author: Conner, J.

text:
    Roland FOURNIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2922
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant Roland Fournier appeals the trial court's order revoking his probation in one case, an order determining the amount of restitution in another case, and the orders imposing public defender fees in both cases. Additionally, Appellant appeals a hearsay ruling as to one ground alleged for revoking his probation and the sufficiency of evidence pertaining to another ground alleged for revoking his probation. We affirm, without discussion, the trial court's evidentiary rulings on the conditions of probation violated. However, as properly conceded by the State on appeal, we agree the trial court erred in failing to enter an order determining which conditions of probation were violated, determining the amount of restitution, and imposing public defender fees exceeding the minimum amount allowed by statute. We therefore affirm in part, reverse in part, and remand for further proceedings.

Background

Appellant was charged with burglary of a dwelling and petit theft. After pleading no contest to the charges, Appellant was sentenced to two years of drug offender probation with $300 in restitution for the burglary charge and one day of probation for petit theft.

Appellant's probation officer filed an affidavit of violation of probation ("VOP") alleging, among other things, that Appellant tested positive for morphine and cannabis as shown by an analysis of a urine drop obtained from Appellant a few weeks earlier. Subsequently, Appellant was charged with new offenses of uttering a forged instrument and petit theft.

Appellant's probation officer filed an amended affidavit of VOP including additional allegations, among which was that Appellant had violated his probation by changing his residence without first procuring her consent. It does not appear the new law violations relating to the uttering a forged instrument and petit theft charges were included in the amended VOP affidavit.

A VOP hearing was conducted. The trial court determined that Appellant had violated his probation with respect to the positive drug test. The trial court also found Appellant violated his probation by moving from his residence without permission. Upon determining that Appellant violated probation, the trial court revoked Appellant's probation and sentenced him to five years in prison with credit for time served for the burglary. No written order was entered stating the trial court's findings regarding what condition or conditions of probation were violated.

After the VOP proceeding, Appellant entered no contest pleas to the new charges of uttering a forged instrument and petit theft. For those charges, he was sentenced to five years in prison concurrent to the burglary sentence. The State moved for $850 of restitution for the uttering charge, to which defense counsel objected. The trial court orally ruled that it would order restitution, but reserved as to the amount. The trial court noted that if the parties could not reach an agreement as to the amount, there would be a hearing. Despite this oral pronouncement, however, the trial court entered a written restitution order for $850. The trial court also entered an order imposing a $150 public defender fee for the burglary case and a $300 public defender fee for the uttering case.

Appellant filed the instant appeal as to both the burglary and uttering cases. During the pendency of this appeal, Appellant filed a rule 3.800(b)(2) motion to correct sentencing error in the uttering case, seeking to strike the written order determining restitution in the amount of $850, on the basis that the trial court orally pronounced that it would reserve ruling as to the amount of restitution and there was no subsequent stipulation or hearing on the amount. It does not appear the trial court ruled on the rule 3.800(b)(2) motion. Appellant also filed a rule 3.800(b)(2) motion to correct sentencing error in the burglary case, requesting that the trial court enter a written order setting forth the specific conditions of probation violated to justify revocation of his probation. The record does not reflect that the second motion was ruled upon either. Finally, Appellant filed a third rule 3.800(b)(2) motion to correct sentencing error in both cases regarding the public defender fees imposed and seeking to reduce the fees to the statutory minimum amount of $100 or to provide notice and an opportunity to be heard if the court considered imposing a fee in excess of the statutory minimum. As with the other rule 3.800(b)(2) motions, it does not appear the trial court entered a ruling on the third motion.

Appellate Analysis

The Restitution Order

When the State moved for $850 in restitution in the uttering case, defense counsel objected. The trial court orally ruled that it would order restitution, but reserve ruling as to the amount. The trial court noted that if the parties could not reach an agreement as to the amount, there would be a hearing. Despite this oral pronouncement, however, the trial court entered a written restitution order for $850. The record does not reflect that Appellant stipulated to the restitution amount, nor does it reflect any evidence was presented by the State on this issue at the hearing. During the pendency of this appeal, Appellant filed a rule 3.800(b)(2) motion seeking to strike the $850 award, given the trial court's oral pronouncement that it would reserve ruling as to the amount. It does not appear the trial court ruled on the motion, and it is therefore deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B).

On appeal, Appellant correctly argues that the trial court erred in entering a written order determining the amount of restitution after orally pronouncing that it would reserve ruling on the amount of restitution pending the parties' agreement, or alternatively, conducting a hearing as to the amount. It is well settled that "a court's oral pronouncement of sentence controls over the written document." Ashley v. State , 850 So.2d 1265, 1268 (Fla. 2003). The State agrees that the trial court erred in this regard. Appellant is entitled to notice and an opportunity to be heard on the matter of the amount of restitution. See, e.g., Iaconetti v. State , 869 So.2d 695, 700 (Fla. 2d DCA 2004) ("It is reversible error to impose restitution without notice or hearing."). Therefore, we reverse the order determining the amount of restitution and remand the case for the trial court to conduct an appropriate hearing. See Boyd v. State , 45 So.3d 557, 560 (Fla. 4th DCA 2010).

Written Order Revoking Probation

Next, Appellant correctly argues the trial court erred when it failed to enter a written order stating the specific conditions violated to justify revocation of probation. The State agrees. "If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated." King v. State , 46 So.3d 1171, 1172 (Fla. 4th DCA 2010). The matter was preserved for review when Appellant filed a rule 3.800(b)(2) motion requesting the trial court enter a written order setting forth the specific conditions violated, but the motion was not ruled upon within sixty days and is therefore deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B). Because the order of revocation of probation in the burglary case does not specify the conditions Appellant violated, we remand for the trial court to amend the order to include the conditions that it found were violated at Appellant's VOP hearing. See King , 46 So.3d at 1172.

Order Imposing Public Defender Fees

Lastly, Appellant correctly argues the trial court erred when it imposed public defender fees above the statutory minimum without notice and an opportunity to be heard. The State agrees. "[A] public defender fee amount that exceeds the statutory minimum fee [is] discretionary and accordingly 'must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard.' " Alexis v. State , 211 So.3d 81, 83 (Fla. 4th DCA 2017) (quoting Mills v. State , 177 So.3d 984, 985 (Fla. 1st DCA 2015) ). "The trial court must announce at sentencing the amount of the lien, as well as 'the accused's right to a hearing to contest the amount of the lien.' " Id. (quoting Fla. R. Crim. P. 3.720(d)(1) ). For felony charges, the trial court is mandated to impose a minimum public defender fee of $100. See id. ; § 938.29(1)(a), Fla. Stat. (2016).

In this case, the trial court entered an order imposing a $150 public defender fee for the burglary case and a $300 public defender fee for the uttering case without providing Appellant an opportunity to contest the fee or advising him of his right to a hearing on same. Appellant filed a rule 3.800(b)(2) motion to correct sentencing error in both cases regarding the public defender fees imposed, and seeking to reduce the fee to the statutory minimum amount of $100 or to provide notice and an opportunity to be heard if the court considered imposing a fee in excess of the statutory minimum. However, the trial court did not rule on the motions and therefore they are deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B).

We reverse the orders imposing the public defender fees and "remand to the trial court to reduce the public defender fee[s] to the statutorily required $100 or to hold a hearing with proper notice to obtain evidence in support of a public defender fee in an amount greater than the statutory minimum." Alexis , 211 So.3d at 83.

Having determined that two of the issues Appellant raised on appeal did not demonstrate reversible error, but three of the issues raised did, we affirm in part, reverse in part, and remand for proper orders to be entered and required hearings to be conducted.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Gerber, C.J., and Taylor, J., concur.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    Willy Michael GOLDMAN and Shirley Goldman, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 4D17-1098
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Daniel L. Monfiston of The Monfiston Firm, P.A., Miami, for appellants.
    Paige B. Segrera, Michael Simon and Jennifer V. Ortega of Simon, Reed & Salazar, P.A., Miami, for appellee.
   Kuntz, J.

This is an appeal of the circuit court's final summary judgment in favor of the insurer. After a plumbing line leak damaged their house, the homeowners notified their insurer, which investigated the claim and issued payment. Without informing their insurer that they disputed the amount of payment, the homeowners filed a lawsuit for breach of the insurance policy. The insurer immediately moved to compel appraisal; an appraisal took place; and the insurer timely paid the appraisal award. Because the appraisal process established the amount of damages, and the insurer paid that amount, the court granted summary judgment in the insurer's favor.

The homeowners appeal and spend nearly eight pages of their brief discussing Johnson v. Omega Insurance Co. , 200 So.3d 1207 (Fla. 2016). But Johnson is not applicable. In Johnson , the insurer denied the homeowner's claim in its entirety, leaving the homeowner with few options other than a lawsuit. Id. at 1210. Here, the insurer valued the loss and paid the claim based on that valuation. The homeowners did not object. Until the filing of the complaint, the insurer was unaware of a disagreement with the damage valuation. Once informed, the insurer demanded appraisal and paid the appraisal.

