author: Gerber, J. Warner, J.,

text:
    Dalia DIPPOLITO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-1145
    District Court of Appeal of Florida, Fourth District.
    [May 26, 2017]

      Gregory C. Rosenfeld of Law Offices of Greg Rosenfeld, P.A., West Palm Beach, and Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for respondent.
   Gerber, J.

The defendant in a criminal case seeks certiorari review of the trial court’s order prohibiting all attorneys in the case from making extrajudicial statements until the jury is sworn for the defendant’s third trial. The defendant argues the court’s order departs from the essential requirements of law in three respects: (1) the State made no evidentiary showing that any threat to a fair trial was imminent and substantial; (2) the order is an overbroad prohibition of political speech and the court failed to consider less restrictive alternatives like individual voir dire and striking of tainted jurors; and (3) the court’s selective enforcement of the order amounts to viewpoint discrimination. We deny the petition, because the court’s well-reasoned order does not depart from the essential requirements of the law. The order demonstrates that extrajudicial statements pose an imminent and substantial threat to a fair trial; is narrowly tailored in both substance and duration; and is viewpoint neutral as it applies to extrajudicial comments by both parties’ counsel.

We present this opinion in six parts:

1) the procedural history;
2) the parties’ arguments to the trial court;
3) the trial court’s order and post-order proceedings;
4) the parties’ arguments to this court;
5) our standard of review; and
6) our analysis of the defendant’s three arguments.

1. Procedural History

The defendant is charged with solicitation to commit first-degree murder with a firearm. The State alleges that the defendant hired a hitman to kill her then husband. The purported hitman was actually an undercover officer from the Boynton Beach Police Department. See Dippolito v. State, 143 So.3d 1080, 1081 (Fla. 4th DCA 2014).

In 2009, the Boynton Beach Police Department arrested the defendant and published video of the defendant talking to the purported hitman. Other footage showed the defendant reacting to a staged crime scene at her house and to the false news that her husband had been killed. These videos were uploaded to the police department’s YouTube page, and they also aired on an episode of the national TV show COPS. Id. As this court previously noted, “[t]he case generated considerable pretrial publicity.” Id. at 1081-82. The videos posted by the Boynton Beach Police Department were replayed and shown on national TV shows including the Today show, Good Morning America, and others. Id. at 1082.

In 2011, at the defendant’s first trial, her theory of defense was that she believed she was auditioning for a TV show and therefore was acting during the events shown on video. At jury selection, many prospective jurors indicated they previously heard of the case by raising their hands. Id. It later was alleged that 28 of the 54 prospective jurors had raised their hands. Id. After a ten-day trial, the jury found the defendant guilty as charged. On appeal, we reversed, concluding the defendant was deprived of an impartial jury. Id. at 1086. Specifically, we concluded the trial court erred by denying the defendant’s request “to individually , voir dire the jurors on the media coverage” of the case. Id. at 1085. We also found the trial court erred by failing to strike the jury panel after one prospective juror openly discussed an allegation that the defendant had attempted to poison the victim—an allegation not charged in the case. Id.

In December 2016, at the defendant’s second trial, she claimed police misconduct and asserted an objective entrapment defense. During jury selection, a large number of the 200-person jury panel indicated they previously heard something about the case. 'While conducting voir dife, the defense filed three separate motions for a change of venue, asserting that the defendant could not receive a fair trial due to pervasive local media coverage of the case. The defendant specifically cited the police department’s YouTube videos relating to the case. The trial court denied the motions to change venue, reasoning that, at the same time defense counsel was complaining about media • attention, he was commenting about the case on his Twitter account. The second trial ended with the trial court declaring a mistrial due to a hung jury.

In January 2017, following the mistrial, defendant’s two defense attorneys issued a press release. Defense counsel said the prosecution against the defendant was “politically motivated” and came at a significant “price tag”’ for taxpayers. Defense counsel also asserted that, even if the defendant “did the crime,” she already had “done the time” by completing nearly eight years of house arrest.

