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    Hunter v. State
    5D16-1508
    02/28/2017
   Aff.

Cir. Ct. (Seminole)


source: Caselaw Access Project

license: Public Domain

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    Hunter v. State
    5D15-4215
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    5D17-184
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    5D16-3085
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    5D16-2958
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    5D16-4237
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    5D16-4332
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    5D16-4098
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    Slater v. State
    5D16-3470
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    5D16-3321
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   Aff.

Cir. Ct. (Marion)


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Cir. Ct, (Citrus)


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    5D16-3093
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Cir. Ct. (Orange)


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    5D16-3616
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    5D16-1972
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    5D16-680
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   Aff.

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    5D16-1939
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   Aff.

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    5D16-2997
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author: LUCK, J.

text:
    S.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2066
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES and LUCK, JJ.
   LUCK, J.

S.C., after trial, was adjudicated delinquent of possessing a stolen driver’s license, in violation of Florida Statutes section 322.212(1)(a), and ordered to serve probation. S.C.’s sole contention on appeal is that the trial court erred in denying his motion for judgment of dismissal because there was no evidence he stole the driver’s license. We affirm.

On February 10, 2016, S.C. ordered an alcoholic drink from bartender Lessy Marcia at the Miccosukee Casino and Resort. Marcia asked for identification and S.C. presented a driver’s license issued to Seth Turner Pallavoda. Because the picture on the license did not look like S.C., Marcia asked another bartender to take a look, and eventually security was contacted. Miccosukee Police Officer Florian responded and questioned S.C. about the license. Initially, S.C. insisted the license was his and that he lost weight. Still unconvinced, Officer Florian ran a D.A.V.I.D. check to get additional photographs for comparison. .The photographs obtained confirmed that S.C. was not the person pictured on the license. Officer Florian decided to detain S.C., and as Officer Florian attempted to handcuff S.C., S.C. ran into the resort. Officer Florian managed to restrain S.C., and a search of S.C.’s pockets revealed other identification in a separate wallet. Two driver’s licenses in the separate wallet were issued to Mario Ruiz. S.C. claimed he found the Pallavoda license outside a store. S.C. told the officer the Mario Ruiz licenses belonged to his friend’s brother and “[h]e has no idea I took them.”

At trial, Mr. Ruiz testified that the licenses bearing his name were his but he didn’t know S.C. and never gave him permission to use his licenses. S.C. presented no evidence but moved for dismissal on the ground that the State presented no evidence the licenses were stolen. The trial court granted the motion as to the Pallavo-da license but denied the motion as to the Ruiz licenses. The trial court found S.C. guilty of the unauthorized possession of a stolen driver’s license.

S.C. contends on appeal, as he did before the trial court, that his motion for judgment of dismissal should have been granted because there was insufficient evidence he stole Mario Ruiz’ driver’s licenses. We disagree.

Section 322.212 makes it “unlawful for any person to ... [kjnowingly have in his or her possession ... any ... stolen ... driver license or identification card.” § 322.212(1)(a), Fla. Stat. (2015). “Stolen” is not defined in chapter 322, which means we give the term its plain and ordinary meaning, resorting to dictionaries where necessary and helpful. See Martin v. State, 207 So.3d 310, 317-18 (Fla. 5th DCA 2016) (“Similarly, with respect to the term ‘competition,’ although the statute does not define this term or provide examples of competition, we may resort to dictionaries to determine the meaning of an undefined statutory term.”); State v. Gaulden, 134 So.3d 981, 982 (Fla. 1st DCA 2012) (“In construing the plain language of a statute, courts are to give undefined terms their ordinary meanings, consulting a dictionary when necessary.”). “Stolen,” our dictionaries say, means “[t]o take without right or permission, generally in a surreptitious way.” American Heritage Dictionary of the English Language 1261 (Williams Morris ed., 1969); see also Webster’s New Collegiate Dictionary 828 (G&C Merriam Co., 1960) (“To take or carry away feloniously”).

Here, the evidence supported the trial court’s finding that S.C. was in possession of Mario Ruiz’ stolen driver’s licenses. Specifically, Mr. Ruiz testified that he did not know S.C. and did not give'him permission to take the driver’s licenses. S.C. confessed that Mr. Ruiz’ driver’s licenses “belong[ed] to my friend’s brother. He ha[d] no idea I took them.” S.C., in other words, took the driver’s licenses without having the permission of the owner, and he did it without the owner having any idea. S.C.’s actions fit snuggly within the definition of possessing “stolen” driver’s licenses.

S.C., in response to the confession, makes a My-Cousin-Vinny defense. There are many gems in the 1992 movie My Cousin Vinny—rated by the, American Bar Association Journal as the third greatest legal movie of all time—about trial law-yering and procedure, but in one particular scene an arrestee is being asked about shooting a store clerk after inadvertently taking a can of tuna fish. The sheriff asks:

Sheriff: When’d you shoot him?
Arrestee: What?
Sheriff: At what point did you shoot the clerk? ■ ■
Arrestee: I shot the clerk?
Sheriff: Yes. When did you shoot him?
Arrestee: I shot the clerk?

The sheriff then gets interrupted by a staff member and the interrogation abruptly ends. At the subsequent trial for the murder of the store clerk, the sheriff, recounting the confession, reads the transcript of the arrestee’s statement, “I shot the clerk,” as a declaration rather than as a question, which changed the meaning.

S.C., in My-Cousin-Vinny fashion, argues that the “he” in his confession can be read another way. S.C. contends the “he” in his statement, “He has no idea I took them,” was referring to his friend, and not the friend’s brother. S.C. claims he stole the driver’s licenses from his friend—who may have had authorization or permission to have the driver’s licenses—and not from his friend’s brother. How one views the “he” makes all the difference, S.C. says, because section 322.212(l)(a) requires the driver’s license be stolen from the person to whom it was issued, and not a third party.

' S.C. is incorrect for three reasons. First, his reading of the confession is not a reasonable one. The pronoun “he” is immediately preceded by his “friend’s brother.” S.C.’s “friend’s brother” is the subject of the prior sentence to which “he” is referring. Also, in context, S.C. made his statement' in response to Officer Florian’s question about where he found the Mario Ruiz driver’s licenses. The only person S.C. mentioned was his friend’s brother. Why, moreover, would S.C.’s friend not know S.C. took the driver’s licenses? The person who would not know that S.C, took them would.be'the friend’s brother'because they had no relationship. Mr. Ruiz testified hé didn’t know S.C.

Second, S.C. is incorrect about the confession because to the extent the “he” is subject to two reasonable readings, we review the evidence in the light most favorable to the state. The factfinder, who is viewing the witnesses’ demeanor, listening to their inflection and intonation, comparing the testimony with the other evidence and testimony in the case, is , entitled to choose one reasonable inference of the evidence oyer another. See J.H. v. State, No. 3D16-2379, 220 So.3d 508, 510, 2017 WL 2348530, at *1 (Fla. 3d DCA May 31, 2017) (“We review the trial court’s disposition of the motion for dismissal under the de novo standard, viewing the evidence in the light most favorable to the State. If, upon reviewing the evidence in a light most favorable to the State, a rational fact-finder could find the elements of the crime proven beyond a reasonable doubt, then the evidence is sufficient to sustain the adjudication of delinquency.” (quotation omitted)). Making those choices is the essence of the factfinder’s role in our justice system, and we do not second guess them on appeal. Here, the trial court’s understanding of the confession was a reasonable one that could be used to sustain the adjudication of delinquency.

Third, the other non-confession evidence supports the trial court’s finding that S.C. knowingly possessed the driver’s licenses that were taken without permission or authorization. (1) S.C. ran when Officer Flo-rian was putting him under arrest for possession, of the stolen licenses, which is consciousness of his guilt. See Thomas v. State, 748 So.2d 970, 982 (Fla. 1999) (“The law is well settled that [w]hen a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstance.” (quotation omitted)). (2) S.C. had consciousness of guilt, too, because he concealed the Mario Ruiz licenses is a separate wallet. (3) S.C. had on him the identification information of three people—himself, Mario Ruiz, and Seth Turner Pallavoda—and four driver’s licenses. (4) Pallavoda and S.C. were so different looking that the bartender called security when she was showed the license. (5) S.C. was trying to use the fake license to buy something he would otherwise not be entitled to buy. These facts, in addition to the confession, support the trial court’s finding that S.C. knew the licenses in his possession were taken from their owner without permission or authorization.

For these reasons, we affirm S.C.’s adjudication of delinquency for violating section 322.212(1)(a), and the order of probation.

Affirmed.

      . S.C. was also adjudicated delinquent for resisting a law enforcement officer without violence but that adjudication is not at issue in this appeal.

