearing at which no evidence was taken and no oral findings were expressed, the trial court denied those motions in a written order that did not delineate between the various claims for protection and made no additional findings in regard to those claims.

To obtain certiorari relief from a discovery order, the' petitioners must show “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on a post-judgment appeal.” Plantz v. John, 170 So.3d 822, 824 (Fla. 2d DCA 2015) (quoting Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011)). The last two elements are jurisdictional and must be considered first. Williams, 62 So.3d at 1132.

The jurisdictional prongs of the certiorari test are satisfied here. The petitioners have made a sufficient and unre-butted showing for purposes of invoking our jurisdiction that the trial court’s order, if left undisturbed, would require, the unprotected disclosure of trade secrets and confidential commercial information relating to Primrose. This kind of injury is sufficient to satisfy the jurisdictional elements of the certiorari test. See, e.g., Bright House Networks, LLC v. Cassidy, 129 So.3d 501, 505 (Fla. 2d DCA 2014) (“Orders improperly requiring the disclosure of trade secrets or other proprietary information often, create irreparable harm and are thus appropriate for certiorari review.” (quoting Grooms v. Distinctive Cabinet Designs, Inc., 846 So.2d 652, 654 (Fla. 2d DCA 2003))); Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So.2d 1205, 1207 (Fla. 2d DCA 2005) (“We have jurisdiction for certiorari review in this case because the disclosure of trade secrets creates the potential for irreparable harm.”). “Similarly, ‘an order that entitles a party to carte blanche discovery of irrelevant material demonstrates the type of irreparable harm that may be remedied via petition for writ of certiorari.’ ” Harborside Healthcare, LLC v. Jacobson, 222 So.3d 612, 615 (Fla. 2d DCA 2017) (quoting Root v. Balfour Beatty Constr. LLC, 132 So.3d 867, 869 (Fla. 2d DCA 2014)). Thus, to the extent that the petitioners argue that the trial court’s order allowed carte blanche discovery of a wide swath of information related to matters conclusively resolved in prior federal litigation, they have alleged irreparable harm. We therefore consider whether the trial court departed from.the essential requirements of law in denying the motions for protective order.

Insofar as the petitioners contend that the trial court improperly allowed discovery on allegations that are barred by res judicata, we find no such departure. In the underlying litigation, Todd Bennett filed a motion to dismiss Healthcare-IQ’s counterclaims on res judicata grounds, which has been denied, and asserted res judicata as an affirmative defense in his answer. The petitioners have cited no authority—and we are aware of none—that supports the proposition that a party’s assertion of a defense of res judi-cata requires a trial judge to put third-party discovery on ice. Unable to make that assertion, the petitioners’ argument is really that there should be no discovery from them because Todd Bennett has a good res judicata defense that the trial court will ultimately be compelled to uphold on the merits.

But deciding whether a claimant’s discovery should be delayed or denied pending a decision on a party’s defense is classically suited to the discretion of the trial judge based on the facts and circumstances of the case. See Deltona Corp. v. Bailey, 336 So.2d 1163, 1169 (Fla. 1976) (quoting Hollywood, Inc. v. Broward County, 90 So.2d 47, 47-48 (Fla. 1956)); Elsner v. E-Commerce Coffee Club, 126 So.3d 1261, 1264 (Fla. 4th DCA 2013). Here, the res judicata defense is hotly contested by the parties, with legally reasonable arguments having been made in support of their respective positions. Moreover, on the facts of this case, even a successful res judicata defense would not moot the subpoenas entirely; it would result only in limiting the subpoenas to the extent they trench on matters to which the defense applies. Under these circumstances, we cannot say that the trial court abused its discretion by allowing discovery from Ms. Keller and Mr. Bennett to go forward, and we thus cannot find a departure from' the essential requirements of law. See Baker ex rel. Baker v. Eckerd Corp., 697 So.2d 970, 971 (Fla. 2d DCA 1997) (holding that in a certiorari proceeding to review a discovery order, “[o]nly when an order allowing discovery constitutes an abuse of discretion which would cause irreparable damage should the ruling be set aside”).

The petitioners’ argument concerning Primrose’s alleged trade secrets, however, is a different kettle of fish. The Florida Evidence Code provides a privilege against the compelled disclosure of trade secrets, stating as follows:

A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take 'the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person br the person’s agent or employee.

§ 90.506, Fla. Stat. (2016).