2. The Parties’ Arguments to the Trial Court

Following issuance of defense counsels’ press release, the State filed a motion for protective order to prevent extrajudicial comments by defense counsel. In the same motion, the State sought the revocation of the lead defense attorney’s pro hac vice status. The State alleged that “[rjeeent statements by defense counsel indicate they are intentionally trying to improperly influence the local jury pool” before the defendant’s third trial, which is scheduled for June 2, 2017. The State specifically cited defense counsels’ press release. The State also referred to the lead defense attorney’s “prior pattern and past tactics” of attempting to influence potential jurors. In support of its motion, the State cited Rule 4-3.6(a) of the Rules Regulating the Florida Bar which provides:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated .by means of public communication if the lawyer knows, or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

The defendant filed a response arguing that the State was attempting to “impair her attorneys’ First Amendment right to free speech.” The defendant» further argued the State was improperly influencing the jury pool to have a negative view of her by releasing, through the Boynton Beach Police Department, videos relating to her case. The defendant further noted that the prosecutor from her first trial had written a book about the case called, “Poison Candy: The Murderous Madam: Inside Dalia Dippolito’s Plot to- Kill.” Although the book was released after the prosecutor left her job at the State Attorney’s Office, it was published while the defendant’s first appeal was pending, and the former prosecutor is now counsel for the alleged victim in this case. The defendant further argued that defense counsel issued their press release following the mistrial only as a way to counter the State’s own press release, which indicated the defendant would be tried for a third time. The defendant maintained that the “few stray comments” by defense counsel “do not pose a substantial or imminent threat to a fair trial” and did not support a gag order.

The State filed a reply clarifying that it sought a gag order which would apply to “all counsel, including the prosecutors,” and an order that would require counsel “to refrain from extrajudicial comments to the media until the case has been tried to a verdict.”

The trial court held a hearing on the State’s motion for protective order. At the hearing, the defendant argued the State failed to show that defense counsels’ press release violated Rule 4-3.6(a). The defendant also contended that the State’s proposed gag order was a prior restraint on speech, was .not narrowly tailored, and was “not substantiated by the sort of evidentia-ry support that would require the Court to issue a gag order.” According to the defendant, the State failed to show there was any risk-that prospective jurors would be tainted by counsel’s extrajudicial statements. .

The trial court asked the State what evidence it had that extrajudicial statements threatened a fair trial. The State cited: the January 2017 press release from defense counsel; an unspecified number of press conferences held by defense counsel during the prior trials; and critical comments defense counsel leveled at the trial court in February 2016, which resulted in the trial court’s sua sponte issuance of an order to show, cause and its • consideration of whether to revoke defense counsel’s pro hac vice status.. The State added:

All day long, every day [defense counsel] left this Courtroom and'his goal was [to] get on TV so that [he could] influence this jury. That was his goal. Every day demeaning our witnesses, demeaning the Boynton Beach Police Department; Absolutely. That is evidence the Court should consider.

The trial court took the matter under advisement, stating it needed time to draft a detailed order.

3. The Trial Court’s Order and Post-Order Proceedings

The trial court entered a. well-detailed written order granting the State’s motion for protective order but denying the request to revoke defense counsel’s pro hac vice status.

The trial court began by finding that, after defense counsel was retained in 2015, he “conducted numerous scheduled press conferences to discuss this case and the defense’s version of the facts.” The trial court further found that, after defense counsel, in early 2016, filed his motion to dismiss based on entrapment, he “conducted regular press conferences discussing his view of the facts,” and “emphasized the defense theory that the police manufactured the alleged crime for the sake of an appearance on COPS.” In support of this finding, the trial court cited the order to show cause which it issued in response to defense counsel’s press conference leveled at the trial court. The trial court explained that, in the prior order, it found defense counsel “violated Bar Rule 4—8.2(a) by making a statement concerning the integrity of the Court that he knows to be false ... and also violated Bar Rule 4-3.6(a) by making an extrajudicial statement that he knows, or reasonably should know, will have a substantial likelihood of materially prejudicing” the case.'

The trial court proceeded to explain that, during jury selection for the second trial in December 2016, “[sjeventy percent of the 200 jurors summoned for the trial had heard something about the case.” The trial court noted that the defendant moved three times in jury selection for a change in venue “asserting that she could not receive a fair trial because of pervasive media coverage.” According to the trial court, at the same time defense. counsel was expressing concerns about media coverage, he “was commenting about the case on a [Tjwitter account.”

The trial court found that, after the second trial resulted in a mistrial, “[defense counsel] again conducted a press conference to discuss the case.” The trial court asserted that defense counsel “continued to discuss the tactics and motivations of the Boynton Beach Police Department and commented on the spiritual nature of the Defendant and her family.”

The trial court lastly referred to defense counsels’ January 2017 press release, in which they claimed the prosecution was politically motivated and a waste of money.