      . According to the Florida Department of Motor Vehicles' website, the Driver And Vehicle Information Database, or D.A.V.I.D., is “[a] multifaceted database that affords immediate retrieval of driver and motor vehicle information.” http://www.flhsmv.gov/courts/david/ (last visited June 22, 2017),

      . We use older dictionaries from the 1960s because that is when section 322.212 became law, Ch. 65-167, § 1, at 407, Laws of Fla,, and the terms of a statute should be given their plain and ordinary meaning as they were understood at the time of enactment. See Leftwich v. Fla. Dep't of Corrs., 148 So.3d 79, 88 (Fla. 2014) (‘‘[T]his interpretation gives effect to the plain meaning of the statute as written at the time that Leftwich committed his crimes and is consistent with legislative intent at the time the statute was enacted.”); Rogers v. Cunningham, 117 Fla. 760, 158 So. 430, 432 (1934) ("It is not only useless, but not a function of the court, to supply words or omit them from the statute which destroy the generally understood plain meaning of its terms in order to make the statute fit a situation not in the legislative mind at the time the statute was enacted, or type of carrying vehicle not defined by the statute with the nicety of distinction upon which counsel for the state insist.”); see also Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Therefore, we look to the ordinary meaning of the term ‘bribery’ at the time Congress enacted the statute in 1961.” (citation omitted)).

      . http://www.abajournal.com/gallery/top25 movies/89 (last visited June 22, 2017).

      . http://www.springfieldspringfield.cQ.ulc/ movie_script.php?movie=my-cousin-vinny (last visited June 22, 2017).


author: ROTHENBERG, C.J.

text:
    Orenthal GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-268
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and Suarez and scales, jj.
   ROTHENBERG, C.J.

Orenthal Green (“the defendant”) • appeals the trial court’s entry of an order revoking probation and sentencing him to life in prison based on unpreserved alleged errors during sentencing. Because we find that the defendant has failed to demonstrate fundamental error in the trial court’s imposition of life sentences-for violating his probation, we affirm.

BACKGROUND

In 1994, the defendant was charged with and later adjudicated guilty of kidnapping and sexual battery (case no. F94-041184E), and he was sentenced to five years in prison, followed by three years of probation. In 2001, the defendant was charged with, violating his probation. The affidavit of violation of probation included, among other violations, the defendant’s arrest for robbery with a knife, attempted robbery with a firearm, and grand theft auto. The defendant pled guilty to the violations alleged and to the substantive charges of armed robbery with a knife charged in case no. F00-12212, and grand theft of a vehicle charged in case no, F00-12262. The defendant was sentenced as a habitual violent felony offender to fifteen years in prisop, followed by ten years of probation in case no. F94-041184E; fifteen years in prison followed by ten years of probation in case no. F0CR12212; and ten years in prison in case no. F00-12262. All sentences were ordered to run concurrently.

In 2015, another affidavit of violation of probation was filed, alleging that the defendant violated the conditions of his probation by testing positive for cocaine and by failing to report to his probation officer. After a hearing, the trial court found that the defendant willfully and substantially violated his probation. Before' sentencing, the defendant moved for a continuance so that his - mother could be present for sentencing. After denying the defendant’s motion for a continuance, the trial court heard testimony regarding the defendant’s criminal history, including his prior probation violations. The trial court noted the victim’s injury in case no. F94-041184E, the concurrent sentences relating to the robbery with a knife and- the grand theft auto, and that the defendant took out a small hand gun and attempted to commit a robbery at á restaurant. Before the trial court pronounced the sentences, the defendant spoke on his own behalf. Thereafter, the trial court revoked the defendant’s probation and sentenced the defendant to life in prison in case no. F94-041184E and life in prison in case no. F00-12212, with the sentences running concurrently. The defendant timely appealed. ■

ANALYSIS .

1. The defendant’s motion for a continuance

The defendant contends that the trial court erred by refusing to grant a continuance of the sentencing hearing so that the defendant’s mother could testify. See Jones v. State, 125 So.3d 917, 919 (Fla. 4th DCA 2013) (holding that a court’s denial of a motion for continuance is reviewed for an abuse of discretion). However, our review of the record does not indicate that the defendant asked the trial court to continue the sentencing hearing to allow his mother to testify. Rather, the record before this Court reflects that the defendant merely asked the trial court to continue the hearing to allow his mother to be present for the sentencing hearing. As the defendant never informed the- trial court that he wanted his mother to be a witness at the sentencing hearing, this issue was not preserved for appellate review. Farina v. State, 937 So.2d 612, 628-29 (Fla. 2006) (stating that to preserve an issue for appellate review, the defendant must: (1) make a timely, contemporaneous objection; (2)state the legal ground for that objection; and (3) raise the same specific legal ground on appeal that was asserted as the legal ground for the objection below).

Even if this alleged error had been properly preserved, we would find no abuse of discretion. Florida Rule of Criminal Procedure 3.720(b) merely requires that the defendant be afforded “the opportunity to present matters in mitigation of sentence.” Cheatham v. State, 346 So.2d 1218, 1218 (Fla. 3d DCA 1977) (stating that “the court is not compelled under the rules to grant defendant a continuance pri- or to sentencing upon his motion therefor”); see also Jones, 126 So.3d at 919. As the defendant was given an opportunity to present mitigation evidence and has not identified any prejudice resulting from the trial court’s denial of his motion for- a continuance, we find no reversible error.

2. The trial court’s alleged reliance on uncharged offenses

Next, the defendant contends that his constitutional rights were violated during the sentencing hearing when the trial court mentioned (1) 'injuries sustained by the victim in case no. F94-041184E, as he was not charged with causing serious bodily injury in that case, and (2) the- defendant’s possession of a firearm during a robbery of a restaurant, as he pled guilty to a different robbery, during which he possessed a knife. 'These alleged errors, however, were not properly preserved for appellate review. See Farina, 937 So.2d at 628-29. In fact, after the trial court made the comments at issue, the trial court asked, “Does anybody challenge the prior criminal history of the Defendant?” In response, defense counsel stated, “No, Judge.”

Nevertheless, even if these alleged errors had been properly preserved, a trial court has wide discretion to consider all relevant information when imposing an appropriate sentence for the crime the defendant committed. Charles v. State, 204 So.3d 63, 67 (Fla. 4th DCA 2016) (“In sentencing within the law’s minimum and maximum, the discretion afforded is about as broad as discretion can be for trial judges.”) (quoting Whitmore v. State, 27 So.3d 168, 173 (Fla. 4th DCA 2010) (Farmer, J., dissenting)); Bracero v. State, 10 So.3d 664, 666 (Fla. 2d DCA 2009). The conduct which led to the charges brought against the defendant was relevant when considering the appropriate sentence to impose after the defendant violated his probation. See Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002) (“While the due process clause does, prohibit a court from considering charges of which an accused has been acquitted when passing sentence, it does not preclude the court from considering all relevant factors when imposing a sentence authorized for the crime of which the defendant was convicted.”) (footnote omitted).

As for the victim’s injuries in case no. F94-041184E, the charging document alleged that the defendant used physical force and violence in the commission of the sexual battery, the original sentencing scoresheet took into consideration the victim’s injuries and the arrest .affidavit, which lays out in detail the injuries the victim suffered. Similarly, as to the defendant’s possession of a firearm during an armed robbery of a restaurant, we note that his arrest for this offense was described in the affidavit of violation of probation that resulted in the defendant’s revocation of probation in case no. F94-041184E, and the defendant pled guilty to violating the conditions of his probation. In short, this information was relevant and properly considered by the trial court when it reviewed the defendant’s criminal history and considered his repeated violations of probation. We therefore find no error.

3. Alleged illegal sentence in case no. F94-041184E

Lastly, the defendant contends that the trial court’s imposition of a life sentence for the kidnapping and sexual battery charged in case no. F94-041184E was illegal. This error was neither preserved by a contemporaneous objection during the sentencing hearing nor by raising the issue under Florida Rule of Criminal Procedure 3.800(b), which precludes the defendant from raising the error on direct appeal. Brannon v. State, 850 So.2d 452, 456 (Fla. 2003). However, even if the error had been preserved, the error would not constitute fundamental error because the defendant is serving a concurrent life sentence for an armed robbery in case no. F00-12212. Jordan v. State, 143 So.3d 335, 337 (Fla. 2014) (“The concurrent sentence doctrine provides that in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal.”).

CONCLUSION

In summary, we find that the defendant has neither properly preserved the trial court’s alleged sentencing errors, nor demonstrated fundamental error on appeal. We additionally note that the defendant contends that he was not given credit for time served. However, this issue was not properly preserved for appellate review, and we therefore affirm without prejudice to the defendant to file a rule 3.800 motion with the trial court to address this issue.