When someone objects to the disclosure of an alleged trade secret, the trial court is required to make two basic inquiries. See generally, Bright House Networks, 129 So.3d at 505-06. First, it has to decide, whether the information requested really is a trade secret subject to the privilege—an exercise that most often requires the trial court to review it in camera. Id. at 505; accord Ameritrust, 899 So.2d at 1207. Second, if the trial court finds that the information is a trade secret, it must then decide whether there is a reasonable necessity for the requesting party to have the information.- Ameritrust, 899 So.2d at 1207. If the trial court orders disclosure, it must make findings to support its decision. Bright House Networks, 129 So.3d at 506. And if it fails to follow these procedures before requiring disclosure of trade secrets, it departs from the essential requirements of law. Id.; see also Ameritrust, 899 So.2d at 1207.

For that reason, the trial court departed from the essential requirements of law here. As employees of Primrose, Ms. Keller and Mr. Bennett were entitled to assert the trade secret privilege on Primrose’s behalf under section 90.506, They did so. The court did not, however, determine whether the information sought was trade secret, did not make an in- camera inspection to the extent one might be required, and did not determine whether there was a reasonable necessity for disclosure. As a result, we are compelled by our precedents to grant the petition on the trade secret privilege argument. See Bright House Networks, 129 So.3d at 506; Ameritrust, 899 So.2d at 1208. Going forward, we note that if the trial court ultimately decides to require the production of trade secret information, it will also need to consider whether safeguards are .required to prevent the unnecessary dissemination of that information. See Summitbridge Nat’l Invests. LLC v. 1221 Palm Harbor, L.L.C., 67 So.3d 448, 451 (Fla. 2d DCA 2011).

Accordingly, we grant the petition to the extent that the trial court failed to conduct the required analysis of the claim of trade secret privilege, deny it insofar as the petitioners argue that the discovery should have been limited in light of Mr. Bennett’s res judicata defense, and quash the order denying the motions for protective order.

Petition granted in part and denied in part; order quashed.

MORRIS and BLACK, JJ., Concur.

      . We are concerned that Primrose may not be entitled to participate in this proceeding because, although it knew about the litigation and the subpoenas to Ms. Keller and Mr. Bennett, it did not try to appear in the trial court to protect its interests before the trial court rendered the order on review. We need not decide that issue, however, because we grant relief only with respect to the alleged trade secrets objection—an objection which, as we explain in the text, Ms. Keller and Mr. Bennett are entitled to assert on Primrose’s behalf. See § 90.506, Fla. Stat. (2016). So even if we were to dismiss Primrose from this proceeding, we would be ordering the same relief it has requested.

      . It is at least questionable, then, whether the issues related to the merits defense of Todd Bennett can be asserted by third parties like Ms. Keller and Mr. Bennett. Nevertheless, Healthcare-IQ has not challenged the parties on that basis here, and these third parties at least arguably have the right to seek a protective order based on the undue burden of producing-such discovery under Florida Rule of Civil Procedure 1.280(c). Based on our conclusion regarding the lack of a departure in regard to the res judicata arguments, we need not further address this question.


author: NORTHCUTT, Judge.

text:
    Jan FLANZER, Appellant, v. Eric KAPLAN and Raymond Dean Hautamaki, as trustees of the Louis and Gloria Flanzer Philanthropic Trust, Appellees.
    Case No. 2D16-2425
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017

      Barbara Viota-Sawisch, Peter R. Goldman, and Joseph H. Picone of Broad and Cassel, Ft, Lauderdale, for Appellant.
    Kimberly A. Bald of Harllee & Bald, P.A., Bradenton, for Appellees.
   NORTHCUTT, Judge.

The circuit court dismissed Jan Flan-zer’s undue influence suit as untimely. We reverse because Flanzér’s claim may be subject to the delayed discovery provisions of section 95.031(2)(a), Florida Statutes (2015).