There was never a breakdown in the claims adjusting or communications process, nor was there a refusal to pay the claim. "It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award of fees under section 627.428, Florida Statutes." Hill v. State Farm Fla. Ins. Co. , 35 So.3d 956, 960 (Fla. 2d DCA 2010) (citing Lewis v. Universal Prop. & Cas. Ins. Co. , 13 So.3d 1079, 1081 (Fla. 4th DCA 2009) ).

The homeowners seek to distinguish Hill , arguing it is the incorrect denial of benefits and not some sinister concept of wrongfulness that triggers fees. They are correct that it is the incorrect denial of benefits that triggers an award of attorney's fees under section 627.428 ; yet, they are wrong to distinguish Hill on that basis. In Hill , and here, the insured never gave the insurer the opportunity to incorrectly deny the benefits before filing a lawsuit. The Hill court questioned "whether this lawsuit was filed to force [the insurer] to conduct an appraisal or whether it was merely a preemptive lawsuit intended to obtain attorneys' fees for the usual efforts in negotiating an insurance claim." 35 So.3d at 960. Here, the circuit court found that was the exact reason the lawsuit was filed. Thus, the court properly granted summary judgment in favor of the insurer.

Affirmed.

Gross and Taylor, JJ., concur.


author: Damoorgian, J.

text:
    Bernard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1156
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Bernard Davis appeals his conviction and sentence for numerous drug-related offenses following an open plea. Appellant argues that the trial court fundamentally erred by: (1) adjudicating him guilty of second-degree felony sale of MDMA; and (2) imposing charges for specific narcotics that were not charged. For the reasons discussed below, we reverse and remand for correction of the judgment as to four of the counts and resentencing as to one of the counts.

Appellant was charged by information with 64 counts of drug-related offenses, including the trafficking, purchase, sale or delivery, and conspiracy to sell cocaine, MDMA, hydromorphone, and oxycodone. Appellant agreed to plead no contest to a number of the counts, including count 26, for a negotiated maximum sentence of thirty years. Count 26 charged Appellant with sale or delivery of MDMA in violation of section 893.13(1)(a) of the Florida Statutes and was designated as a second-degree felony offense.

Prior to the change of plea hearing, the State drafted a written plea agreement which Appellant referenced in his plea form. Except where Appellant was pleading to a lesser included offense, the written agreement only referenced the count numbers listed in the information and not the name of each specific charge. At the change of plea hearing, the trial court was provided with a copy of the written plea agreement as well as the charging document. Pursuant to the plea agreement, the court sentenced Appellant to thirty years in prison on the first-degree felony trafficking of oxycodone count and concurrent fifteen year sentences on each of the remaining counts. Aside from counts 57, 70, and 105 which were incorrectly listed as convictions for sale or delivery of oxycodone, the convictions listed in the written judgment coincided with the offenses listed in the information and written plea agreement.

Appellant first argues that the trial court fundamentally erred by adjudicating him guilty of second-degree felony sale of MDMA (count 26) because the applicable statute classifies the simple sale or delivery of MDMA as a third-degree felony. Accordingly, Appellant requests that we remand for the trial court to vacate his conviction for second-degree felony sale or delivery of MDMA and to resentence him on the remaining counts. The State concedes that count 26 was incorrectly classified as a second-degree felony, however it argues that Appellant is only entitled to resentencing on that count only. We agree with the State.

Section 893.13 of the Florida Statutes provides that any person who sells or delivers a controlled substance named or described in section 893.03(1)(c) commits a felony of the third degree. § 893.13(1)(a) 2., Fla. Stat. (2014). MDMA is listed as a controlled substance under section 893.03(1)(c), thus making the simple sale or delivery of MDMA a third-degree felony. § 893.03(1)(c)165., Fla. Stat. (2014). Subsection 893.13(1)(c)2., however, provides that if a person sells or delivers a controlled substance listed under section 893.03(1)(c) within 1,000 feet of certain establishments, the person "commits a felony of the second degree." § 893.13(1)(c) 2., Fla. Stat. (2014).

In the present case, count 26 of the information alleged that Appellant "did knowingly sell or deliver a controlled substance, [MDMA], or any mixture thereof, in violation of Florida Statute 893.13(1)(a)." It is clear, based on the subsection of the statute referenced, that the State was charging Appellant with simple third-degree felony sale or delivery of MDMA in count 26. Nonetheless, the designation "(F2)" was added at the end of the count, thus incorrectly classifying count 26 as a second-degree felony. This appears to have been a simple scrivener's error which went uncaught by all parties throughout the proceedings below. Appellant's plea of no contest to that incorrectly classified count, in turn, resulted in a fifteen-year sentence, which exceeds the five-year statutory maximum punishment for a third-degree felony. § 775.082(3)(e)., Fla. Stat. (2014).

Under these circumstances, the appropriate remedy is to reverse Appellant's sentence for count 26 and remand for correction of the judgment to reflect the correct degree of felony and resentencing as to that count only. See Jackson v. State , 564 So.2d 1243, 1244 (Fla. 5th DCA 1990). Appellant is not entitled to resentencing on the remaining counts with a corrected scoresheet as Appellant's sentence on those counts were imposed pursuant to a negotiated plea agreement. See Ruff v. State , 840 So.2d 1145, 1147 (Fla. 5th DCA 2003) ("In essence, scoresheet errors are considered harmless when a sentence is the result of a negotiated plea agreement." (footnote omitted) ).

Appellant next argues that the court fundamentally erred when it orally imposed charges for specific narcotics not alleged in the information. Specifically, Appellant maintains that when the court orally pronounced that Appellant was entering a plea of no contest to "counts 1, 3, 5, 15, 18, 26, 36, 38 and 48 to the lesser included offense of sale or delivery of Oxycodone," the court converted counts 1, 3, 5, 15, 36, and 38, which did not involve oxycodone related offenses, into sale or delivery of oxycodone offenses. We reject this argument because it is clear from the record that, except for the counts which were amended to reflect lesser included offenses, the parties intended to rely on the charging document for a description of the charges associated with each count number listed in the written plea agreement.

Nonetheless, both parties agree that the written judgment incorrectly lists the offenses for counts 57, 70, and 105 as sale or delivery of oxycodone instead of sale or delivery of hydromorphone as correctly pronounced at the change of plea hearing. Accordingly, we remand with instructions that the trial court correct the written judgment as to those counts. See Martindale v. State , 678 So.2d 883, 883 (Fla. 4th DCA 1996).

Affirmed in part, reversed in part and remanded.

Gerber, C.J., and May, J., concur.


text:
    TARGET CORPORATION, a foreign for profit corporation, Appellant, v. Lazaro KAUFER, and Katia Kaufer, his wife, Appellees.
    No. 4D16-3413
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Jon D. Derrevere and Shirley Jean McEachern of Derrevere Stevens Black & Cozad, West Palm Beach, for appellant.
    Jay M. Levy and Ryan I. Marks of Jay M. Levy, P.A., Miami, and Samuel M. Spatzer of Samuel M. Spatzer, P.A., Miami, for appellees.
   Kuntz, J.

Target Corporation appeals a final judgment entered in favor of Lazaro Kaufer and Katia Kaufer for injuries sustained from a slip-and-fall accident at one of its stores, raising multiple issues on appeal. Our resolution of the first issue-that the circuit court erred in denying Target's motion for directed verdict-renders the others moot.

While shopping at a Target store, Mr. Kaufer slipped on some liquid laundry detergent on the floor. The resulting fall injured him, causing him to incur medical expenses. The testimony at trial indicates an unknown person walking in front of Mr. Kaufer was carrying a gallon bottle of "leaking" laundry detergent. Mr. Kaufer slipped on the leaking detergent.

The Kaufers sued Target for negligence. The jury found Target partially liable for Mr. Kaufer's fall, awarding him $250,000 in damages and Mrs. Kaufer $30,000 for loss of consortium. After the trial court denied Target's post-trial motions, Target appealed the final judgment.

On appeal, Target focuses on the trial court's denial of its motion for directed verdict. We review the court's ruling de novo. Liggett Grp., Inc. v. Davis , 973 So.2d 467, 470 (Fla. 4th DCA 2007).

Target argued different theories in support of its motion for directed verdict and we address one: that Mr. Kaufer failed to sufficiently plead a prima facie case for negligence under the theory of negligent mode of operation. In response, Mr. Kaufer argued that the negligent mode of operation was Target's "corporate policy of having a clear very high gloss, wet-look finish on its floors in its stores which caused the bright overhead lights to reflect off the tile which created a dangerous condition by causing spills of clear and translucent liquids to be undetectable."

His claim is governed by section 768.0710, Florida Statutes (2009), which provides, in relevant part:

(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

Applying the statute as it existed in 2009, the question here is whether Target's uniform design of brightly-lit stores, with high-gloss floors (cleaned and buffed nightly), created a negligent condition that caused Mr. Kaufer to slip and fall.

Our supreme court addressed a negligent mode of operation claim in Markowitz v. Helen Homes of Kendall Corp. , 826 So.2d 256 (Fla. 2002). In Markowitz , the daughter of a nursing home resident slipped on a grape in the main area of the nursing home and sustained serious injuries. Id. at 258. Reversing summary judgment in favor of the nursing home, our supreme court reasoned "there was an issue of fact as to whether Helen Homes' mode of operation created a foreseeable risk of food spillage." Id. at 261.