Based on the foregoing history, the trial court concluded:

The evidence, and the record, in this ease support a finding that continued unfettered- extrajudicial statements pose a substantial and imminent- threat to a fair trial-. Jury selection is scheduled to commence on June 2, 2017. The Defendant has chosen to proceed .to trial with jurors from Palm Beach County. Potential jurors in Palm Beach County have already been exposed to extraordinary and pervasive media coverage of .this case.
The extrajudicial statements made by the' Defendant’s attorneys in this case, whether intended or not, are likely to bias potential jurors by repeated exposure to matters which are completely collateral to this case. The numerous press conferences conducted by [defense counsel] have directly, or indirectly, suggested that this casé is a referendum on the police. While certainly the specific actions of the Boynton Beach Police Department are an issue in this case, this case is not a referendum on the police in general, nor .-can any juror lawfully decide[ ] this case to send a message to law enforcement. .
Statements made recently by defense counsel concerning the Defendant “having served her time” and concerning the State Attorney’s Office similarly place collateral matters into the public forum in this publicity charged case. No juror can lawfully consider any of these matters.
In most cases, commentary on collateral matters, or on the case itself, would not pose an imminent threat to a fair trial. However, as already discussed, the level of media coverage of this case has been, and continues to be, extraordinary. Every statement made by anyone connected with this case is being reported and re-reported. Speculation runs rampant on irrelevant issues in this case such as when did the Defendant have a child while on house arrest. In a case that has already been tried twice in this county, and in a case exposed to such pervasive media coverage, the impact on potential jurors of continued extrajudicial statements by the attorneys in this case poses a real and imminent threat to the orderly administration of justice and to a fair trial.

(footnote omitted).

As a result, the trial court prohibited “[a]ll counsel in this case ... from making any extrajudicial statement” reasonably expected to be publicly disseminated which specifically related to the following:

a. The evidence in this case or any party’s view or opinion of the evidence in this case;
b. The facts of the case or any party’s interpretation of the facts of the case, including any inferences that could be drawn from the facts;
c. The motive or motivation of the State in prosecuting the case or the motive or motivation of the Defendant in pursuing any theory of defense;
d. Sentencing or punishment of the Defendant including any reference to the sentence imposed after the first trial, the Defendant’s score on the Criminal Punishment Code Scoresheet, length of in-house arrest or punishment of the Defendant if found guilty;
e. Theories of the case by the State or the Defendant;
f. The first or second trial of this case, including the results of those trials; and
g. The disparagement of any attorney of record in this case.

Notwithstanding the topics prohibited by the preceding list, the trial court explained that attorneys were allowed to comment “generally on the progress of the case, procedural matters or rulings of the ■Court, provided the comments are consistent with the Florida Rules of Professional Conduct.” The trial court further provided that its order would “automatically expire upon the swearing of a jury.”

Following entry of the trial court’s order, but before filing the instant petition, the defendant filed two motions asking the trial court to hold the State in contempt for violating the order. In the first motion, the defendant claimed the State ran afoul of the order by allowing the Boynton Beach Police Department, as the State’s agent, to keep videos relating to her case on the department’s YouTube page. The defendant argued that although no new videos had been posted, allowing the videos to remain online despite the gag order would constitute “viewpoint discrimination.” In the second motion, the defendant addressed media reports, citing a “source close to the case,” that the alleged victim would testify in the upcoming trial, as he did in the first trial. The defendant asserted that this “source” had to be one of the current prosecutors or the former prosecutor who now was counsel for the alleged victim.

The trial court conducted a hearing and clarified that its order applied to counsel only. The trial court further noted that its order did not require “anyone to go back and remove anything from the public domain, nor could I.” Although the trial court denied the requested relief, the court stated that if it saw “someone doing indirectly what they can’t do directly, I will take action, and you can bring it to my attention.”

⅛. The Parties’ Arguments to This Court

a. The Defendant’s Arguments

The defendant argues that the trial court’s order departs from the essential requirements of law in three respects: (1) the State made no evidentiary showing that any threat to a fair trial was imminent and substantial; (2) the order is an over-broad prohibition of political speech and the trial court failed to consider less restrictive alternatives like individual voir dire and striking of tainted jurors; and (3) the trial court’s selective enforcement of the order amounts to viewpoint discrimination.

On the defendant’s first argument, she contends that the only evidence which the State submitted was defense counsels’ January 2017 press release. According to the defendant, because the press release was issued more than four months before the currently scheduled trial date and because the State did not show that any media outlet published the press release, the State failed to establish an imminent and substantial threat to a fair trial. The defendant further contends that, to the extent the State referenced defense counsel’s other comments and press conferences, such references were presented as argument, not evidence, and do not support the trial court’s order. In support, the defendant relies on E.I. Du Pont de Nemours & Co. v. Aguamar, S.A., 33 So.3d 839, 841 (Fla. 4th DCA 2010) (“[A] gag order should be supported by evidence .... ”), and Rodriguez ex rel. Posso-Rodnguez v. Feinstein, 734 So.2d 1162, 1164 (Fla. 3d DCA 1999) (finding there was no showing gag order was necessary where “[n]o evidence other than the newspaper advertisement itself was presented to the court.”).