Flanzer’s parents, Gloria and Louis Flanzer, settled assets into a philanthropic trust in December 2005. By its terms, the trust became irrevocable at its creation. Louis died in June 2013; Gloria died in March 2015. In November 2015, Flanzer sued to challénge numerous estate planning documents executed by her parents, including the philanthropic trust. Flanzer alleged that' during a period of time from at least 2001 until her mother’s death, the Trustees maintained a fiduciary relationship with her mother and served as her personal accountant, business and financial advisor, and attorney. According to Flan-zer’s complaint, her mother had a diminished mental capacity during this period and was emotionally and mentally susceptible to the undue influence of the Trustees. Flanzer further alleged that the Trustees exploited their confidential relationship with Flanzer’s mother to alienate and ultimately eliminate Flanzer from her mother’s estate planning scheme. In Count V of her complaint, Flanzer alleged that the philanthropic trust was the result of the Trustees’ undue influence, and she called for the revocation of the trust.

The. Trustees asserted that Count V must be dismissed with prejudice because the trust became irrevocable at its creation in 2005 and “[t]he applicable statute of limitations to, challenge an irrevocable trust is four years from the date of its creation.” The circuit court agreed and determined -that the count must be dismissed with prejudice as a matter of law. The court expressly incorporated the Trustees’ argument into its order and. dismissed Count V. Flanzer timely appealed; we have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.110(k). We review the dismissal de novo. Faller v. Faller, 51 So.3d 1235, 1236 (Fla. 2d DCA 2011).

The Florida Trust Code permits a challenge to the validity of any. portion of a trust procured by undue' influence. § 736.0406, Fla. Stat, (2015). An action to contest the. validity of a revocable trust “may not be commenced until the trust becomes irrevocable by its terms or by the .settlor’s death.” § 736,0207(2) (emphasis added). However, the Code does not specify a limitations period in which to challenge a trust. We therefore look to chapter 95, Florida Statutes, to determine when a plaintiff must bring an undue influence claim challenging a trust. See § 95.011 (“A civil action ... shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.”).

The parties agree that under chapter 95 the limitations period applicable -to Flan-zer’s action is four years. See § 95.11(3). Indeed, a review of section 95.11 reveals .that undue influence claims can only fall under subsection 95.11(3)(j), “[a] legal or equitable action founded on fraud.” See Peacock v. Du Bois, 90 Fla. 162, 105 So. 321, 322 (1925) (“Fraud and undue influence are not, strictly speaking, synonymous, though undue influence has been classified as either a species of fraud or a kind of duress, and in either instance is treated as fraud in general.”); In re Guardianship of Rekasis, 545 So.2d 471, 473 (Fla. 2d DCA 1989) (describing undue influence as a “species of fraud” and holding that statute of limitations on undue influence claim did not begin to run until the influence terminated or someone on Rekasis’ behalf became aware of the influence).

The parties disagree, however, over the application of the delayed discovery doctrine, which states:

An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

§ 95.031(2)(a) (emphasis added). On appeal, Flanzer argues that since courts treat undue influence as a species of fraud, undue influence is therefore subject to the delayed discovery doctrine. The Trustees challenge the application of section 95.031(2)(a) by emphasizing the elements that distinguish fraud and undue influence claims. They argue that such distinctions place undue influence claims outside the meaning of actions “founded upon fraud.” We disagree.

To be sure, undue influence claims and fraud claims are distinct causes of action. See GEICO Gen. Ins. Co. v. Hoy, 136 So.3d 647, 651 (Fla. 2d DCA 2013) (enumerating elements of fraud in the inducement); Greenberg v. Van Dam, 833 So.2d 810, 812 (Fla. 3d DCA 2002) (enumerating elements of undue influence). But the uses of the prepositions “founded upon fraud” and “founded on fraud” in sections 95.031(2)(a) and 95.011(3)(j), respectively, plainly countenance a broader .class of claims than merely actions alleging fraud in general. As such, we see no reason why section 95.031(2)(a) would not apply to Flanzer’s claim—provided that Flanzer otherwise satisfies the requirements of that section. The Trustees point to no other legal authority supporting the circuit court’s conclusion that Flanzer must have challenged the philanthropic trust within four years of its becoming irrevocable. We therefore reverse the dismissal of Count V of Flanzer’s complaint and remand for further proceedings.

Reversed and remanded.

CASANUEVA and SLEET, JJ, Concur.

      . Eric Kaplan and Henry Trawick were named by Mr, and Mrs, Flanzer to act as cotrustees and successor cotrustees of the Flanzers' various trusts. In September 2017, Mr. Trawick passed away during the pen-dency of this appeal. In October 2017, Mr. Kaplan appointed Raymond Dean Hautamaki ■to succeed Mr, Trawick in accordance with Mr. Trawick’s designation. .