The court explained that, under the plaintiff's theory of negligent mode of operation, "the grape was on the floor because of the mode of operation in which the nursing home permitted its residents to handle their food. Thus ... the focus is on whether the practice of allowing residents to carry their food to their rooms constituted a negligent mode of operation." Id. In other words, the condition that led to the injury was allowing the residents to travel with their food trays to their rooms.

Similarly, in Etheredge v. Walt Disney World Co. , 999 So.2d 669 (Fla. 5th DCA 2008), after stepping off the curb while crossing the street in Downtown Disney, a fifteen-year-old's ankle got caught in a storm drain, resulting in injuries and requiring four surgeries. Id. at 672. The Fifth District explained that the negligent mode of operation theory required a determination as to "whether the manner in which Disney chose to have guests cross the street ... resulted in an unsafe condition." Id. (citing Markowitz , 826 So.2d at 261 ). If the evidence established that Disney could reasonably anticipate a dangerous condition would arise as a result of the manner it chose to have guests cross the street, "then the dispositive issue is whether that particular method of operation was in fact negligent and whether the accident that occurred was as a result of that negligence." Id. (citing Owens v. Publix Supermarkets, Inc. , 802 So.2d 315 (Fla. 2001) ).

The ultimate question in Markowitz and Etheredge was whether the plaintiffs' accidents were the result of the purported negligence in the defendant's chosen mode of operations. In Markowitz , the question was "whether the presence of the grape was a result of the specific mode of operation chosen by the nursing home." 826 So.2d at 261. In Etheredge , the question was "whether the practice of encouraging guests to cross the street over a storm drain constituted a negligent mode of operation" that led to the plaintiff's injury. 999 So.2d at 672-73.

Here, the question is whether the presence of the recently spilled laundry detergent was a result of the mode of operation chosen by Target. Unlike in Markowitz , 826 So.2d at 261, where the nursing home's practice of allowing patients to carry food from the dining facility to their room "created a foreseeable risk that the elderly residents would spill their food and thus create dangerous conditions on the premises," Target's alleged negligent mode of operation did not lead to the unidentified patron spilling detergent.

Target's alleged negligent mode of operation consisted of waxing its floors nightly and maintaining a "brightly-lit" store. The presence of the laundry detergent on the floor was not a result of the specific mode of operation chosen by Target. Thus, Mr. Kaufer failed to satisfy the elements of a claim for negligent mode of operation and the court erred in denying Target's motion for directed verdict.

Reversed and remanded.

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

      Section 768.0710, Florida Statutes, was repealed by the Florida Legislature, effective July 1, 2010. See Ch. 2010-8, Laws of Fla. At the same time, the Legislature enacted section 768.0755, Florida Statutes. Id. Some courts have concluded that section 768.0755 eliminated the statutory mode of operation claim. See, e.g. , Sanchez v. ERMC of Am., LLC , No. 2:16-CV-851-FTM-99CM, 2017 WL 417129, at *4 (M.D. Fla. Jan. 31, 2017). But, we need not address that issue as this Court has previously held that section 768.0755 is only applicable to claims arising on or after July 1, 2010. Pembroke Lakes Mall Ltd. v. McGruder , 137 So.3d 418, 423-26 (Fla. 4th DCA 2014). Mr. Kaufer's injury happened on May 17, 2010, and McGruder compels us to apply the statutory language existing on that date.


author: Warner, J.

text:
    Terry D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4245
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges a final judgment finding him to be a sexually violent predator and committing him to custody and treatment pursuant to the Jimmy Ryce Act. He contends that the trial court erred in allowing the State to present hearsay evidence of prior, unproven allegations of sexual conduct, including allegations from two cases on which the State did not file charges and one in which appellant was acquitted of the charges of a sexual nature. We agree that the court abused its discretion in allowing the State to use these incidents, as they were unreliable. Their use was not harmless. We therefore reverse.

The State filed a petition for involuntary commitment of appellant as a sexually violent predator pursuant to the Jimmy Ryce Act, section 394.914, Florida Statutes (2016). It alleged that: appellant had been convicted in 1997 for two counts of a sexually violent offense, namely lewd and lascivious acts on a minor; he was currently incarcerated but set for release; had multiple personality disorders and suffered from pedophilia; and would be likely to commit other sexually violent acts unless he was subject to long term custody and treatment. The court found probable cause, as is required under section 394.915(1), and appellant was held in custody.

Prior to trial, appellant moved in limine to exclude evidence of any unproved criminal conduct, namely two incidents of molestation of a person twelve or older, one in 2004 and one in 2008. In each, although he was arrested, the State did not file any charges against him. Appellant also moved to exclude evidence of a 2010 case in which he was charged with attempted sexual battery but found guilty of simple battery, a lesser offense. Appellant never admitted the allegations against him in any of these cases. The trial court denied the motion in limine.

At the jury trial on the petition, the State presented a psychologist as its sole witness. The psychologist testified that he relied on the arrest reports for the above cases, pre-sentence investigation reports, past judgments, and other Department of Correction records to evaluate the appellant. Appellant had refused to speak with the psychologist, so the psychologist relied on appellant's prison record and prior criminal history in determining that he was a sexually violent predator in need of treatment.

The psychologist first provided the details of the original 1997 incident which amounted to lewd acts on a nine-year old girl. Appellant entered a negotiated plea to those allegations and was designated a sexual offender. Over appellant's renewed objection, the psychologist was allowed to relate the details of the 2004, 2008, and 2010 incidents, which he had gleaned from the various police reports on the incidents. The 2004 incident involved a lewd and lascivious act on a female child between twelve and eighteen; the 2008 incident constituted an arrest for a sexual battery on a "mentally retarded" boy who was twelve year old at the time of the incident; and in the 2010 incident, the victim was a girl between twelve and sixteen years old who reported that she had awakened to find her pants pulled down and appellant kissing her buttocks and vagina. For the 2010 incident, he was charged and tried for attempted sexual battery, but the jury found him guilty of the lesser offense of simple battery. The probable cause affidavits on all the incidents, the final judgment of the 1997 case, the state's filing of a "no information" on the 2004 and 2008 incidents, and the final judgment of conviction in the 2010 incident were entered into evidence.

The psychologist explained that appellant had been screened for commitment as a sexually violent predator in 2002 prior to his release from prison for the 1997 conviction, but he did not meet the criteria for a face-to-face interview when he had only one conviction. In 2016, however, with four sexually violent offenses, he now qualified for commitment. Thus, the three incidents in 2004, 2008, and 2010 were the significant qualifying factors for the psychologist's opinion.

The jury found that the appellant was a sexually violent predator. In its order, the court committed the appellant to the custody of the Department of Children and Families. Appellant filed this appeal, challenging the admission of the three prior incidents.

Appellant contends that the court abused its discretion by allowing admission of the 2004, 2008, and 2010 incidents because the evidence was unreliable. A trial court's ruling on the admissibility of evidence in this civil commitment proceeding is reviewed for an abuse of discretion. Delgado v. State , 125 So.3d 180, 183 (Fla. 4th DCA 2013).

The Jimmy Ryce Act applies the Florida Rules of Evidence but contains a specific provision with respect to the use of hearsay evidence:

(5) Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

§ 394.9155(5), Fla. Stat (2016). The pertinent question in this case is whether the admitted hearsay of the three other incidents was reliable.

In Jenkins v. State , 803 So.2d 783, 785 (Fla. 5th DCA 2001), the court considered the application of this section in similar circumstances where the State had presented evidence against a Jimmy Ryce defendant of "police reports containing unsworn allegations of serious sexual misconduct ...." The court cautioned:

Courts must recognize the distinction between police reports which contain unchallenged and unchallengeable prejudicial hearsay and police reports which relate to cases in which the respondent has pled or has been convicted. It is only the latter which have an indicia of reliability.

Id. The police reports in Jenkins were read at trial by officers, many of whom did not even prepare them, and the officers related statements of witnesses involving details of which the officers had no knowledge. Id. at 786. The court found the statements to be completely unreliable.

We followed Jenkins in Delgado v. State , 125 So.3d 180 (Fla. 4th DCA 2013). In this Jimmy Ryce civil commitment proceeding, the trial court allowed the State's expert to testify regarding a sexual offense of which the defendant had been acquitted. Id. at 182-83. We concluded that the trial court abused its discretion, because the defendant had disputed the allegations of the charge underlying the acquittal, and a jury had acquitted him of the charge. Id. at 183. Thus, nothing in the record supported a finding of reliability. Id. We specifically cited from Jenkins : "[The defendant] was committed, to a large extent, on the testimony of out-of-court witnesses given through the mouths of police officers, which testimony lacked the indicia of reliability resulting from a trial which ended either in a conviction by the factfinder or in a plea to an offense relating to the critical allegations .... The introduction of this unreliable evidence was so prejudicial that it tainted the entire proceedings." Id. (citing Jenkins , 803 So.2d at 787 ).

The 2004 and 2008 incidents in this case similarly lack any indicia of reliability. Only the psychologist testified about them and was allowed to relate the contents of police reports filled with out-of-court statements of others regarding the sexual misconduct alleged. Appellant never admitted any of the allegations. Significantly, the State itself filed a "no information" as to each of these incidents, declining to prosecute the defendant, which undermines the reliability of the probable cause information. As there was no other information to support their reliability, the trial court abused its discretion in allowing the expert to testify to their contents and allowing them to be admitted into evidence.