On the defendant’s second argument, she contends that the trial court’s order is not narrowly tailored to preclude only prejudicial statements made by counsel. The defendant maintains that defense counsel’s criticism of elected officials and comments on matters of public concern like expenditure of public funds is protected political speech. In support, the defendant cites Gentile v. State Bar of Nevada, 501 U.S. 1030, 1043, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (“A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”) (emphasis added). According to the defendant, the order’s sole exception for statements about procedural matters is insufficient to render it narrowly tailored. The defendant also contends that the trial court should have considered the less restrictive alternative of allowing individual voir dire on jurors’ exposure to media coverage, as the court did at the second trial.

On the defendant’s third argument, she contends that the trial court’s order is prone to discriminatory enforcement, as seen in the trial court’s rulings on her post-order motions directed toward the State. According to the defendant, because the order does not completely incorporate Rule 4-3.6, including subsection (b) which applies to third-party agents of counsel, the order completely restrains the defendant’s speech while allowing the State’s agents to say whatever they wish. For example, the defendant argues, the trial court allowed the Boynton Beach Police Department to continue publishing videos which threaten her right to a fair trial, while ordering defense counsel to stand mute. According to the defendant, she should' not -be forced to waive her right against self-incrimination in order to respond. See Gentile, 501 U.S. at 1056, 111 S.Ct. 2720. The defendant also contends that defense counsel’s comments were permissible because they were made in response to, and designed to counter, the prejudicial media environment which the State created. In support, the defendant cites the comment to an ABA model rule recognizing that counsel has the right to reply with extrajudicial statements when “they are made in response to statements made publicly by another party, .., where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client.” Model Rules of Prof'l Conduct r. 3.6 cmt. [7] (Am. Bar Ass’n 2014).

6. The State’s Response

The State responds generally that the trial court’s order did not depart from the essential requirements of law or result in irreparable harm to the defendant.

On the defendant’s first argument, the State responds that the trial court’s order “took into consideration all of the proceedings in this case and all of the publicity this case has garnered.” The State argues the threat is imminent and substantial because the defendant’s case is set for trial, and any prejudicial comments to the media will affect the prospective jurors, as shown by the jury selection process in the previous trials. The State distinguishes Rodriguez on the grounds that, in Rodriguez, no showing of material prejudice existed, the order had no time or scope limitations, and counsel offered to curtail his comments as an alternative. Here, the State argues, defense counsel offered no alternative and indicated he would continue his media strategy. Similarly, the State distinguishes Aguamar on the.ground that, in Aguamar, the court entered an order enjoining counsel’s speech without the benefit of a hearing, unlike here where the trial court held a lengthy hearing.

On the defendant’s second argument, the State responds that the gag order is narrowly. tailored to apply to attorneys only, to exempt comments on procedural matters, and to expire upon the swearing of the jury. The State distinguishes Gentile on the'ground that, in Gentile, the lawyer whose disciplinary finding was reversed held one-préss 'conference six months before his client’s trial and merely stated that his client was a scapegoat. Here, the State argues, defense counsel’s' contacts with the media were much more frequent and substantial.

5. Our Standard of Review

Appellate courts review orders prohibiting counsel from making extrajudicial statements by certiorari. Rodriguez, 734 So.2d at 1163; News-Press Pub. Co., Inc. v. Hayes, 493 So.2d 1, 1-2 (Fla. 2d DCA 1986). Alternatively, such orders may be reviewed by non-final appeal because they are .“in the nature of an injunction.” Rodriguez, 734 So.2d at 1163 n.1 (citing Fla. R. App. P. 9.130(a)(3)(B)); see also Aguamar, 33 So.3d at 841 (reviewing challenge to gag order as non-final appeal but also finding that order at issue was “a departure from the essential requirements of the law,” and citing Rodriguez).