Affirmed.


text:
    Steven WATKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2268
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Steven Watkins, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Steven Watkins appeals the judgment and sentence imposed as a result of Watkin’s nolo contendere plea to felony petit theft following the trial court’s denial of his motion to suppress the identification made by the victim of the theft. .The three grounds raised for reversal are that: (1) the trial court failed to determine that, there was a factual basis to support Wat-kin’s plea to felony, petit theft; (2) trial, counsel provided ineffective assistance of counsel by stipulating that there was .a factual basis to support the plea; and (3) trial counsel provided ineffective assistance of counsel by stipulating, rather than challenging, the propriety of the enhancement of the petit theft to a felony theft based upon Watkins’ prior petit theft convictions. Although we affirm without prejudice to' allow Watkins to seek postconviction relief under Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel and/or Florida Rule of Criminal Procedure 3.800 to correct an illegal sentence, we briefly discuss the three grounds raised on direct appeal.

As to the first ground—that the trial court erred by failing to • determine whether there was a factual basis to support the plea—we conclude this claim is without merit both factually and procedurally. First, the record reflects that defense counsel stipulated to the existence of a factual basis and specifically waived on the record any further showing to demonstrate that factual basis. Second, as the trial court noted on the record, it had just heard' the motion to suppress the out-of-court photograph identification, which included the testimony of the victim and the police officers, and based on the testimony, the trial court determined that there was a factual basis to support the plea.

The Court: Ordinarily the State recites a factual basis. In your case I had evidence[,] we heard from the victim here. We heard police officers. So I find that there is a factual basis.

Recognizing that his trial counsel stipulated to the existence of a factual basis for the plea, Watkins argues in his second ground that this stipulation constitutes ineffective, assistance of counsel. Although a defendant, may raise a claim of ineffective assistance of trial counsel on direct appeal, see Cumper v. State, 506 So.2d 89, 89 (Fla. 2d DCA 1987), in order to obtain relief on direct appeal, he must demonstrate ineffective assistance of counsel which is clear on the face of the record. Fones v. State, 765 So.2d 849 (Fla. 4th DCA 2000). Watkins has failed to meet that standard here. The victim testified that while seated on the steps next to Watkins outside a Circle K. Store, Watkins engaged the victim in “small talk” and then quickly reached into the victim’s pocket and stole his wallet. Based on the description provided by the victim and video surveillance utilized.by the store, law enforcement issued a BOLO describing the. suspect and the suspect’s clothing. Although the physical description provided by the victim was not entirely accurate (a black male in his mid 30’s, 5’8”-5’9” with a thin build, and wearing a tank-top, jeans, a sparkly belt, and a bucket hat), when Watkins was seen at the same Circle K store hours later, he was wearing the clothing described by the victim. The victim also positively identified Watkins from a photographic lineup and testified at the suppression hearing that he had a clear memory of the person’s face because he got a good look at him. We, therefore, cannot find clear ineffective assistance of counsel for stipulating to a factual basis for the plea, and we additionally conclude that the stipulation was unnecessary based on the trial court’s own finding, based on the evidence it heard, that there was a factual basis for the plea. Lastly, on the face of the record, we do not find that defense counsel provided ineffective assistance of counsel by stipulating to the prior convictions for petit theft relied on by the trial court to enhance the current petit theft conviction to a felony theft. However, this ruling is without prejudice to Watkins to seek postcon-viction relief, if appropriate, under rule 3.850 and/or rule 3.800.

Affirmed.

      . Watkins indirectly contests the trial court's denial of his motion to suppress the out-of-court photographic lineup identification, but contends that he cannot properly address that issue on appeal because the photographic lineup was not included in the record on appeal. However, because Watkins entered into a negotiated plea to the felony theft; he did not reserve his right to appeal the denial of his motion to suppress the identification when he entered his plea; and he has not moved to withdraw his plea, we conclude that the issue of whether the photographic lineup procedure was §o. unduly suggestive so as to give rise to a substantial likelihood of a mis-identification has not been preserved for appellate review on direct appeal. See Camerota v. State, 959 So.2d 1240, 1242 (Fla. 4th DCA 2007) (“Generally, to obtain appellate review qf a guilty or no contest plea, the defendant must specifically reserve dispositive issues for appeal in the trial court,”).

      . “Be on the look out.”


author: SALTER, J.

text:
    Latonya FRANCIS, Appellant, v. TOWER HILL PRIME INSURANCE COMPANY, Appellee.
    No. 3D16-2114
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017.
    Rehearing Denied August 15, 2017

      The Mineo Salcedo Law Firm, P.A., and Nathan Teplitsky (Davie); Fox & Loquas-to and Gray Proctor (Orlando), for appellant.
    Rumberger, Kirk & Caldwell and Nicole Sieb Smith and Allan J. Rotlewicz, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   SALTER, J.

Latonya Francis appeals a final summary judgment in favor of her insurer (Tower Hill Prime Insurance Company, “Tower Hill”), regarding her claims for rainwater damage to her home’s interior caused by roof leaks. We reverse, finding that genuine issues of material fact exist regarding (l)Tower Hill’s adjustment and payment of the “actual cash value” of the damage covered by Ms. Francis’s insurance policy, and (2) the applicability of the policy’s exclusion for “wear and tear” to a vague, unliquidated, and inchoate claim for damage to the roof itself.

Tower Hill paid the amount computed by its own appraiser for the interior repairs, less the applicable policy deductible and depreciation. The insurer notified her that the allowed amounts were based on “actual cash value,” and that she could make a claim for depreciation by providing documentation that the repairs were completed. See Trinidad v. Florida Peninsula Ins. Co., 121 So.3d 433, 439 n.3 (Fla. 2013).

Ms. Francis used the amounts paid by Tower Hill to repair her roof rather than the damaged interior of the home. Tower Hill advised Ms. Francis that she could submit supplemental claims for damage revealed as repairs were made.

Ms. Francis sued Tower Hill for breach of the insurance contract based on an assertion that Tower Hill’s payments were less than the actual cash value of the damage to the interior. Tower Hill moved for summary judgment, arguing that the insured was not entitled to further compensation because she had received payment for the actual cash value of her loss, and because she did not use the insurance proceeds to repair the reported damage. Tower Hill maintained that Ms. Francis had not submitted a claim for the roof itself, and that any such claim would have been disallowed as a result of the exclusion for “wear and tear.”

The trial court granted Tower Hill’s motion for final summary judgment and denied a subsequent motion for rehearing. This appeal followed.

Analysis

The final summary judgment is subject to de novo review. The trial court is obligated to consider the “summary judgment evidence” in the record, and any reasonable inferences from that evidence, in the light most favorable to the non-moving party. Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 864-65 (Fla. 3d DCA 2011). If the summary judgment evidence presents any genuine issue of material fact, summary judgment should not be granted. Id.

In the present case, the record contains Ms. Francis’s deposition testimony and the two sworn statements of proof of loss prepared by her adjuster, Stellar Public Adjusting Services. These two claims included line item estimates totaling over $139,000.00 (after applying the $1,000.00 deductible to each claim), versus Tower Hill’s appraiser’s (Pacesetter Claims Service) computation of approximately $15,000.00 (after deductible). Ms. Francis’s sworn statements of proof of loss were signed by the adjuster before a notary and constituted summary judgment evidence under Florida Rule of Civil Procedure 1.510(c). It follows that the widely-divergent estimates of covered repair costs created a genuine issue of material fact precluding summary judgment regarding the roof leak claims. See Javellana v. Tower Hill Signature Ins. Co., 23 Fla. L. Weekly Supp. 1031, 2016 WL 3971028 (Fla. 11th Cir. Ct. Mar. 31, 2016).

The next question is whether summary judgment was also appropriate regarding any claim for damages to the roof itself (in connection with the events that gave rise to the losses claimed for leakage to the interior of the home for April 22 and 29, 2015). Tower Hill persuaded the trial court that Ms. Francis could not raise roof damage issues because (a) she did not include that damage (only water damage inside the house) during her deposition, (b) neither she nor her adjuster made a claim for those costs in accordance with the insurance policy, and (c) Tower Hill’s adjuster inspected the property and demonstrated that any such roof damage was excluded by the “wear and tear” exclusion in the policy.

On this point, Ms. Francis points to Tower Hill’s letters enclosing the two payments made by Tower Hill. Although Tower Hill only adjusted the two water damage claims, it notified Ms. Francis “that the claim you have presented to Tower Hill Prime Insurance for roof damage does not qualify for payment,” because “the damages to your roof are due to wear and tear and not a covered peril.” The letters also state:

We also want to bring to your attention that the amount of [payment allowed by Tower Hill and enclosed] does not necessarily constitute a full and final settlement of your claim for damages associated with your claimed loss. You may submit supplemental claims for any damage discovered in the covered reconstruction and repair of the above mentioned property.