As to the 2010 incident, the State tried appellant on a charge of attempted sexual battery, but appellant was convicted of a lesser included charge of simple battery. In Delgado, a similar situation occurred. Delgado was charged in a 2000 incident with lewd and lascivious conduct involving a person under sixteen years of age, but the jury found him guilty of simple battery. Id. at 182. The State sought to use that conviction as part of the incidents supporting his involuntary civil commitment under the Jimmy Ryce Act. Id. The court bifurcated the trial and first required the jury to determine whether the simple battery conviction was sexually motivated, which the jury found it was. Id. The State then was allowed to use that conviction to support the finding that Delgado was a sexually violent predator based on his overall history. Id. Delgado did not contest the use of this conviction on appeal. The State suggests that we should interpret Delgado to allow the 2010 attempted sexual battery charge, even though the jury did not find that he committed the offense. Since Delgado never ruled on the reliability of this evidence, it is not controlling of the issue in this case.

Delgado did hold that the trial court abused its discretion in admitting into evidence a charge of lewd or lascivious conduct where the defendant had been acquitted of that charge. Id . at 183. "The defendant not only disputed that charge, but a jury acquitted him of that charge. Thus, there is nothing in the record which causes the [S]tate's hearsay evidence regarding that charge to be reliable." Id. Similarly, in this case, what the expert testified to and what the police report revealed was a sexual battery, but the jury hearing the criminal case against appellant obviously did not find the appellant guilty of any sexual crime. The trial court had no evidence of reliability of the sexual aspects of the crime as detailed in the police report and other Department of Corrections records. The jury's findings, essentially acquitting him of the greater charge, cast considerable doubt on the reliability of the statements in the report.

Had the court conducted a bifurcated proceeding to determine first whether the 2000 battery conviction was sexually motivated, the State may have been able to offer proof of the allegations by calling the victim in that offense and presenting other evidence to support the fact that there was sexual contact. The record in this case does not contain anything but hearsay within hearsay, proved to be less than reliable by a jury verdict which found no sexual aspect to the 2010 incident. The trial court thus abused its discretion in admitting this evidence.

We distinguish Pesci v. State , 963 So.2d 780 (Fla. 3d DCA 2007), relied on by the State. In Pesci , the court allowed the use of police reports of a New York sexual offense where the defendant had admitted to psychologists the accuracy of most of the hearsay evidence presented. Id. at 785. In addition, rather than contest the charges in those police reports, the defendant fled from New York; thus, he did not confront his accusers, which showed a consciousness of guilt. Id. at 782, 785. In contrast, here, the appellant never admitted any of the hearsay evidence; went to trial on the only case filed against him; and was acquitted of the attempted sexual battery.

The admission of these three incidents was not harmless. They formed the core of the case for appellant's involuntary commitment. Without them, the State had no incidents subsequent to the 1997 conviction, which the expert conceded did not warrant a referral for involuntary commitment.

For these reasons, we reverse and remand for a new trial. In any new trial, we do not preclude the State from offering other reliable evidence of the 2004, 2008, and 2010 incidents which would support their use in determining whether appellant is a sexually violent predator in need of long term custody and treatment.

Reversed and remanded for a new trial.

Conner and Kuntz, JJ., concur.

      Because of the 1997 conviction, appellant was designated a sexual offender and required to register with the State. When he failed to register in 2010, the State charged him with failure to register, and he was sentenced to prison. It was at the end of the imprisonment for failure to register that the Jimmy Ryce petition was filed.


author: Gross, J.

text:
    Adrianne NOLDEN, Appellant, v. SUMMIT FINANCIAL CORPORATION, a Florida corporation, David Wheeler, Alvin Wheeler, Art Richardson, and Holcombe USA, Inc., a Florida Corporation d/b/a AutoShow Sales and Service, Appellees.
    No. 4D17-1040
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Kenneth J. Kavanaugh of Kenneth J. Kavanaugh, P.A., Davie, for appellant.
    William J. Denius of Killgore, Pearlman, Semanie, Denius & Squires, P.A., Orlando, for appellees, Summit Financial Corporation, a Florida corporation, David Wheeler, Alvin Wheeler and Art Richardson.
    Robert E. Sickles and Jason S. Lambert of Broad and Cassel, Tampa, for appellee, Holcombe, USA, Inc., d/b/a AutoShow Sales and Service.
   Gross, J.

This lawsuit arose out of Adrianne Nolden's financed purchase of a used car.

Central to her five-count complaint was the claim that the 27.81% interest charge under the purchase contract exceeded the 18% interest rate limit imposed by Florida's usury statute. We hold that this case is controlled not by the usury statute but by Chapter 520, Florida Statutes (2009), and affirm the summary final judgment for the defendants entered by the circuit court.

In her third amended complaint, Nolden (the "buyer") sued Summit Financial Corporation and two of its employees. She later added Holcombe, USA, Inc. (d/b/a AutoShow Sales and Service) as a fourth defendant. The complaint sets forth causes of action related to the purchase of a 2004 Pontiac Grand Prix from AutoShow and the repossession of the car in 2013 by Summit. The buyer sued both Summit Financial and AutoShow for criminal usury and for violations under Chapter 772, Florida Statutes (2009), the Civil Remedies for Criminal Practices Act. § 772.101, Fla. Stat. (2009).

Summit Financial and AutoShow answered the complaint setting forth several defenses including:

(1) A contract for the purchase of a used automobile with a deferred payment plan is not subject to Florida's general usury statute; and
(2) The interest charged is allowable under the Motor Vehicle Retail Sales Finance Act which governs the transaction.

Summit Financial moved for summary judgment. Attached to the motion was an employee's affidavit. He attested that:

• The buyer entered into a Retail Installment Sale Contract for the purchase of the car. The contract gave the buyer the option of buying the car for cash or on credit-by signing the contract, the buyer chose to buy the car on credit.
• The contract was assigned to Summit Financial, which is an automotive finance company.
• The contract was not a contract for the loan of money. The contract was for the purchase of the car.

A copy of the contract (the "contract") was attached to the employee's affidavit. The contract is titled:

RETAIL INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE

The parties to the contract are Nolden as the buyer and AutoShow as the seller. The contract is a pre-printed form with blanks filled in setting forth the details of the transaction. The first page provides an "itemization of amount financed" including cash price of the car ($11,694.10); the buyer's down payment ($2,500); and "other charges" that are itemized and added to the price (totaling $2,688.91). The total "amount financed" is listed as $11,883.01.

The contract states that the buyer may purchase the car for cash or on credit. If the buyer chooses to buy on credit, the contract sets forth the financing terms that will apply:

You, the Buyer ... may buy the vehicle below for cash or on credit. By signing this contract, you choose to buy the vehicle on credit under the agreements on the front and back of this contract. You agree to pay the Seller-Creditor ... the Amount Financed and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis at the Base Rate of 27.81% per year. The Truth-In-Lending Disclosures are part of this contract.

Truth-In-Lending Disclosures appear on the first page:

FEDERAL TRUTH-IN-LENDING DISCLOSURES ANNUAL FINANCE Amount Total of Total Sale PERCENTAGE CHARGE Financed Payments Price RATE The dollar The amount of The amount you The total cost of The cost of amount the credit provided will have paid after your purchase on your credit as credit will to you or you have made all credit, including a yearly rate. cost you. on your behalf. payments as your down scheduled payment of $ 2,500.00 is ______________ 27.810 % $ 8,163.71 $ 11,883.01 $ 20,046.72 $ 22,546.72 -------------- ----------- ------------ ------------ -------------- Your Payment Schedule Will Be: Number of Amount of When Payments Payments Payments Are Due 48 417.64 Monthly beginning 03/06/09

The contract provides that it is assignable, and the copy of the contract in evidence shows that it was assigned to Summit Financial.

AutoShow also moved for summary judgment. Its motion was supported by the affidavit of its office manager, who attested to the following relevant facts:

• The buyer purchased the car from AutoShow in an installment sales transaction and the buyer executed a Retail Installment Sales Contract.
• AutoShow is a licensed motor vehicle retail installment seller.
• The buyer was given a copy of the contract at the time of her purchase.
• After the buyer purchased the car, the contract was sold to Summit Financial.

AutoShow also filed two certificates issued by the Florida Office of Financial Regulation. The certificates demonstrate that AutoShow was licensed to conduct business as a "Motor Vehicle Retail Installment Seller" under Chapter 520, Florida Statutes, and Summit Financial was licensed to conduct business as a "Sales Finance Company" under Chapter 520.

The buyer filed depositions of witnesses and her own sworn statement, none of which raise an issue of material fact.

The Circuit Court Properly Ruled that the Contract Was Not Subject to Florida's General Usury Statute

Summary judgment was properly granted on two grounds. First, the "legal rate" of interest set forth in the Motor Vehicle Retail Sales Finance Act is the rate applicable to this transaction. Second, the extension of credit for the purchase of goods is not a "loan" under the usury statute.