Contrary to the State’s contention that the defendant failed .to make a threshold showing of irreparable harm, orders like the one in the instant case “implicate[ ] a violation of the parties’ constitutional rights which cannot be remedied on plenary review.” Rodriguez, 734 So.2d at 1163. Thus, in Gentile, the United States Supreme Court determined that a gag order can violate a lawyer’s First- Amendment rights when not properly balanced against the State’s interest in ensuring a fair trial. Gentile, 501 U.S. at 1075, 111 S.Ct. 2720. However, the Court recognized that “the speech of lawyers representing clients in pending eases may be regulated under, a less demanding standard than that established for regulation of the press ....” Id. at 1074, 111 S.Ct. 2720; see also Fla. Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32, 35 (Fla. 1988) (distinguishing between a. prohibition on an attorney’s comments and a prior restraint on the press).

Given the foregoing, a court must determine whether a restriction on extrajudicial statements is needed on “a case by case basis.” Rodriguez, 734 So.2d at 1164. And “the limitations imposed by the court on communications between the media and lawyers and/or litigants must be for good cause to assure fair trials.” Id.; see Aquamar, 33 So.3d at 841; see also State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So.2d 904, 910 (Fla. 1976) (setting forth the same standard of good cause and adding: “Muzzling lawyers who may wish to make public statements to gain public sentiment for their clients has long been recognized as within the court’s inherent power to control professional conduct.”).

To that end, Rule 4-3.6(a) of the Rules Regulating the Florida Bar provides:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood. of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

R. Regulating Fla. Bar 4-3.6(a); see also The Florida Bar re: Amendments to Rules Regulating The Florida Bar, 644 So.2d 282, 283 (Fla. 1994) (incorporating into Rule 4-3.6 the “substantial likelihood of material prejudice” standard approved by the United States Supreme Court in Gentile).

With these standards of review in mind, we analyze the defendant’s three arguments in turn.

6. Our Analysis of the Defendant’s Three Arguments

a. The Defendant’s First Argument

On the defendant’s first argument, we conclude the trial court did not depart from the essential requirements of the law in finding that the State met it's evidentia-ry showing that a threat to a fair trial was imminent and substantial.

We reoognize that the State neither presented testimony nor formally sought to introduce exhibits such as defense counsels’ January 2017 press release into evidence. However, the press release was attached to the State’s motion for protective order, and the press release was extensively discussed among the parties at the hearing without objection. Other extrajudicial statements, such as numerous press conferences which defense counsel held, were discussed without objection as well.

Notably, the defendant does not dispute that defense counsel issued the January 2017 press release. Instead, the defendant argues the State did not prove that the media disseminated the press release, and she argues that her attorneys were permitted to issue the press release. However, Rule 4-3.6 requires only that the extrajudicial statement be one that “a reasonable person would expect to be disseminated by means of public communication.” (emphasis added.) A press release certainly satisfies this test.

Thus, on this record, the defendant has not shown it was improper for the trial court to consider defense counsels’ extrajudicial statements in the press release. Furthermore, absent any objection, the trial court properly considered prior court proceedings and matters of record such as the defendant’s two prior trials, the media exposure experienced by prospective jurors in those trials, motions filed by the defense seeking a change of venue based on pretrial publicity, and prior court orders, including the February 2016 order to show cause directed at defense counsel for making prejudicial extrajudicial comments.

As a result, evidentiary support existed for the trial court’s order, and good cause for the trial court’s order was shown. See R.J. Reynolds Tobacco Co. v. Engle, 750 So.2d 781, 781-82 (Fla. 3d DCA 2000) (distinguishing Rodriguez and finding good cause for gag order based on the “record evidence” and the court’s “specific finding” that such an order was necessary).

b. The Defendant’s Second Argument

On the defendant’s second argument, we conclude the trial court did not depart from the essential requirements of the law in crafting the scope of the order, including the consideration of less restrictive alternatives.

The defendant is correct that a gag order must be narrowly tailored to achieve the objective sought, namely, a fair trial. Rodriguez, 734 So.2d at 1165. To determine whether a restraint on extrajudicial statements is narrowly tailored, courts look to whether less restrictive alternatives were considered and whether the subject order contains “any time or scope limitations.” Id. (noting “the absence of any time or scope limitations on the prohibited extra-judicial communications”); see also Aquamar, 33 So.3d at 841 (reversing gag order that was “unrestricted in scope and time limit”).

However, unlike counsel in Rodriguez, defense counsel here did not propose an alternative which was less restrictive than a gag order. Rodriguez, 734 So.2d at 1164 (“At the hearing, counsel for the petitioners offered to the court that no further advertisements would run and that petitioners would limit any future media communications .... ”). Here, defense counsel actually proposed the gag order as a less restrictive alternative to the revocation of his pro hac vice status, which would have resulted in his removal from the case.