In Tower Hill’s adjuster’s notes in the record, evaluation of any roof damage was “pending until we can determine any or if any shingles were damaged by covered peril,” because the adjuster needed a tarp over the roof removed and photos of any damage before the restoration (the notes state: “Possible supplement for roof only if storm damage is found when tarp removed and photos can be taken.”). Thereafter, the tarp was removed and Tower Hill’s adjuster determined that “the damages were due to deterioration of the sealant around the vents of the roof as opposed to weather storm(s).”

The complaint and record are unhelpful regarding the extent of the claim regarding the roof, referring vaguely to “the damage sustained to the building on the subject property, damage to contents, and loss of use of the property and possessions taken from therein.” Nevertheless, Tower Hill sought an adjudication in its motion for summary judgment that any claim by Ms. Francis for roof damage was excluded by the policy or otherwise precluded. The trial court’s unelaborated order that Tower Hill’s motion for summary final judgment is “granted” must also be reversed insofar as it may have addressed roof damage.

Based on our reading of the policy language, complaint, and other summary judgment evidence, Ms. Francis has not yet presented a proper, detailed, written claim for roof damage to Tower Hill for processing, and questions regarding both coverage and extent of loss, if any, have not crystallized for assertion as a cause of action for breach.

Finally, we reject Tower Hill’s argument to the trial court and to us that this record is governed by Slayton v. Universal Property & Casualty Insurance Co., 103 So.3d 934 (Fla. 5th DCA 2012). Slayton held that an insurer’s payment of its own adjuster’s estimate less the deductible (and agreeing to consider “supplemental claims for additional damages discovered during or arising from' the repairs”) was not itself a breach of a policy authorizing such a procedure. Id. at 936. In that case, unlike the case before us, Slayton had failed to preserve the argument that the insurer violated section 627.7011, Florida Statutes, as in effect in 2009. In the present case, Ms. Francis raised and preserved the argument.

For these reasons, we reverse the final summary judgment and remand the case to the trial court for further proceedings.

      . Fla. R. Civ. P. 1.510(c).

      . Recoverable depreciation was not included for this comparison, but would have been included in payments to the insured upon proof that the repairs were completed.


author: SCALES, J.

text:
    HERITAGE PROPERTY AND CASUALTY INSURANCE CO., Appellant, v. Octavio ROMANACH and Abigail Romanach, Appellees.
    No. 3D16-995
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    M. Andrew Sperber (Sunrise), for appellant.
    The Strems Law Firm, P.A., and- Scot Strems, for appellees.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   SCALES, J.

Heritage Property and Casualty Insurance Company (“Heritage”) appeals a final order dismissing with prejudice its Petition for Declaratory Judgment, asserting: (1) that the trial court abused its discretion in dismissing the action without giving Heritage leave to file an amended petition; and (2) that its petition stated a valid cause of action for declaratory relief. Concluding only that Heritage stated a cause of action for declaratory relief, we reverse.

Statement of the Case

In October 2013, Heritage issued a homeowner’s insurance policy to the Ro-manaches, In December 2013, their home and contents were damaged by a water leak in an interior hallway’s ceiling. The Romanaches hired loss consultants who estimated their damages were $147,257.07. Heritage investigated the claim, determining there were $62,257.41 in damages. Unable to resolve the scope and estimate of the damages, Heritage invoked the appraisal clause of the subject policy which provides, in relevant part:

Appraisal. If you and we fail to agree on the scope of repairs necessary to. restore your property to its pre-loss condition, or specifications of materials used in the restoration of your damaged property, either may demand an appraisal of-the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose a competent and impartial umpire .... The appraisers will separately prepare an itemized scope of repair including the specifications of the materials used to restore the property to pre-loss condition. If the appraisers submit a written report of an agreement to us, we will select and authorize a pre-qualified vendor to complete the repairs in accor-; dance with the agreement. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will authorize our selected pre-qualified vendor to complete the repairs in accordance with the agreement.

(Emphasis added).

Both parties’ appraisers agreed on the appointment of umpire Carlos Guerrero to oversee the appraisal process. On January 8, 2015, the umpire issued an appraisal award , form, setting the replacement cost value of the. Romanaches’ loss at $149,040.25 and the actual cash value of their loss at $145,119.83. Heritage’s appraiser objected to the amount of the appraisal award, claiming that the figure was grossly inflated and that damages had been awarded for items not at issue. The Romanaches’ appraiser and the umpire signed the appraisal award form on February 25, 2015, purporting to make the damages award valid and binding upon the parties.

On April 20, 2015, Heritage- filed its Petition for Declaratory Judgment against .the Romanaches in the Miami-Dade County circuit court. Although couched in five separate counts, in each count Heritage seeks essentially the same relief: a declaration that Heritage is entitled to a new appraisal process because: (1) the umpire determined coverage issues outside the scope of the appraisal process established by the policy; and (2) collusion between the appraiser selected by the Romanaches and the umpire undermined the integrity of the appraisal process. .

Specifically, Heritage alleged that it “is in doubt as-'to its rights regarding the scope of the Appraisal Panel’s consideration of damages, authority of the appraisal panel, and existence of the umpire’s power to consider and award non-covered damages.” Heritage also alleged that it discovered professional and familial relationships between the Romanaches’ appraiser, the umpire, and the owner of the water mitigation company hired by the Romanaches (1) which “calls into question the partiality of the [appraisal award],” and (2) that, if disclosed prior to the selection of the umpire, Heritage’s appraiser “would have never agreed to Carlos Guerrero being appointed as the umpire.” Therefore, Heritage alleged, “[a] bona fide present controversy exists regarding the integrity of the appraisal process as well as [Heritage’s] obligations for the amounts included in the Appraisal Award.”

On June 8, 2015, the Romanaches filed their Motion to Dismiss Petition for Declaratory Judgment or Alternatively Motion for More Definite Statement, arguing that: (1) Heritage had failed to state a cause of action for declaratory relief; and (2) Heritage’s Petition for Declaratory Judgment was so vague that the Roma-naches could not reasonably frame a responsive pleading.

At the conclusion of the March 1, 2016 hearing on the Romanaches’ dismissal motion, the trial court reserved ruling so that it could further consider the case law. At Heritage’s request, the court gave the parties leave to file additional memoranda of law as to whether an insurance company can bring a declaratory action under these circumstances. Heritage thereafter filed a memorandum of law, arguing that under Higgins v. State Farm Fire & Casualty Co., 894 So.2d 5 (Fla. 2004), an insurer may pursue a declaratory judgment action that requires a determination of the existence or nonexistence of a fact upon which the insurer’s rights and obligations under an unambiguous insurance policy depend. The Romanaches did not file a response.

On March 31, 2016, the trial court entered an order summarily granting the Romanaches’ dismissal motion. The order states, “ORDERED AND ADJUDGED that Respondent’s Motion to Dismiss Petition for Declaratory Judgment or Alternatively Motion for Definite Statement is hereby granted.” Believing that the dismissal order was a final order based on an SRS (Summary Reporting System) stamp on the document, Heritage did not file an amended pleading as would be its right if the trial court’s dismissal had been without prejudice. See Fla. R. Civ. P. 1.190(a) (“A party may amend a pleading once as a matter of course at any time before a responsive pleading is served .... ”). Nor did Heritage file a Florida Rule of Civil Procedure 1.530 motion for rehearing, or otherwise move to amend its petition. Instead, Heritage filed a notice of appeal to this Court.

On May 17, 2016, this Court issued an order informing Heritage that its appeal was subject to dismissal because a trial court order that merely grants a motion to dismiss is not a final order. At that point, Heritage again did not take measures to file an amended petition. Rather, Heritage filed its Motion to Request the Court to Enter a Final Order in the lower court, therein requesting that the trial court “enter a Final Order for this case as soon as possible.” Heritage attached a proposed final order dismissing and closing the case as to the parties. On May 22, 2016, the trial court entered an order that simply states, “ORDERED and ADJUDGED that this matter is dismissed and closed.” Heritage then filed a Notice of Filing Final Order of Dismissal in this Court, providing what was now a final order of dismissal.

This Appeal

In this appeal, Heritage first argues that the trial court abused its discretion in dismissing its petition with prejudice without giving it leave to amend. Clearly, on this record, we conclude that Heritage failed to preserve this issue for appellate review. See Vorbeck v. Betancourt, 107 So.3d 1142, 1147-48 (Fla. 3d DCA 2012) (finding that the plaintiffs failed to preserve for appellate review the trial court’s dismissal of their complaint with prejudice where the plaintiffs did not object to the court’s oral ruling, seek leave to amend the complaint, or file a motion for rehearing or reconsideration).

We therefore turn to Heritage’s second argument, which is that its petition stated a valid cause of action for declaratory relief. In addressing this issue, we apply the de novo standard of review. See Sarkis v. Pafford Oil Co., 697 So.2d 524, 526 (Fla. 1st DCA 1997) (“Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.”).