Usury requires proof of four elements: (1) an express or implied loan; (2) a repayment requirement; (3) an agreement to pay interest in excess of the legal rate; and (4) a corrupt intent to take more than the legal rate for the money loaned. Oregrund Ltd. P'ship v. Sheive , 873 So.2d 451, 456 (Fla. 5th DCA 2004). The buyer, as the party claiming usury, has the burden of establishing its elements. Video Trax, Inc. v. NationsBank, N.A. , 33 F.Supp.2d 1041 (S.D. Fla. 1998).

Here, the parties disputed the third element, the "legal rate" of interest, and the first element, whether the transaction was a "loan."

I. The "Legal Rate" of Interest is Set Forth in the Motor Vehicle Retail Sales Finance Act

The buyer argues that the legal rate of interest that applies to her transaction is set forth in the usury statute, Chapter 687, Florida Statutes (2009). AutoShow and Summit Financial contend, as the trial court ruled, that the legal rate of interest for this transaction is set forth in the Motor Vehicle Retail Sales Finance Act, Chapter 520, Florida Statutes (2009). The trial court's finding is correct because (1) the contract is a retail installment sales contract; and (2) under the rules of statutory construction, the more specific statute controls over the general usury statute.

A. This Transaction Resulted in a Retail Installment Sales Contract

In order for AutoShow and Summit Financial to charge the interest rate permitted by Chapter 520, it was first necessary to establish that the transaction resulted in a "Retail Installment Sales Contract." The trial court's finding on this issue is supported by the following undisputed evidence:

1. The title of the document is Retail Installment Sale Contract. The title appears in bold capital letters on the first page.
2. The agreement itself complied with the statutory requirements imposed on Retail Installment Sales Contracts. The agreement includes the requisite "notice to buyer" section and a separate written itemization of the amount financed. § 520.07, Fla. Stat. (2009).
3. The terms of the agreement fit squarely within the statutory definition of a Retail Installment Sales Contract:
"Retail installment contract" ... means an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken by a seller from a retail buyer as security, in whole or in part, for the buyer's obligation.
§ 520.02(17), Fla. Stat. (2009).
4. AutoShow and Summit Financial were licensed under Chapter 520. The buyer met the definition of a buyer as that term is defined by Chapter 520.
5. The parties' conduct under the agreement supports the court's finding that it was a Retail Installment Sales Contract. The buyer received a car. The seller received a piece of paper evidencing the buyer's obligation to pay for the car in installments with interest. The seller also retained a lien as security for the buyer's obligation.

For these reasons, the trial court's finding that the contract was a retail installment sales contract is supported by the title of the document, the language of the document, the terms of the document, the characteristics of the parties, and the conduct of the parties.

B. Rules of Statutory Construction Compel the Conclusion That the Legal Interest Rate Set Forth in Chapter 520 Applies to This Transaction, and Not the 18% Interest Rate Contained in the Usury Statute

Section 520.08 identifies four classes of vehicles and sets forth a sliding scale which allows the imposition of a higher finance charge for transactions involving older vehicles. For the buyer's car, Chapter 520 dictated that the finance charge "shall not exceed ... $17 per $100 per year." § 520.08(1)(d), Fla. Stat. (2009). In lieu of a "finance charge," Chapter 520 permits imposition of "simple interest" so long as the simple interest rate does not exceed the finance charge permitted by section 520.08 on the unpaid balance. § 520.085, Fla. Stat. (2009). Here, it is undisputed that the interest rate of 27.810% was permissible under Chapter 520.

Under the usury statute, interest exceeding 18% is usurious. § 687.02, Fla. Stat. (2009). Therefore, the usury statute conflicts with Chapter 520 which allows the imposition of higher interest rates.

"When reconciling statutes that may appear to conflict, the rules of statutory construction provide that a specific statute will control over a general statute...." Fla. Virtual Sch. v. K12, Inc. , 148 So.3d 97, 102 (Fla. 2014). Thus,

Under basic statutory principles, when two statutes embrace the same subject and produce contradictory results, we are compelled to construe the statutes so that the specific statute is given effect and the general statute is given effect only to the extent that it does not contradict the specific statute.

Lunohah Invs., LLC v. Gaskell , 158 So.3d 619, 621 (Fla. 5th DCA 2013).

Here, the two statutes embrace the same subject (allowable interest rates), and produce contradictory results (what is usurious under Chapter 687 is permissible under Chapter 520). For this reason, the trial court was "compelled" to give effect to the more specific statute (Chapter 520) while giving effect to the more general statute (the usury statute) only to the extent the general statute did not contradict the specific statute. Lunohah , 158 So.3d at 621 ; see also A to Z Props., Inc. v. Fairway Palms II Condo. Assoc., Inc. , 137 So.3d 453 (Fla. 4th DCA 2014).

Because the statutes covered the same subject yet reached contradictory results, the circuit court properly applied the rules of statutory construction and concluded that the interest rate set forth in Chapter 520 governs this retail installment transaction involving the sale of a motor vehicle. The interest charged did not exceed the permissible interest rate allowed under Chapter 520 and the contract was not usurious under Chapter 687. The defendants were entitled to entry of summary judgment.

II. The Agreement in This Case Is Not a "Loan" Under the Usury Statute

The defendants were also entitled to entry of summary judgment because the transaction in this case was not a "loan"

under the usury statute. The buyer argues that the usury statute is clear and unambiguous and that it applies to all contracts charging interest unless the transaction is specifically excluded under Chapter 687. The statute, however, expressly applies only to "contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of a debt." § 687.02(1), Fla. Stat. (2009).

"The law is well settled that usury can only attach to a loan of money, or to the forbearance of a debt...." Davidson v. Davis , 59 Fla. 476, 52 So. 139, 139 (1910) ; see also Nelson v. Scarritt Motors , 48 So.2d 168, 168-69 (Fla. 1950) ("[O]ur usury statutes have generally been construed as if directed to contracts for the loan of money."). In order to determine whether a transaction is a "loan" within the meaning of the usury statute, courts look to the substance of the transaction. Oregrund , 873 So.2d at 457.

Florida courts have repeatedly held that contracts to secure the price of property sold are not governed by general usury laws.

[T]he usury statutes condemn usury charges made as an incident to a loan of money. We have held that the same rule does not apply to a transaction representing the purchase price of property.

Perry v. Beckerman , 97 So.2d 860, 862 (Fla. 1957) (citing Davidson , 52 So. at 139 (contract for sale of land); Scarritt Motors , 48 So.2d at 168 (contract to purchase used car "not amenable to the charge of usury.") ).

A 1958 Attorney General Opinion recognized that sellers and finance companies qualified under Chapter 520 receive "rights and privileges" including the ability to enter contracts that are not "amenable to the general usury statutes." Op. Att'y Gen. Fla. 58-56 (1958).

The third district relied upon the Attorney General Opinion in B & D, Inc. of Miami v. E-Z Acceptance Corp. , 186 So.2d 29 (Fla. 3d DCA 1966). B & D involved the enforceability of retail installment sales contracts for used motor vehicles where the contracts charged interest in excess of that allowed by the general usury statute. The court found that the contracts "are not subject to the general usury statutes." Id. at 30.

Taylor v. First Nat'l Bank of Miami , 270 So.2d 379 (Fla. 3d DCA 1972), is even more factually on point. There, the buyer defaulted on a motor vehicle retail installment sales contract. Id. at 380. The buyer's car was repossessed and sold, and the assignee of the contract sued the buyer for the deficiency. Id. The buyer argued that the contract was usurious "on its face." Id. The court disagreed, finding that the contract was controlled by Chapter 520 and that the finance charges were not in excess of those authorized by section 520.08. Id. (citing Scarritt Motors , 48 So.2d at 168 ).

The buyer has offered no legal basis to distinguish this case from B & D , Taylor , and Scarritt Motors . On this record, the circuit court properly found that the contract in this case, to secure the price of property sold, is not subject to Florida's general usury statutes. It is within the purview of the legislature to decide what interest rates are permissible; Chapter 520 contains a legislative determination that some higher risk loans are entitled to a higher interest rate than the one allowed by the general usury statute. There are no disputed material facts that preclude the entry of the summary judgment below.

Section 687.12, Florida Statutes (2009), Did Not Require the Words "Chapter 520" to Appear on the Face of the Agreement

We briefly address the buyer's argument that the words "Chapter 520"

were required to appear on the face of the agreement to exempt the agreement from the usury statute. This argument is based on a misapplication of section 687.12, Florida Statutes (2009), known as the "parity exception."

Section 687.12 is entitled "Interest rates; parity among licensed lenders and creditors." Under that section, licensed lenders are permitted to take advantage of interest rates permitted by a different class of licensed lender. South Pointe Dev. Co. v. Capital Bank , 573 So.2d 939, 941 (Fla. 3d DCA 1991). For instance, a bank licensed under chapter 658 can charge the same interest rate as a savings and loan association licensed under chapter 665 so long as the bank complies "with all the requirements imposed on such a lender for the type of loan it is making," and indicates on the instrument "the specific chapter of the Florida Statutes authorizing the interest rate charged." Id. (quoting § 687.12(4) ).