Moreover, the trial court’s order permits counsel to make extrajudicial statements on matters not likely to prejudice the case such as procedural matters, and the speech prohibitions within the order expire upon the swearing of a jury. Accordingly, the order is narrowly tailored.

c. The Defendant’s Third Argument

On the defendant’s third argument, we conclude the trial court did not depart from the essential requirements of the law in balancing the viewpoints of the State and the defense. The trial court’s order, on its face, applies equally to counsel for the State and the defense (“All counsel in this case are prohibited .... ”). While the defendant argued the State violated the order through the actions of the Boynton Beach Police Department, the trial court cannot undo the prior publication of information like the police department’s videos on YouTube. In any event, the trial court’s order indicates that the court would be alert to any future attempt by the State to flout the order indirectly.

Conclusion

Based on the foregoing, we deny the defendant’s petition, because the trial court’s well-reasoned order does not depart from the essential requirements of the law. The order demonstrates that extrajudicial statements pose an imminent and substantial threat to a fair trial; is narrowly tailored in both substance and duration; and is viewpoint neutral as it applies to extrajudicial comments by both parties’ counsel.

Petition denied.

Conner, J., concurs.

Warner, J., dissents with opinion.

Warner, J.,

dissenting.

I would grant the petition because the State did not present evidence to support the necessity of a gag order on the attorneys in this case. We have held that such an order must be supported by evidence. See E.I. Du Pont de Nemours & Co. v. Aquamar, S.A., 33 So.3d 839, 841 (Fla. 4th DCA 2010) (“[A] gag order should be supported by evidence .... ”); Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So.2d 1162, 1164-65 (Fla. 3d DCA 1999) (reversing a gag order because it was not supported by evidence). Here, despite the objection by petitioners, the court ruled without requiring the State to present evidence to support its contention that the gag order on attorneys was needed to prevent an imminent threat to the fairness of the trial. I do not consider the January press release attached to the state’s motion—the only “evidence” presented—as sufficient, particularly because there was no evidence regarding the extent of its dissemination.

In Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), the Supreme Court noted that appellate courts have an independent duty with regard to cases involving restrictions on First Amendment rights: “[I]n eases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Id. at 1038, 111 S.Ct. 2720 (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). Given this heightened review standard, without an evidentiary record I cannot make the “independent examination” required in this case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    D.D.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2676
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]
    Carey Haughwout, Public Defender, and Stacey Kime, 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.
   ON CONFESSION OF ERROR

Per Curiam.

The Defendant appeals an order committing him to a maximum-risk residential facility in four delinquency cases. The State concedes the Defendant does not meet the criteria for commitment to a maximum-risk residential facility. See §§ 985.465, .494, Fla. Stat. (2016). In light of the State’s proper concession of error, we vacate the dispositions and remand for the circuit court to resentence the Defendant to a disposition authorized by law.

Disposition vacated and remanded for resentencing.

Forst, Klingensmith and Kuntz, JJ., concur.


author: Warner, J.

text:
    Kevin CUTTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2547
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]
    Robert I. Barrar of Robert I. Barrar, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant, who was a juvenile when he committed murder, appeals his life sentence, entered upon resentencing pursuant to Falcon v. State, 162 So.3d 954, 963-64 (Fla. 2015). He contends that his sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In formulating his sentence, the trial court made express findings in accordance with section 921.1401, Florida Statutes (2016), and we affirm. We remand, however, for the trial court to reduce to -writing its reasons for the sentence.

Appellant Kevin Cutts was charged by indictment with first degree murder and armed burglary with assault. He was a juvenile at the time of the offense but was prosecuted as an adult. He pled guilty to murder and to burglary, and was initially sentenced to life in prison without parole in 1997.

In 2015, appellant filed a motion for post-conviction relief and to correct illegal sentence, arguing that a life sentence without the possibility of parole for a juvenile was unconstitutional. See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The State conceded that appellant was entitled to a new sentencing hearing as a matter of law. The court granted appellant a resentencing hearing. The court conducted a full hearing, at which multiple witnesses testified on behalf of appellant. Appellant testified to his rehabilitation in prison. He also expressed remorse and apologized to the victim’s family.

After hearing the evidence, the court vacated the prior sentences, restated the criteria of section 921.1401, Florida Statutes, and made findings on those criteria. Given the particularly heinous nature of the murder as well as the heightened premeditation, the court sentenced appellant to life in prison for the murder with review after twenty-five years, and to twenty-four consecutive years for the burglary. He appeals his new sentence.