As with any party, Heritage may seek a declaratory judgment as to the existence or nonexistence of “any immunity, power, privilege or right” or of “any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future.” § 86.011, Fla. Stat. (2015) (emphasis added). The trial court may adjudicate the existence or nonexistence of such fact “whether or not further relief is or could be claimed.” Id. Put another way, “the courts have the general power to issue declaratory judgments ... in suits solely seeking a determination of any fact affecting the applicability of an ‘immunity, power, privilege, or right.’ ” Higgins, 894 So.2d at 12.

Albeit wandering and disjointed, Heritage’s petition essentially calls into question the impartiality of the chosen umpire and the integrity of the appraisal process in this case. From its five counts and seventy paragraphs (not including sub-paragraphs and “Wherefore” clauses), we can cobble together a sufficient claim where Heritage is seeking a determination of whether the chosen umpire was, in fact, “competent and impartial” as required by the subject policy; this is a fact that might affect the existence or nonexistence of some immunity, power, privilege or right of Heritage. Thus, we hold that Heritage has stated a cause of action for declaratory relief to the extent that Heritage is seeking to determine whether the appointed umpire was, in fact, competent and impartial as required by the policy. See id. (“[A]n insurer may pursue a declaratory action which requires a determination of the existence or nonexistence of a fact upon which the insurer’s obligations under an insurance policy depend.”).

At best, the hearing transcripts indicate that the trial court was somewhat concerned with the relief Heritage could obtain against the Romanaches should the court declare that the umpire was not competent and impartial. Indeed, at one point, the trial court suggested that the insurer might “just have a claim against the umpire and/or the appraiser for not acting properly and not doing their job.” As the record provides no clarity that this was the basis for the instant dismissal, we simply note, without finding any error by the trial court, that chapter' 86 provides not only’ that the trial court may render a declaratory judgment “whether or not further relief is or could be claimed,” § 86,011, Fla. Stat. (2015), but also that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” § 86.111, Fla. Stat. (2015).

Conclusion

Given the present posture of this case, we stress that the only issue we consider on this appeal is whether Heritage has stated a valid cause of action for declaratory relief in its petition. We hold only that, for the reasons stated herein, Heritage’s petition hás ’ validly invoked the trial court’s declaratory jurisdiction to determine the fact of whether the appointed umpire was competent and impartial as required by the policy. In so holding, we express no opinion as to any relief Heritage might claim should it obtain a determination that the umpire was not competent and impartial.

Accordingly, we reverse the instant dismissal order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The background facts- contained herein are those set forth in the underlying complaint.

      . Our show cause order cited GMI, LLC v. Asociacion del Futbol Argentino, 174 So.3d 500, 501 (Fla. 3d DCA 2015) ("An order that merely grants a motion to dismiss is not a final order.”).

      . The attorney who argued on behalf of Heritage at oral argument neither represented Heritage in the lower proceedings, nor initially represented Heritage in this appeal. Heritage changed its attorney of record after its Initial Brief had been filed. For their part, the Romanaches filed no Answer Brief in this matter and, as a consequence, were precluded from participating in oral argument.

      . Importantly, though, we express no opinion as to whether the remedy sought by Heritage in its petition (i.e„ a new appraisal process) is . available in the event the trial court determines the appointed umpire wás not competent and impartial, That issue is not before us.

      . At oral argument, Heritage’s current counsel candidly declined to specify what relief Heritage could seek under its petition, as pled, We appreciate counsel’s candor on this point.


author: EMAS, J.

text:
    TURNBERRY VILLAGE NORTH TOWER CONDOMINIUM ASSOCIATION, INC., Appellant, v. TURNBERRY VILLAGE SOUTH TOWER CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D16-1959
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017.

      Egozi & Bennett and Bernard L. Egozi and Isaac S. Lew, for appellant. •
    Kahn & Resnik and Howard Kahn and Marcy S. Resnik (Dania), for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   EMAS, J.

Appellant, Turnberry Village North Tower Condominium Association, Inc. appeals from an order dismissing, with prejudice, its amended complaint, which asserted a claim for aiding and abetting a breach of fiduciary duty. We affirm the -trial court’s order, as appellant’s amended complaint failed to set forth “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b). Appellant’s amended complaint contained a mechanical recitation of the elements of the cause of action, and, in particular, only conclusory allegations that appellee substantially assisted or encouraged the wrongdoing. This is insufficient to withstand a motion to dismiss. See generally, American Seafood, Inc. v. Clawson, 598 So.2d 273 (Fla. 3d DCA 1992); Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So.2d 843 (Fla. 2d DCA 1986).

We reject appellant’s alternative argument that, even if the order of dismissal was proper, we should reverse and remand to permit appellant a further opportunity to amend the amended complaint. A plaintiff is granted the right to amend the complaint once before a responsive pleading is filed. See Fla. R. Civ. P. 1.190(a) (providing that a party may amend a pleading once as a matter of course at any time before a responsive pleading is served); Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla. 2005) (holding that a judge’s discretion to deny amendment of a complaint arises only after the defendant files a responsive pleading or if the plaintiff has already exercised the right to amend once).

Appellant already exercised this right to amend when, following a dismissal of the original complaint, it filed an amended complaint. Any further amendment required leave of the trial court. Because appellant did not seek leave to amend at the time of the trial court’s dismissal with prejudice of the amended complaint, or thereafter by a motion for rehearing, Appellant has failed to preserve the issue, precluding our consideration of the issue for the first time on appeal. Vorbeck v. Betancourt, 107 So.3d 1142, 1148 (Fla. 3d DCA 2012); Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985); Stander v. Dispoz-O-Products, Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008).

Affirmed.

      . Aiding and abetting a breach of fiduciary duty is recognized in Florida. See Fonseca v. Taverna Imports, Inc., 212 So.3d 431, 442 (Fla. 3d DCA 2017) (and cases collected), Such a claim requires a plaintiff to plead ultimate facts to establish: 1) a fiduciary duty on the part of a primary wrongdoer; 2) a breach of that fiduciary duty; 3) knowledge of the breach by the alleged aider and abettor; and 4) the aider and abettor’s substantial assistance or encouragement of the wrongdoing. Id.


author: PER CURIAM.

text:
    Celia MORRIS, et al., Appellants, v. Omar GARCIA, Appellee.
    Nos. 3D16-1517 & 3D16-1379
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Lindsey M. Tenberg, P.A., and Lindsey M. Tenberg (Lighthouse Point), for appellant Celia Morris; Horan, Wallace & Higgins, LLP, and David Paul Horan, for appellants Michael Barnes, et al.
    Franklin D. Greenman, P.A., and Franklin D. Greenman, for appellee.
    Before SUAREZ, FERNANDEZ and • SCALES, JJ.
   PER CURIAM.

We agree with the trial court that, rather than their possessing a non-exclusive easement that would survive partition, the ten owners of the Dolphin Estates residential lots each own an undivided l/49th interest in the property known as the Beach Area and the Access Canal (the “Property”). Similarly, rather than his holding an easement in the Property, Omar Garcia, as tenant in common with the Dolphin Estates homeowners, owns the remaining 39/49th undivided interest. While this odd arrangement might not have reflected the grantors’ intent, nevertheless it is the arrangement reflected by the respective deeds granting the parties their interests in the Property.

Affirmed.

      . One cannot hold an easement in one’s own property. One Harbor Fin. Ltd. v. Hynes Props., LLC, 884 So.2d 1039, 1044 (Fla. 5th DCA 2004).


text:
    U.S. BANK, N.A., Appellant, v. JAK MORTGAGE, LLC, Appellee.
    No. 3D16-1293
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Brock & Scott, PLLC, and Shaib Y. Rios (Fort Lauderdale), for appellant.
    Lawrence A. Caplan, P.A, and Lawrence A. Caplan, (Boynton Beach), for ap-pellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   SCALES, J.

U.S. Bank, N.A., appeals the trial court’s denial of its rule 1.540(b) motion seeking to vacate a default final judgment quieting title to real property entered in favor of appellee, plaintiff below, JAK Mortgage, LLC. We reverse because, during the pen-dency of JAK Mortgage’s quiet title action, the trial court dismissed U.S. Bank from the case, thereby losing jurisdiction over JAK Mortgage’s quiet title claim against U.S. Bank.

I. Procedural Background

In 2009, Arrow Properties of South Florida, Inc. (“Arrow”) filed a foreclosure action seeking to foreclose Arrow’s subordinate lien encumbering residential property in Miami-Dade County. U.S. Bank, which held a superior mortgage encumbering the property, was not named as a defendant in Arrow’s foreclosure action. Arrow obtained a final foreclosure judgment on September 21, 2009. At a February 18, 2010 foreclosure sale, JAK Mortgage was the successful third-party bidder. Thus, when the clerk issued JAK Mortgage its certificate of title on February 27, 2010, JAK Mortgage took title to the property, subject, of course, to U.S. Bank’s superior mortgage.