The parity exception is not applicable to the transaction in this case because the seller here was licensed under Chapter 520 and was entitled to enjoy the "rights and privileges of said statute" by virtue of its license under that chapter. Op. Att'y Gen. Fla. 58-56 (1958). One of those rights was the right to charge interest in an amount allowed under Chapter 520 even where that interest rate exceeds the amount permitted by the usury statute. In this transaction, the lender was not trying to take advantage of a rate authorized for a different type of lender under a different chapter of the Florida Statutes.

Only lenders "making loans ... at a rate of interest that, but for this section , would not be authorized" are required to indicate on the instrument "the specific chapter of the Florida Statutes authorizing the interest rate charged." § 687.12(4), Fla. Stat. (2009) (emphasis added). AutoShow was not required to write "Chapter 520" on the agreement because, as a licensed seller under Chapter 520, AutoShow did not need to rely on the parity exception to charge the interest rate allowed by Chapter 520.

Affirmed .

Warner and Levine, JJ., concur.

      All references are to the 2009 version of the statute, the version in effect when the contract was executed. See Holland v. Gross , 89 So.2d 255, 258 (Fla. 1956).

      AutoShow was licensed as a "motor vehicle retail installment seller," "a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions." § 520.02(11), Fla. Stat. (2009). Summit Financial was licensed as a "sales finance company," "a person engaged in the business of purchasing retail installment contracts from one or more sellers." § 520.02(19), Fla. Stat. (2009). The buyer was a "retail buyer," "a person who buys a motor vehicle from a seller not principally for the purpose of resale, and who executes a retail installment contract in connection therewith...." § 520.02(16), Fla. Stat. (2009).

      The formula for calculating the finance charge in terms of dollars per $100 per year is
      Finance Charge ÷ Amount Financed = Finance Charge Length of time $100 per $100 per year Financed
      See In re Corcoran , 268 B.R. 882, 888 (M.D. Fla. 2001). Plugging in the numbers in this case, leads to the conclusion that the finance charge in this case was $16.48 per $100 per year, which is less than the $17.00 per year allowed by section 520.08(1)(d) :
      $8163.71 ÷ $11,883.01 = $16.48/year 4.17 years $100


author: Levine, J.

text:
    Edmond ST. FLEURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-787
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The issue for our consideration is whether the evidence presented at trial was sufficient to support a conviction for disorderly conduct. We find that because the state failed to prove that appellant posed an imminent danger to others or that appellant's words incited others to breach the peace, the trial court erred when it denied appellant's motion for judgment of acquittal on his disorderly conduct charge. Accordingly, we reverse appellant's conviction for that charge.

Appellant went to a pet store to purchase a pet lizard. A store employee began questioning appellant about whether he would be able to take care of the lizard. The store manager then came over to tell appellant that the store would not be selling him the lizard because the manager did not think he would be able to take care of it.

Upon hearing this, appellant began to loudly demand that the manager sell him the lizard. His argument with the manager caused patrons of the store to stop and stare. Others simply left the store. At this point, the manager asked appellant to leave, but appellant refused. The manager then called the police.

Two deputies from the Broward Sheriff's Office were the first to respond. Appellant told them that he did not want to leave the store because he wanted to buy the particular lizard he had been considering. One of the deputies asked appellant to produce his identification. Appellant did not cooperate and explained that his license was in his car. Appellant became boisterous and began cursing at the deputies, who repeatedly told him to calm down. Around this time, two more deputies arrived and instructed the remaining customers in the store to exit the premises. At no time did appellant threaten violence against any of the customers or the officers.

Appellant was then informed that he was being placed under arrest for disorderly conduct because he was being loud and boisterous. One of the deputies attempted to handcuff appellant while another tried to grab his arm. Appellant started to thrash back and forth and then punched one of the deputies in the chest. Eventually, the officers were able to tase and handcuff appellant. Appellant was arrested and charged with disorderly conduct and resisting a law enforcement officer with violence.

At trial, after the state rested its case, appellant moved for judgment of acquittal on the disorderly conduct charge, arguing that the state had failed to prove the elements of disorderly conduct. The trial court denied the motion. The jury found appellant guilty. Appellant appeals his conviction and sentence for disorderly conduct.

We review de novo the denial of a motion for judgment of acquittal. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

Section 877.03, Florida Statutes (2016), which criminalizes disorderly conduct, provides:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree ....

To withstand constitutional challenge, the Florida Supreme Court has limited the scope of section 877.03"to words which 'by their very utterance ... inflict injury or tend to incite an immediate breach of the peace; or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others." State v. Saunders , 339 So.2d 641, 644 (Fla. 1976) (citations omitted).

The statute is to be construed so that "no words except 'fighting words' or words like shouts of 'fire' in a crowded theatre fall within its proscription ...." Id. Therefore, "a violation of Fla. Stat. § 877.03, F.S.A., requires more than the creation of a mere annoyance." Id. at 643 ; see Chaplinsky v. State of New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (identifying the types of speech that can be regulated, including fighting words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace"). For example, mere boisterous behavior, even if it disrupts the operations of a business and draws onlookers' attention, is not by itself enough to sustain a disorderly conduct conviction.

In Smith v. State , 967 So.2d 937 (Fla. 2d DCA 2007), the defendant was inside a bank yelling and cursing at a bank employee and subsequently at a police officer who responded. Customers could hear the defendant's verbal attacks, and some even made comments about the language being used. The Second District held that the evidence did not support the conviction of disorderly conduct, whether it occurred inside or outside the bank, because there was no evidence that the bank customers "responded to [the defendant's] words in any particular manner" or were incited to engage in an immediate breach of the peace. Id. at 940.

In Fields v. State , 24 So.3d 646 (Fla. 3d DCA 2009), the defendant's conviction for disorderly conduct was also reversed. There, a crowd gathered to watch the defendant yelling while he was on the phone in the doorway of a bank. When an officer responded, a physical altercation ensued, making the bank customers afraid to enter or exit the bank. The Third District reversed the defendant's conviction for disorderly conduct, noting:

[T]he mere fact that other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct. Instead, there must be some evidence that the crowd is actually responding to the defendant's words in some way that threatens to breach the peace.

Id. at 648 (citation omitted).

The instant case is distinguishable from Wiltzer v. State , 756 So.2d 1063 (Fla. 4th DCA 2000), on which the state relies. There, the defendant's conviction for disorderly conduct was upheld because the defendant pushed the officer and threw his wallet at him when the officer informed him that the store was closing and he would have to leave. It was only after the defendant made this physical contact that the officer arrested the defendant for disorderly conduct. This court determined that the defendant's "physical conduct during the encounter with [the officer] was sufficient to sustain a conviction under section 877.03." Id. at 1066. Here, in contrast, appellant did not use any force or threaten any violence until after the deputies had arrested him for disorderly conduct.

In the instant case, there was no evidence introduced at trial that appellant posed an imminent danger to others. In fact, the evidence showed that appellant did not threaten any violence or participate in any violent act until he was arrested for disorderly conduct. This post-arrest conduct cannot form the basis for a disorderly conduct charge. Furthermore, no evidence suggested that appellant's words amounted to "fighting words" or that those who gathered to watch what was going on were inclined to breach the peace. Instead, the evidence showed a disruption in business, which is insufficient grounds for a disorderly conduct conviction. See Fields , 24 So.3d at 648 ; Smith , 967 So.2d at 940. For the foregoing reasons, we reverse the conviction for disorderly conduct.

Reversed and remanded.

Warner and Gross, JJ., concur.

      Appellant does not appeal his conviction and sentence for resisting a law enforcement officer with violence.


author: Per Curiam.

text:
    Kathleen M. WEISS a/k/a Kathleen M. Weiss O'Neil, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee FOR NOMURA ASSET ACCEPTANCE CORPORATIONMORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR4, Wells Fargo Bank, N.A., s/b/m Wachovia Bank, N.A., Sunset Lakes Master Association, Inc., Appellees.
    No. 4D17-1212
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.
    Karusha Y. Sharp, and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee; and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for appellee HSBC Bank USA, National Association, as Trustee for Nomura Asset Acceptance Corporation Mortgage Pass-through Certificates, Series 2005-AR4.
   Per Curiam.

Affirmed. See Bolous v. U.S. Bank Nat'l Ass'n , 210 So.3d 691 (Fla. 4th DCA 2014).

Warner, Taylor, and Levine, JJ., concur.


text:
    Fred MASSARO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2245
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Fred Massaro, Moore Haven, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the denial of appellant's Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence, but we reverse the portion of the order prohibiting appellant from filing any further pro se pleadings. The trial court did not give appellant notice or an opportunity to respond before entering the order. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; Jones v. State , 221 So.3d 786 (Fla. 1st DCA 2017) ; Stokes v. State , 50 So.3d 1234 (Fla. 4th DCA 2011) ; Hines v. State , 949 So.2d 1086, 1087 (Fla. 4th DCA 2007).

Affirmed in part; reversed in part; remanded.

Gross, Taylor and Conner, JJ., concur.


text:
    Armando RIVAS, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee FOR The CERTIFICATE HOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-33CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-33CB, Luz C. Rivas, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Bank, FSB, Estates of Boynton Waters West Homeowners' Association, Inc., Tenant, Appellees.
    No. 4D17-3824
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Armando Rivas, Boynton Beach, pro se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Adam G. Schwartz of Akerman LLP, West Palm Beach, for appellee The Bank of New York Mellon.
   Per Curiam.