Appellant contends that his aggregate sentence is unconstitutional as a lengthy term sentence, contrary to Miller and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Specifically, appellant argues that this Court should adopt Iowa’s definition of “lengthy term sentences,” as set forth in State v. Pearson, 836 N.W.2d 88 (Iowa 2013). In Pearson, the Iowa court held that a thirty-five year sentence without the possibility of parole violated the “core teachings of Miller.” Id. at 96.

The Florida Legislature, however, developed in sections 921.1401-.1402, Florida Statutes, a different method of dealing with sentencing juveniles for serious crimes. It provided for review of lengthy sentences at set time periods so that a court could determine whether release was appropriate after a consideration of various relevant factors. The Florida Supreme Court approved the retroactive use of the statute for juveniles sentenced to lengthy prison sentences prior to its enactment in Horsley v. State, 160 So.3d 393, 394-95 (Fla. 2015). Thus, we reject any application of Pearson to juvenile sentencing in Florida.

In Falcon, the Florida Supreme Court applied the statute under similar circumstances as are present in this case. Falcon, 162 So.3d at 957-58. The court explained the sentence, stating, “If the trial court determines that Falcon ‘actually killed, intended to kill, or attempted to kill the victim,’ then Falcon must receive a sentence of at least forty years’ imprisonment, with subsequent judicial review of her sentence after having served twenty-five years of that sentence.” Id. at 963. In this case, the trial court has already made that determination and provided for review in twenty-five years. Nevertheless, the minimum sentence where there is an actual intent to kill is forty years.

We do agree, and the State concedes, that the trial court erred in failing to make written findings regarding the sentence. Those findings are required by section 775.082(1)(b)3., Florida Statutes (2016). While the trial court made all the findings on the record, a written sentencing order with the findings must be entered. We remand for the trial court to provide written findings.

Affirmed and remanded for written findings.

Damoorgian and Forst, JJ., concur.


author: Forst, J.

text:
    Marcus Jamal JERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3921
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Fredrick R. Susaneck of Levine & Susa-neck, P.A., Palm Springs, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

In this appeal from convictions and life sentences for two counts of first degree murder with a firearm while wearing a mask, two counts of attempted first degree murder with a firearm while wearing a mask, and one count of robbery with a firearm while wearing a mask, Appellant Marcus Jerry raises four issues for; our consideration. We hold, without further discussion, that Appellant did not properly preserve his first issue on appeal, and. we affirm without prejudice to Appellant raising his attorney’s failure to preserve the arguments made with respect to this issue in a 3.850 post-:Conviction motion alleging ineffective assistance. Otherwise, as discussed herein, we determine that Appellant’s arguments on the remaining three issues are without merit, although we independently note a problem with Appellant’s sentence separate from the issue raised by counsel. Our affirmance on this issue is without prejudice for Appellant to raise á post-cúnviction motion under Florida Rule of Criminal Procedure 3.800(a) or another appropriate rule to correct his sentence.

Background

Early one morning, a convenience store was robbed. One man first cased the store to see who was present. After he left, two men, masked and armed, entered. Inside, the two masked men shot and killed two customers, shot at but missed two employees, and stole money from the register. When the two men returned to their vehicle, they drove away.

During law enforcement’s investigation of these crimes, officers located the man who was seen on video casing the store. He claimed that there were four men involved—two other men were the masked men who entered the store, and Appellant was the getaway driver. The first man (“the Witness”) then identified Appellant in two photographic line-ups.

Before the eventual severing of Appellant’s case from the cases against the two actual shooters, Appellant filed a notice with the court stating that he “adopts and joins in any and all previously motions filed on behalf of any of the co-defendants in this case to what ever [sic] effect they may have on the above named defendant.”. The notice failed to specify any particular motion or motions Appellant sought to adopt. The trial court treated this notice as a motion and denied it without a hearing. The court found that, the motion was “vague, non-specific and non-descript,” and stated that the court “ha[d] no idea” which motions Appellant was attempting to adopt. The. order did suggest, however, that the court would be receptive to a future motion by Appellant to adopt his co-defendants’ motions if specific ones were identified by title or docket number. No future motion was ever filed.

The last piece of trial evidence relevant on appeal was the introduction of the lineup photos used by the Witness to identify Appellant. The latter objected to these photos only on the basis that the photos were overly prejudicial because- they revealed a small facial tattoo which Appellant, with the court’s permission, had attempted to hide from the jury throughout the trial.

The jury convicted Appellant on all counts. However, it found that Appellant did not actually possess a firearm or wear a mask, even while determining that he was guilty of the crimes “with a firearm while wearing a mask.”