Also in 2009, U.S. Bank filed its own foreclosure action seeking to foreclose upon its superior mortgage encumbering the same property. Contemporaneously with the filing of its foreclosure action, U.S. Bank also filed a notice of Lis Pen-dens. U.S. Bank obtained its final foreclosure judgment on February 8, 2013. Paragraphs 3 and 7 of this final judgment expressly foreclosed Arrow’s, and all others’, subordinate interests in the property. The record reflects that no party appealed, nor otherwise challenged, this February 8, 2013 final judgment. At the February 2015 foreclosure sale, U.S. Bank was the successful bidder.

After acquiring its subordinate interest in the subject property, JAK Mortgage filed the instant quiet title action in 2012. JAK Mortgage’s complaint named U.S. Bank as a defendant. JAK Mortgage alleged that U.S. Bank lacked standing to file its 2009 notice of Lis Pendens, and that U.S. Bank “should instead have sought judgment on the Lis Pendens already in place which was filed by ... Arrow ... only four months prior” to the filing of U.S. Bank’s notice of Lis Pendens. JAK Mortgage also alleged that U.S. Bank’s notice of Lis Pendens lacked sufficient specificity regarding the nature of U.S. Bank’s lien.

JAK Mortgage sought to serve U.S. Bank with its quiet title action. Because U.S. Bank is a nonresident corporation doing business in Florida, and apparently did not have a registered agent or corporate officer to receive service in the State, JAK Mortgage purported to serve U.S. Bank through the Florida Secretary of State. Yet, for reasons that are not clear from the record, prior to its obtaining service on U.S. Bank, JAK Mortgage sought, and the trial court entered, a Final Judgment Quieting Title dated February 8, 2013. This final judgment identifies the fact that defaults previously had been entered against several defendants, and goes on to quiet title in JAK Mortgage’s favor against these defaulting defendants. This final judgment, however, does not name U.S. Bank as a defaulting defendant, but rather, dismisses JAK Mortgage’s claim against U.S. Bank with stamped wording the trial judge affixed to the final judgment: “The court dismisses this case against any party not listed in this final order or previous order(s). This case is closed as to all parties.” The record contains no reference to U.S. Bank in any previous order.

After the trial court dismissed U.S. Bank and entered the final judgment, JAK Mortgage filed a return of service indicating that U.S. Bank had been served on February 22, 2013, by means of substituted service on the Florida Secretary of State.

Armed with this purported post-dismissal substitute service, on April 3, 2013, JAK Mortgage moved to re-open its case against U.S. Bank and, on April 22, 2013, paid a fifty dollar “Reopen case fee.” On June 6, 2013, the trial court entered an order re-opening the case. On June 14, 2013, the trial court entered a default final judgment in JAK Mortgage’s favor quieting title as to U.S. Bank. Nothing in this “second” judgment vacates the trial court’s dismissal of JAK Mortgage’s claim against U.S. Bank contained in the trial court’s February 8, 2013 “first” final judgment, nor explains how the trial court reacquired jurisdiction over the dismissed claim. Additionally, nothing on the face of this purported “second” judgment indicates that U.S. Bank was served with this second judgment.'

Upon learning of this Juné 14, 2013 “second” final judgment—some two years after its entry—U.S. Bank filed a motion to vacate same, pursuant to Florida Rule of Civil Procedure 1.540(b)(4) and (5), asserting that it was void. On April 28, 2016, after conducting a hearing on U.S. Bank’s motion, the trial court entered an order denying U.S. Bank’s motion, and this appeal ensued.

II. Analysis

The record reveals that the trial court dismissed the action against U.S. Bank in its February 8, 2013 final judgment with a statement that the case was dismissed against parties—including U.S. Bank—not named in the judgment. The February 8, 2013 dismissal of JAK Mortgage’s quiet title claim against U.S. Bank divested the trial court of jurisdiction over U.S. Bank. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla. 1978); Century Elevator Co. v. Spinos, 652 So.2d 451, 452 (Fla. 4th DCA 1995) (noting that dismissal typically divests the court of jurisdiction even “to entertain a motion to reinstate the proceeding”); Fla. R. Civ. P. 1.420(a)(1), (b).

JAK Mortgage did not respond to the 'trial court’s dismissal of U.S. Bank from the case either by seeking a rehearing, by seeking to vacate the dismissal, or by appealing that-portion of the final judgment dismissing JAK Mortgage’s claim against U.S. Bank. Instead,- several months after the dismissal, JAK Mortgage paid a fifty dollar “Reopen case fee” to the clerk of the lower court and moved to re-open the case. JAK Mortgage provides no authority for the proposition that the trial court’s reopening of a closed case provides the trial court with renewed jurisdiction to enter a default judgment against a party long since dismissed from the lawsuit. See e.g. Brody v. Broward Cty. Sheriffs Office, 137 So.3d 610, 611 (Fla. 4th DCA 2014) (holding that a trial court cannot re-open a case after “[t]he trial court lost jurisdiction ... by virtue of-the final judgment”); Commerce & Indus. Ins. Co. v. Wellenreiter, 475 So.2d 1302, 1303 (Fla. 5th DCA 1985) (holding that once jurisdiction is lost, a trial court has no authority to re-open a case).

We need not, and do not, express an opinion as to whether the trial court’s dismissal of JAK Mortgage’s case against U.S. Bank was with or without prejudice. Because the trial court’s dismissal of U.S. Bank was never vacated, the trial court never re-acquired jurisdiction over U.S. Bank and, therefore, the trial court’s post-dismissal orders relating to U.S. Bank are a nullity. Herbits v. City of Miami, 197 So.3d 575, 578 (Fla. 3d DCA 2016).

We reverse the trial court’s April 28, 2016 order denying U.S. Bank’s rule 1.540 motion, and vacate all post-dismissal orders, judgments and proceedings related to U.S. Bank.

Reversed.

      . U.S. Bank Nat'l Ass'n v. Bevans, 138 So.3d 1185, 1187 (Fla. 3d DCA 2014) (stating the general rule that a junior lienholder cannot normally name a superior lienholder as a defendant in a suit to foreclose a junior lien).

      . At the time U.S. Bank filed its foreclosure action, JAK Mortgage had not yet obtained title to the property; therefore, Arrow, JAK Mortgage's predecessor-in-interest, was named as a defendant in U.S. Bank’s foreclosure action.

      . See section 48.181(1) of the Florida Statutes, which authorizes this type of service.

      . JAK Mortgage did not appeal the February 8, 2013 final judgment, nor has it ever sought to vacate that portion of this final judgment dismissing the case against U.S, Bank.

      . While this June 14, 2013 "second” final judgment states that a default was entered against U.S, Bank on June 5, 2013, the record contains no such default. Additionally, the judgment provides no explanation as to how a June 5, 2013 default could have been entered against U.S. Bank one day prior to the trial court’s June 6, 2013 order re-opening the case.

      . In addition to the jurisdictional argument that forms the basis of our opinion, in its rule 1.540 motion and in its brief on appeal, U.S. Bank essentially makes two other arguments: (i) the June 14, 2013 judgment is void because U.S. Bank was not properly served and, therefore, U.S. Bank did not receive due process; and (ii) JAK Mortgage's quiet title action was an unlawful effort .of a junior lienholder to foreclose a superior lienholder’s interest. Because of the jurisdictional issue that arises from- the procedural peculiarities of this case, we need not, and do not, reach these issues.

      . Arguably, had the February 8, 2013 dismissal been without prejudice, JAK Mortgage could have taken procedural steps to file an amended complaint against U.S. Bank. See Carnival Corp. v. Sargeant, 690 So.2d 660 (Fla. 3d DCA 1997). The record indicates, though, that JAK Mortgage did -not file an amended complaint against U.-S. Bank; it simply moved to reinstate its case against U.S. Bank in order to default U.S. Bank for not answering a complaint that had been dismissed against U.S. Bank weeks earlier.


text:
    Adolphus ROOKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-289
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   EMAS, J.

Adolphus Rooks appeals from a denial of his motion to correct sentence. Rooks contends that his 1972 sentence of life with the possibility of parole for sexual battery, committed as a juvenile, violated the Eighth Amendment as announced in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and as applied in Atwell v. State, 197 So.3d 1040 (Fla. 2016) and Henry v. State, 175 So.3d 675 (Fla. 2015).

For the reasons that follow, we affirm, and hold that, because Rooks was sentenced in 1972 to life with parole eligibility, was paroled from prison in 1980 after serving eight and one-half years, and thereafter violated his parole by committing a new crime as an adult, leading to his re-incarceration, neither Graham/Miller nor Henry/Atwell is implicated, the sentence is not illegal, and Rooks is not entitled to a resentencing under Florida’s newly-enacted juvenile sentencing scheme.