Affirmed. The appellant may not attack the underlying foreclosure judgment through appeal of an order granting possession of the property after sale. See Dalrymple, Sr. v. Wells Fargo Bank , N.A. , 237 So.3d 389 (Fla. 4th DCA 2018). Appellant was not denied his right of redemption because the right of redemption exists only until the issuance of the certificate of sale, which took place, and certificate of title issued. See § 45.0315, Fla. Stat. (2017). Additionally, there was no procedural error with issuance of the writ of possession because it was issued after denial of appellant's objection to the sale and after issuance of the certificate of title. See Caplan v. Neumann , 699 So.2d 1052 (Fla. 4th DCA 1997) (holding a writ of possession must be issued after resolution of a timely objection to the sale).

Warner, Taylor and Levine, JJ., concur.


text:
    Rena AMRO, Appellant, v. Ronald GAZZE, Appellee.
    No. 4D16-3610
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Jonathan Mann and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Cynthia L. Greene and Sonja A. Jean of Law Offices of Greene Smith Jean, P.A., Coral Gables, and Elisha D. Roy of Law Offices of Elisha D. Roy, P.A., West Palm Beach, for appellee.
   Conner, J.

The appellant ("Former Wife") appeals final orders entered after the appellee ("Former Husband") moved to enforce the final judgment dissolving their marriage and approving a marital settlement agreement between the parties. Former Wife raises four issues on appeal, contending the trial court erred by (1) awarding Former Husband costs with no basis identified for the award or explanation of the costs awarded; (2) awarding Former Husband six months of rent; (3) failing to articulate sufficient facts to award monetary damages to Former Husband for repairs to the former marital residence; and (4) awarding attorney's fees to Former Husband without identifying the basis for the award and articulating a reasonable hourly rate and a reasonable amount of time expended. We affirm the trial court without discussion on the first three issues. We reverse and remand as to the issue pertaining to the attorney's fee award.

We are satisfied, based on our review of the record, that the trial court awarded attorney's fees pursuant to the provisions of the marital settlement agreement, which provided that a defaulting party was liable for attorney's fees. However, where a trial court fails to articulate the required findings as to a reasonable hourly rate or a reasonable number of hours expended, the award should be reversed and remanded with directions for the trial court to determine and articulate the required findings. See Trainor v. Trainor , 199 So.3d 523, 524 (Fla. 4th DCA 2016) ; Hay v. Hay , 944 So.2d 1043, 1048 (Fla. 4th DCA 2006). Because the trial court failed to make factual findings regarding the reasonable hourly rate or the reasonable number of hours expended for the attorney's fees awarded, we reverse the award and remand the case for the trial court to make the appropriate findings and determination as to the amount of attorney's fees to award Former Husband. If needed, the trial court is permitted to conduct further proceedings as to the amount of fees, but not entitlement.

Affirmed in part, reversed in part, and remanded.

Levine and Forst, JJ., concur.


text:
    Adenike ADEBIYI, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    No. 4D17-3852
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Adenike Adebiyi, Coral Gables, pro se.
    Katelyn R. Boswell, Assistant General Counsel, Florida Department of Health, Tallahassee, for appellee.
   Per Curiam.

We reverse the final order of the Board of Nursing suspending appellant's nursing license because the board issued the order pursuant to an informal hearing when a formal hearing was required. When it became apparent in the informal hearing that the appellant disputed the underlying facts of the proceeding, a formal hearing should have been convened. See § 120.57(1), Fla. Stat. (2017) ; DeRosa v. State, Dep't of Fin. Servs. , 175 So.3d 946 (Fla. 4th DCA 2015) ; Campbell v. Dep't of Bus. & Prof'l Regulation , Div. of Real Estate , 868 So.2d 1265, 1266 (Fla. 4th DCA 2004). Although appellee contends that appellant waived her right to a formal hearing, there is no written or oral waiver from appellant in the record-only emails from appellee's counsel assuming that appellant waived her right to a formal hearing. No election of an informal hearing is in the record, but there is a handwritten note from appellant stating that she wished to have a hearing to present her case; thus, this indicates appellant disputed the facts surrounding the Department's proposed suspension.

Reversed and remanded for a formal hearing.

Warner, Gross and Taylor, JJ., concur.


text:
    Sandra BERNAL, Appellant, v. CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but as Trustee of ARLP Trust 3, Luis J. Galarza and Sonia Galarza, Appellees.
    No. 4D18-891
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Sandra Bernal, Pembroke Pines, pro se.
    No brief filed for appellees.
   Per Curiam.

Affirmed . See Fla. R. App. P. 9315(a).

Warner, Forst and Kuntz, JJ., concur.


text:
    Bryan Patrick AUGUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-685
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Prior to trial, defense counsel moved to appoint experts to evaluate the defendant for competency to proceed, indicating that the defendant appeared to suffer from mental illness. The motion expressed counsel's concerns regarding the defendant's ability to disclose facts pertinent to the proceedings and his ability to testify. The circuit court subsequently reassigned the case to the mental health specialty division, noting that the defendant's competency to proceed was an "ongoing issue."

After the case was transferred, the presiding judge appointed two experts to examine the defendant. It appears that the mental health evaluations were completed as ordered. Thereafter, the presiding judge entered an order reassigning the case back to the criminal division "upon agreement of the parties," noting, "Defense Counsel notified all parties that they are formally moving to withdraw their motion to evaluate the Defendant for competency to proceed." There is no written motion to withdraw in the record. Also, it does not appear that the trial court ever held a competency hearing or issued a written order regarding the defendant's competency to proceed.

"A trial court has the duty to make an independent determination of a criminal defendant's competency to proceed." Charles v. State , 223 So.3d 318, 329 (Fla. 4th DCA 2017). "A defendant cannot stipulate to the ultimate issue of competency, because '[a]ccepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant's competency to stand trial.' " Id. (quoting Dougherty v. State , 149 So.3d 672, 678 (Fla. 2014) ). "Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant's competency, and must enter a written order if the defendant is found competent to proceed." Dougherty , 149 So.3d at 679 ; see also Fla. R. Crim. P. 3.212(b) ("The court shall first consider the issue of the defendant's competence to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.").

From this record, we cannot tell whether a competency hearing was ever held, whether defense counsel stipulated to competency, and whether the trial court found the defendant competent based on the reports. What is clear is that there is no written order regarding the defendant's competency in the record.

Once the trial court ordered the mental health evaluations, and those evaluations were completed, the court was required to move forward with the competency hearing. See Dortch v. State , 242 So.3d 431, 432-33, 2018 WL 1617082, at *1 (Fla. 4th DCA Apr. 4, 2018) ("Once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing, and it must enter a written order on the issue. Failure to do so is fundamental error and requires reversal.") (internal citation omitted). We therefore reverse and remand with instructions for the trial court to determine the defendant's competency nunc pro tunc , if possible, and if not, the judgment and sentence should be vacated and the case set for trial. See Dougherty , 149 So.3d at 679.

We briefly discuss two remaining issues. The trial court erred in giving the heat of passion instruction where there was no evidence to support it. See , e.g. , Douglas v. State , 652 So.2d 887 (Fla. 4th DCA 1995) (marital squabbles do not constitute reasonable provocation required for the heat of passion defense); Daley v. State , 957 So.2d 17, 18 (Fla. 4th DCA 2007) (an argument alone will not support the heat of passion defense). We find the error to be harmless. The defendant was convicted of the lesser included offense of second degree murder, so we are hard-pressed to see how the defendant was prejudiced by the inclusion of the heat of passion instruction.

The state argued that this was a case of premeditated murder and told the jury "this is not a heat of passion case." Defense counsel argued that the stabbing was an "impulsive act done by a teenager in a heated moment with no real motive," and "not an act done upon reflection." If the giving of the instruction muddied the waters, it was to the defendant's benefit. However, if there is a retrial in this case, the instruction should not be given.

Finally, the defendant's equivocal conduct was insufficient to invoke his right to remain silent.

Reversed and remanded .

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


author: CRENSHAW, Judge.

text:
    PHH MORTGAGE CORPORATION, Appellant, v. Jessika D. PARISH; David M. Parish; any and all unknown parties claiming by, through, under, and against the Herein named Individual Defendant(s) who are not known to be Dead or Alive, whether said unknown Parties may Claim an Interest as Spouses Heirs, Devisees, Grantees, or other Claimants; Springleaf Home Equity, Inc. f/k/a American General Home Equity, Inc.; Tenant #1, Tenant #2, Tenant #3, and Tenant #4 the names being fictitious to account for parties in possession, Appellees.
    Case No. 2D17-561
    District Court of Appeal of Florida, Second District.
    Opinion filed January 26, 2018
    Adam J. Knight and Jacqueline Simms-Petredis of Burr & Forman LLP, Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Jessika D. Parish and David M. Parish.
    No appearance for the remaining Appellees.
   CRENSHAW, Judge.

PHH Mortgage Corporation appeals the trial court's order granting the Parishes' motion for involuntary dismissal of PHH's foreclosure action. Because the trial court erred in concluding that Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), required dismissal of PHH's complaint even though PHH alleged a continuing state of default, we reverse.