FACTS

Adolphus Rooks was born on November 17, 1955. In 1971, he was arrested and charged with sexual battery in violation of section 794.01, Florida Statutes (1971). On May 1, 1972, Rooks entered a plea of guilty and was sentenced to life imprisonment with the possibility of parole.

On November 4,1980, eight and one-half years following imposition of his life with parole sentence, Rooks was released from prison and placed on parole supervision. At the time of his release on parole, Rooks was twenty-four years old.

On June 28, 1986 (at the age of thirty), Rooks was taken into custody on a parole violation and, on January 8, 1987, Rooks was returned to prison as a parole violator.

On October 10, 2006 (at the age of fifty), Rooks was again released from prison and placed on parole supervision. In 2007, Rooks was initially held on a parole violation, but was not returned to prison at that time. He was instead restored to parole on January 9, 2008 (at the age of fifty-two).

On August 29, 2014, (at the age of fifty-eight) the Probation and Parole Commission issued a Warrant for Retaking Paroled Prisoner alleging Rooks violated his parole by committing the first-degree felony of trafficking in heroin, in the amount of fourteen grams or more, but less than twenty-eight grams. See § 893.135(1)(c)1., Fla. Stat. (2014). On August 26, 2015, Rooks’ parole was revoked and he was returned to prison. He thereafter filed his motion to correct illegal sentence, which the trial court denied and which we review de novo. Henry, 175 So.3d at 676-77.

ISSUE AND ANALYSIS

Rooks asserts that, pursuant to the United States Supreme Court’s decisions in Graham and Miller and the- Florida Supreme Court’s decisions in Henry and Atwell, he is entitled to resentencing pursuant to sections 775.082, 921.1401 and 921.1402, Florida Statutes (2016).

A brief history of the developing case law in this area is necessary. In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the United States .Supreme Court held that the Eighth Amend-ment prohibited imposition of the death penalty for any crime committed by a juvenile. Given this ruling in Roper, a life without parole sentence became the most severe punishment that could be imposed upon any defendant who committed a crime as a juvenile,

In Graham, 560 U.S. at 53, 130 S.Ct. 2011, the defendant was sixteen years old-when he committed an armed burglary at a restaurant in Florida. Graham pleaded' guilty to that charge and the trial court withheld adjudication and placed Graham on probation, with a special copdition of twelve months in a county detention facility. Id. at 54, 130 S.Ct. 2011. Within six months of his release, and while still a juvenile, Graham violated his probation by committing a new crime (armed burglary with a firearm). Id. The trial court found Graham in violation of his probation, revoked his probation and sentenced him on his original offense to the maximum sentence of life imprisonment without the possibility of parole. Id. at 57, 130 S.Ct. 2011.

Graham challenged the constitutionality of a life without parole sentence imposed on a juvenile for a nonhomicide offense. The United States Supreme Court agreed that such a sentence is unconstitutional, holding that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at 74, 130 S.Ct. 2011. The Supreme Court recognized that, given its earlier decision in Roper, which invalidated capital punishment for all juvenile offenders, a sentence of life without the possibility of parole is akin to the death penalty, serving as the most severe punishment that can lawfully be imposed on a juvenile offender. See Miller, 567 U.S. at 470, 132 S.Ct. at 2463 (noting “Graham further likened life without parole for juveniles to the death penalty itself....”). The Court also recognized that a life without parole sentence imposed upon a juvenile is proportionately more severe than one imposed upon an adult:

Life without parole is an especially harsh punishment for a juvenile. Under-this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentence to life without parole receive the same punishment in name only.

Graham, 560 U.S. at 70-71, 130 S.Ct. 2011.

The Court cautioned that its holding, prohibiting a life without parole sentence for a juvenile offender who does not commit murder, does not mean that a state is

required to guarantee eventual freedom to a juvenile offender convicted of a .nonhomicide crime. What the State-must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated ma..-turity and rehabilitation. It is for the State, in the first instance, to explore, the means and mechanisms for compli-. anee. It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.
⅜ ⅝ ⅝
The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.

Id. at 75, 130 S.Ct. 2011.

In Miller, 567 U.S. at 478-80, 136 S.Ct. at 2469, the juvenile offender was convicted of murder and, under Alabama law, the trial court was required to sentence him to life without parole, the harshest penalty which can be imposed for a crime committed by a juvenile. Given the mandatory nature of this sentence, the trial judge was prohibited from making an individualized sentencing détermination, or to consider any mitigating circumstances, including “an offender’s youth and attendant characteristics.” Id. at 2471. Miller challenged the constitutionality of his sentence, and the United States Supreme Court held a mandatory life without parole sentence for juvenile homicide offenders violated the Eighth Amendment:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.

Id. at 2475 (emphasis added).

The Roper-Graham-Miller, line of decisions was decided against a backdrop not present in this case: that the defendant was subjected to the “harshest possible penalty for juveniles”: life without the possibility of parole. By likening a juvenile life without parole sentence to an adult death penalty sentence, the Eighth Amendment’s proportionality concerns are implicated, and the long line of United States Supreme Court decisions which require individualized sentencing considerations (including consideration of mitigating circumstances) before imposing the “harshest possible penalty,” become applicable.

Additionally, and particularly with juvenile offenders facing life imprisonment without the possibility of parole, a trial judge is required to consider the age of the offender and age-related characteristics, including a juvenile’s diminished culpability and heightened capacity for change. Id. at 2469. As the Miller Court acknowledged: “That is' especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ” Id. (quoting Roper, 543 U.S. at 573, 125 S.Ct. 1183).

Miller and Graham thus established the threshold which must be met before an Eighth Amendment challenge can be raised in this context: the juvenile offender must be sentenced to life without the possibility of parole, a sentence akin to a “juvenile death penalty.”- In Miller, for example (involving a mandatory life without parole sentence for a homicide), it is the very nondiscretionary, mandatory nature of this severest of sentences which “precludes consideration of [a defendant’s] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller, 132 S.Ct. at 2468. A statutorily-mandated life without parole sentence also “disregards the possibility of rehabilitation even when the circumstances most suggest it.” Id.

As the Supreme Court characterized it in' Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 733, 193 L.Ed.2d 599 (2016): “Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account ‘how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ ” (Emphasis added.) Rooks contends that the sentencing judge in the instant case did not (and could not) take these considerations into account. However, these considerations are constitutionally required only “before sentencing a juvenile to life without parole.” Id.

As applied to the instant case, it is clear that Rooks cannot meet this threshold established by Miller or Graham, because he was not sentenced to life without parole, but rather was sentenced to life with parole. This would appear to mark the end of the discussion. However, further analysis is required to address the Florida Supreme Court’s recent decisions in Henry and Atwell, applying the holdings of Graham and Miller.

In Henry, 175 So.3d at 677, the Florida Supreme Court applied the decisions of Graham and Miller to a case in which the juvenile offender was given an aggregate sentence of ninety years in prison. The court reasoned that “the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of ‘life in prison.’ ” Id. at 680. Instead, the court held:

[T]he constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonhomicide offender’s sentence does not afford any “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham requires a juvenile nonhomicide offender, such as Henry, to be afforded such an opportunity during his or her natural life. Because Henry’s aggregate sentence, which totals ninety years and requires him to be imprisoned until he is at least nearly ninety five years old, does not afford him this opportunity, that sentence is unconstitutional under Graham.

Id. at 679-80 (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011) (emphasis added).

In Atwell, 197 So.3d at 1050, the Florida Supreme Court addressed whether the holdings of Miller and Graham apply to a juvenile nonhomicide offender whose life with parole sentence was effectively a life without parole sentence. In Atwell, the sixteen-year-old defendant was convicted of first-degree murder and sentenced to a mandatory term of life imprisonment with the possibility of parole after twenty-five years.

The court rejected the State’s argument that Atwell’s sentence was deemed constitutional by the mere fact that he was sentenced to life with parole:

The State argues that Atwell’s sentence is not unconstitutional because Miller unambiguously applies only to manda-torily imposed life without parole sentences. Because Atwell’s sentence is not “without parole,” the State asserts, it is not unconstitutional. To the State it is quite literally as simple as that.
However, throughout this Court’s post-Graham and Miller juvenile sentencing jurisprudence, we have consistently followed the spirit of Graham and Miller rather than a narrow, literal interpretation.

Id. at 1046.

The Florida Supreme Court reaffirmed its earlier holding in Henry that “when tried as an adult, the specific sentence that a juvenile nonhomicide offender receives for committing a given offense is not dis-positive as to whether the prohibition against cruel and unusual punishment is implicated.” Id. (quoting Henry, 175 So.3d at 680).