In the June 2014 foreclosure complaint, PHH alleged that the Parishes defaulted by failing to make the August 1, 2009, payment "and all subsequent payments." Apparently, PHH had previously attempted to foreclose on the mortgage with a complaint that alleged the Parishes defaulted by failing to make the July 1, 2009, payment. The trial court dismissed that prior action without prejudice in 2013 because PHH "failed to establish that [the Parishes] [had] not paid the mortgage and therefore [PHH] [had] failed to prove a default." When ruling on the Parishes' motion for involuntary dismissal in this case, the trial court referenced Bartram and announced that it was granting the Parishes' motion because "a subsequent foreclosure action after one that's been voluntarily dismissed has to be based on a default that occurred subsequent to the date of dismissal, the prior foreclosure action, okay."

In Bartram, the supreme court explained that a "mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a 'separate and distinct' default" from the default that predicated the initial foreclosure action. 211 So.3d at 1019. And this court has explained that "alleging 'a continuing state of default at the time of the filing of the complaint [is] sufficient to satisfy the ... statute of limitations.' " Huntington Nat'l Bank v. Watters, 228 So.3d 595, 596 (Fla. 2d DCA 2017) (alterations in original) (quoting Desylvester v. Bank of N.Y. Mellon, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) ). Here, PHH based its successive foreclosure action on a separate and distinct default where PHH alleged the Parishes were in a continuing state of default. Thus, the trial court erred in ruling that Bartram required dismissal of this foreclosure action.

We also reject the Parishes' tipsy coachman argument that the default letter did not substantially comply with paragraph twenty-two of the mortgage where it provided an inaccurate amount for the Parishes to pay in order to cure the default because the Parishes did not deny the performance of that condition precedent with specificity and particularity. See Deutsche Bank Nat'l Trust Co. v. Quinion, 198 So.3d 701, 703-04 (Fla. 2d DCA 2016). Accordingly, we reverse the order granting the Parishes' motion for involuntary dismissal and remand for further proceedings.

Reversed and remanded.

CASANUEVA and LUCAS, JJ., Concur.


author: SALARIO, Judge.

text:
    STATE of Florida, Appellant, v. Destiney Lee BEERY, Appellee.
    Case No. 2D16-3289
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellant.
    Peter Lombardo of Law Office of Peter Lombardo, Bradenton, for Appellee.
   SALARIO, Judge.

The State appeals from an order granting Destiney Beery's motion to dismiss an affidavit of violation of probation pursuant to Florida Rule of Criminal Procedure 3.190. Ms. Beery argued that her probationary period had expired at the time of the alleged violation. The State argued that because Ms. Beery had absconded from probation, her probationary period had been tolled pursuant to section 948.06(1)(f), Florida Statutes. The trial court agreed with Ms. Beery. We reverse.

Section 948.06(1)(f), Florida Statutes (2012), provides, as relevant here, that "[u]pon the filing of an affidavit alleging a violation of probation ... and following issuance of a warrant under s. 901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation." The trial court held that for a period of probation to be tolled under this language, an arrest warrant must first be issued under section 901.02, Florida Statutes. Because that had not happened in this case, the trial court reasoned, the probationary period had not been tolled. The trial court ruled this way because it believed it was bound by the Fourth District's decision in Mobley v. State, 197 So.3d 572, 573-74 (Fla. 4th DCA 2016), review denied, No. SC16-936, 2016 WL 3149708 (Fla. Jun. 6, 2016). In Mobley, the Fourth District held that the text of "[s]ection 948.06(1)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled," except in the case of a warrantless arrest or a notice to appear under the statute. Id. at 574.

The Fourth District has since held that when a defendant absconds from probation, an exception to its holding in Mobley is triggered, and no warrant is required to toll the probationary period in that circumstance. See Williams v. State, 202 So.3d 917, 920-21 (Fla. 4th DCA 2016) ; see also State v. Hicks, 214 So.3d 701, 701 (Fla. 4th DCA 2017) (applying Williams in a similar holding). The trial court was without the benefit of these cases at the time it entered its dismissal order. They are, however, in keeping with our own cases, which also recognize that a period of probation is tolled from the time a probationer absconds until such time as he or she returns to probationary supervision. See, e.g., Williams v. State, 529 So.2d 366, 367 (Fla. 2d DCA 1988) ("[W]hen a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision."); see also Francois v. State, 695 So.2d 695, 697 (Fla. 1997) ("One who absconds from supervision is no longer under the controlling arm of the state."); Zaborowski v. State, 126 So.3d 405, 406, n.1 (Fla. 2d DCA 2013) (finding a lack of tolling under the particular version of the statute then in effect in part because "[t]here [was] no indication that Zaborowski was considered to be an absconder at the time of the alleged violations in 1994 or during any period during his untolled probationary term").

Accordingly, we reverse the order of dismissal and remand to the trial court for consideration of whether Ms. Beery's probation was tolled based on any allegations in the affidavit of probation that she absconded from her probation. See Hicks, 214 So.3d at 701-02 ("Accordingly, we reverse and remand to the trial court to determine under the totality of the circumstances if Appellee did in fact abscond from probationary supervision. If the trial court finds that Appellee did abscond, then Appellee's probationary period was tolled until he was arrested and the trial court would have jurisdiction to consider the VOP warrant and any amendments to it.").

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      Mobley addressed the 2012 version of section 948.06. The language of that statute has since been amended, but that amended language is not at issue in this appeal. See State v. Wheeler, 224 So.3d 852 (Fla. 1st DCA 2017). Ms. Beery has not stated which version of section 948.06 she believes applies in this case. By citing to subsection (1)(f), she appears to refer to the 2012 version. The same provision that appeared in subsection (1)(f) of the 2012 statute appeared in subsection (1)(d) of the 2009 version, which was the version in effect at the time of her alleged violation.


author: PER CURIAM.

text:
    Malcolm WATKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-219
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
    William R. Ponall of Ponall Law, Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa; and Laurie Benoit-Knox, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   PER CURIAM.

Malcolm Watkins appeals his judgment and sentences for (1) use of a computer to solicit a child for unlawful sexual activity in violation of section 847.0135(3)(b), Florida Statutes (2010) ; (2) traveling to meet a child for the purpose of engaging in unlawful sexual activity in violation of section 847.0135(4)(b) ; (3) attempted lewd battery on a child in violation of sections 800.04(4) and 777.04, Florida Statutes (2010) ; and (4) unlawful use of a two-way communications device in violation of section 934.215, Florida Statutes (2010). Of the several claims Watkins raises, we find merit only to the claim that convictions for both traveling to meet a minor and unlawful use of a two-way communications device violate double jeopardy. "[P]roof of the unlawful use of a two-way communications device [is] subsumed within the proof of the ... traveling offense[ ]," Batchelor v. State, 193 So.3d 1054, 1058 (Fla. 2d DCA 2016) (quoting Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014) ), and "there is no indication in the record that these two crimes were committed other than as part of the same criminal episode," Bermudez v. State, No. 15-4361, 235 So.3d 1057, 1057, 2018 WL 560369 at *1 (Fla. 2d DCA Jan. 26, 2018). Because one of the two offenses Watkins was convicted of was entirely proven by the other, and the record shows that Watkins had committed both offenses during the same criminal episode, convictions for both offenses violated double jeopardy. See Chepelevich v. State, 184 So.3d 1138 (Fla. 2d DCA 2015). As such, we reverse and remand for the trial court to vacate Watkins' judgment and sentence for unlawful use of a two-way communications device. We affirm all other claims raised in this appeal.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA, CRENSHAW, and SLEET, JJ., Concur.


text:
    JEDAK CORPORATION d/b/a Razzle's, Appellant, v. SEABREEZE OFFICE ASSOCIATES, LLC and Neil Hunter, Appellees.
    Case No. 5D16-3777
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Cynthia B. Beissel, and F. Bradley Hassell, of Hassell-Legal, P.A., Daytona Beach, for Appellant.
    Thomas A. Valdez, of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and Michael J. Reilly and Gabriel Dobrin, of Law Offices of James W. Kehoe, Fort Lauderdale, for Appellee, Seabreeze Office Associates, LLC.
    No Appearance for Other Appellee.
   PER CURIAM.

In this action arising from a written commercial lease agreement, Appellee, Seabreeze Office Associates, LLC ("Landlord"), obtained summary judgment for damages arising from the breach of contractual provisions requiring that Appellant, Jedak Corporation d/b/a Razzle's ("Tenant"), indemnify and provide insurance coverage to protect Landlord from losses arising from Tenant's occupancy of the premises. Although Tenant raises numerous issues on appeal, we need only address one, which we conclude is dispositive of this dispute. Because Landlord did not incur any damages that were caused by the breach of these particular lease provisions, the lower court erred in granting summary judgment in favor of Landlord and in denying summary judgment in favor of Tenant. Accordingly, we reverse and remand this cause with directions that summary judgment be entered in favor of Tenant. See Cas. Indem. Exch. v. Penrod Bros. , 632 So.2d 1046, 1047 (Fla. 3d DCA 1993) (where landlord's insurer fully covers loss, landlord suffers no compensable damages arising from tenant's breach of contract).

REVERSED AND REMANDED.

COHEN, C.J., PALMER and TORPY, JJ., concur.

      Landlord's insurer was not a party to this case.