In determining whether Atwell’s life with parole sentence fell within the scope of Miller and Graham, the court analyzed “how parole operates in Florida.” Id. at 1047. The court noted:

Parole is the release of an inmate, prior to the expiration of the inmate’s court-imposed sentence, with a period of supervision to be successfully completed by compliance with conditions and terms of the release agreement ordered by the Florida Commission on Offender Review. See William H. Burgess, Fla. Sentencing § 12:18 (2015-16 ed.). See also Florida Parole Comm’n v. Spaziano, 48 So.3d 714, 721-22 (Fla.2010). The judiciary has no input as to the operation of the parole system.
An inmate who is eligible for parole has an initial interview with a hearing examiner. That examiner uses a salient factor score—a numerical score based on the offender’s present and prior criminal behavior and related factors found to be predictive in regard to parole outcome— as well as the statutory severity of the inmate’s offense to determine a corresponding range of months on a matrix that automatically indicates a range of presumptive parole release dates. See Spaziano, 48 So.3d at 722 n. 7. The presumptive parole release dates are the earliest dates an offender may be released from prison as determined by objective parole guidelines. Id.
Under Florida statutory law, the objective parole criteria applied by the Commission must “give primary weight to the seriousness of the offender’s present criminal offense and the offender’s past criminal record.” § 947.002, Fla. Stat. (2015). The hearing examiner may consider the aggravating and mitigating circumstances—none of which provide for the level of consideration of the diminished culpability of youth at the time of the offense as sentencing judges now consider post-Miller—that warrant a decision outside the given matrix time range, but must provide written justification for altering the presumptive parole release date. See § 947.172(3), Fla. Stat. (2015); see also Spaziano, 48 So.3d at 723. The hearing examiner then makes a written recommendation to the Commission of a presumptive parole release date, which is reviewed by a panel of no fewer than two commissioners appointed by the chair. § 947.172(2), Fla. Stat. (2015).
Subsequent parole interviews are conducted to determine whether information has been gathered that could affect the presumptive parole release date. § 947.174, Fla. Stat. (2015). When the inmate’s presumptive parole release date nears and if the inmate’s institutional conduct and parole release plan are satisfactory, the presumptive parole release date becomes the effective parole release date. § 947.1745, Fla. Stat. (2015). The Commission then engages in a final review process to determine if release is still appropriate and will authorize or modify the effective parole release date accordingly.

Id. at 1047-48.

The court determined that “[i]n most respects, a sentence of life with the possibility of parole for first-degree murder, based on the way Florida’s parole process operates under the existing statutory scheme, actually resembles a mandatorily imposed life sentence without parole that is not ‘proportionate to the offense and the offender.’ ” Id. at 1048 (quoting Horsley v. State, 160 So.3d 393, 406 (Fla.2015)).

Applying Florida’s current parole process to Atwell’s sentence, the court concluded:

Even though Atwell was sentenced to life with the possibility of parole after twenty-five years, under Florida’s existing parole system,- the earliest date At-well may be released from prison as determined by objective parole guidelines is the year 2130, or one hundred and forty years after Atwell’s crime. At-well, then, has no “hope for some years of life outside prison walls!”

Id. at 1050 (quoting Montgomery, 136 S.Ct. at 737).

The court struck down Atwell’s sentence, holding:

The- Supreme Court has emphasized— • and this Court’s own case law has followed—that the Eighth Amendment requires a trial court to “take into account the differences among defendants and crimes” before imposing a sentence that is, in effect, a sentence to a lifetime in prison. Miller, 132 S.Ct. at 2469 n. 8. Atwell’s sentence effectively resembles a mandatorily imposed life without parole sentence, and he did not receive the type of individualized sentencing consideration Miller requires.

Id. at 1050 (emphasis added) (additional internal citations omitted).

Thus, by making the threshold finding that “Atwell’s sentence effectively resembles a mandatorily imposed life without parole sentence” id. at 1050 (emphasis added), Atwell’s sentence fell within the scope of Graham/Miller and was subject to challenge under the Eighth Amendment.

It is the threshold inquiry—i.e., Atwell’s effective life without parole sentence, or Henry’s aggregate ninety-year sentence which failed to afford a meaningful opportunity for early release during his natural life—that distinguishes the instant case from the analyses and holdings in Graham, Miller, Henry and Atwell.

Unlike the existing parole system and guidelines under which Atwell was serving his sentence, the parole system and guidelines applicable to Rooks provided broader discretion in determining whether and when he would be released. Although the record below does not contain the precise parole guidelines in 1972 (the year of Rooks’ conviction) or in 1980 (the year of his first release on parole), this is evident from the fact that Rooks was released on parole supervision after serving only eight- and-a-half years of a life sentence,- whereas Atwell’s presumptive parole release date was in the year 2130, at which point Atwell would be 156 years old.

Rooks’ release on parole after eight-and-a-half years also distinguishes his sentence from the sentence imposed in Henry, as Rooks self-evidently received a sentence that “afford[ed] [him] a meaningful opportunity to obtain early release during [his] natural li[fe]...; ” Henry, 175 So.3d at 680.

It would appear to us contrary to both logic and jurisprudence to hold that this case is controlled by the Graham/Miller or Henry/Atwell line of cases, given that Rooks cannot make the threshold showing that he received a life without parole sentence, a sentence that effectively resembles a life without parole sentence, or a sentence that failed to afford him a meaningful opportunity to obtain early-release during his natural life.

Because Rooks’ sentence cannot satisfy this threshold, we conclude that it is not subject to Eighth Amendment challenge under Graham/Miller or Henry/Atwell.

CONCLUSION

We hold that, because Rooks was sentenced in 1972 to life with parole eligibility, was paroled from prison in 1980 after serving eight and one-half years, and thereafter violated his parole by committing a new crime as an adult, leading to his re-incarceration, neither Graham/Miller nor Henry/Atwell is implicated, the sentence is .not illegal, and Rooks is not -entitled to a resentencing under Florida’s newly-enacted juvenile sentencing scheme.

      . In 1971, sexual battery under section 794.01 was designated a capital felony, punishable by death or by a sentence of life imprisonment with the possibility of parole.

      . Rooks committed the trafficking offense in 2014 in Seminole County, (Circuit Court, Eighteenth Judicial Circuit, case number 14-2685), was convicted of the trafficking charge and sentenced to a separate mandatory minimum term of fifteen years’ imprisonment.

      . In 1971, sexual battery was punishable by a mandatory sentence of either death or life imprisonment (with parole eligibility). See § 794.01, Fla. Stat. (1971).

      . Thus, in Atwell, the Florida Supreme Court determined that, because Atwell's life with parole sentence effectively resembled a life without parole sentence, Atwell met the threshold required by Graham to raise an Eighth Amendment challenge and seek re-sentenfcing, It is true that the Atwell court addressed the fact that, at his'original sentencing, Atwell did not receive the requisite individualized sentencing consideration. Nevertheless, and as the holdings of Graham and Miller make clear, this factor becomes a basis for granting relief only if the , initial Graham/Miller (and subsequent Atwell/Henry) threshold is met: that the juvenile nonhomi-cide -offender was sentenced to life without parole (Graham); or a sentence that effectively resembles a life without parole sentence (Atwell); or a sentence that failed to afford the offender a meaningful opportunity for. early release during his natural life (Hen-H)-,.

      . We further note that Rooks' had the burden ofestablishing an entitlement-to relief ón the face of the record. See Cox v. State, 221 So.3d 723, 2017 WL 2350130 (Fla. 3d DCA May 31, 2017); Porkolab v. State, 187 So.3d 945 (Fla. 3d DCA 2016). To the extent necessary to establish his claim, it was incumbent on Rooks to ensure that the record included the parole guidelines under which he was released on parole in 1980,

      . The 1979 version of the Florida Parole and Probation Commission Guidelines (Rule 23-19.05, Fla, Admin. Code (1979))- provided a matrix (based upon a salient factor score, risk categories, offender characteristics, and parole prognosis) setting forth the "Customary Total Time in Months to be Served Before Release Including Jail Time.’’ In 1979, the range of total time expected to be served by Rooks before release was between 96 and 240 months.

      . The earliest date Atwell could be released from prison based upon the existing objective parole guidelines.

      . The First District Court of Appeal, in a recent case with similar facts, reached a similar conclusion. Currie v. State, 219 So.3d 960, 2017 WL 2350119 (Fla. 1st DCA May 31, 2017).

      . See also Guzman v. State, 183 So.3d 1025, 1026-28 (Fla. 2016) (Pariente, J., concurring) (observing that a juvenile defendant, who was placed bn probation for a felony punishable by life imprisonment,, and thereafter committed a violation of probation after becoming an adult and sentenced to sixty years in prison, was outside the purview of Graham and was not entitled to be resentenced).