Analysis

As noted above, we affirm Appellant’s first issue (as to whether the trial court erred by- admitting testimony regarding the contents .of Appellant’s cell phone and/or the historical phone records from Appellant’s provider) without discussion, as this issue was not preserved in the trial court through a proper and timely objection on the specific legal ground raised on appeal. Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010).

Appellant’s second issue on appeal argues that the trial court .erred by admitting the photo line-ups used by the Witness to identify Appellant. We review the trial court’s determination for an abuse of discretion. Mazza v. State, 25 So.3d 659, 661 (Fla. 4th DCA 2010). Defendant’s argument in his briefs appeared to be that the identification process was unduly suggestive. See id. To the extent that this is his argument, we hold both that this issue was unpreserved and that it is without merit. However, at oral argument, Appellant’s attorney clarified that his argument was solely regarding the prejudicial nature of the photographs. See § 90,403, Fla. Stat. (2015). Although this Court was able to locate the small tattoo on Appellant’s face after a close examination of the photographs in the record, we cannot determine from the trial transcript whether this tattoo would have also been visible to the jury when they looked at Appellant’s face in the courtroom. The record does not clearly demonstrate that the trial court abused its discretion in determining that the probative value of the line-up photo was not substantially outweighed by the danger of unfair prejudice.

Appellant next argues that the trial court reversibly erred by denying his motion to adopt all motions filed by his co-defendants. Although he is correct that adoption by reference is a well-accepted practice, Appellant’s motion in this case was not an adoption by reference so much as it was a request for the court to wade through the entire' records of multiple cases searching for anything that might benefit Defendant. Although they .arise from different circumstances, we adopt here the reasoning of Simmons v. State, 42 So.3d 823 (Fla. 4th DCA 2010), and Spera v. State, 971 So.2d 754 (Fla. 2007). In those cases, this Court and the Florida Supreme Court held that the appropriate disposition of a vague motion is to allow for a more precise motion to be made. Simmons, 42 So.3d at 824; Spera, 971 So.2d at 761. Here, that is exactly what happened. The trial court, justifiably unwilling to shoulder the heavy burden of performing the task expected of Appellant’s counsel, denied Appellant’s motion without prejudice and invited Appellant to re-file a motion which identified the specific motions of his co-defendants he sought to adopt. We affirm the trial court’s handling of this matter.

Finally,' Appellant argues that his convictions must be reversed because the jury was inconsistent in finding him guilty of the charged crimes while simultaneously finding that he did not possess a gun or wear a mask. “An inconsistent verdicts claim presents a pure question of law and is reviewed de novo.” Brown v. State, 959 So.2d 218, 220 (Fla. 2007). “As á general rule, inconsistent jury verdicts are permitted in Florida.” Id. (quoting State v. Powell, 674 So.2d 731, 732 (Fla. 1996)). Thé only exception to this rule is when'“an acquittal on one count negates a necessary element for conviction on another count.” Id. (quoting Powell, 674 So.2d at 733). Here, because thé jury did not acquit Appellant of anything, this exception does'not apply.

Although Appellant’s argued claim of error regarding his conviction is without merit, we recognize that the trial court may have improperly classified his attempted murder and robbery charges and/or illegally enhanced the sentences for those charges. In State v. Rodriguez, 602 So.2d 1270 (Fla. 1992), the Florida Supreme Court held that section 775.087(1), Florida Statutes, which deals with enhancing a crime when a weapon is possessed, requires that the defendant be the actual person to possess the weapon. Rodriguez, 602 So.2d at 1271. In Wright v. State, 810 So.2d 873 (Fla. 2002), the court held the same with regard to section 775.0845, which enhances crimes when a mask is worn. Wright, 810 So.2d at 874. Under this line of cases, Appellant’s crimes apparently should have been scored without the firearm or mask enhancements because the jury found that he did not actually possess a firearm or wear a mask. Rodriguez, 602 So.2d at 1271; Wright, 810 So.2d at 874; see also Ford v. State, 145 So.3d 202, 203 (Fla. 1st DCA 2014) (applying Rodriguez); Juarez v. State, 65 So.3d 110, 111 (Fla. 4th DCA 2011) (same). As stated, however, Appellant has not raised this particular argument to this Court, and we are therefore unable to grant him relief at this time. Our affirmance on this point is without prejudice to Appellant filing a motion under Florida Rule of Criminal Procedure 3.800(a) to correct his sentence, a motion under Rule 3.850 alleging ineffective assistance of trial counsel for failing to bring this error to the attention of the trial court, or a petition under Florida Rule of Appellate Procedure 9.141(d) alleging ineffective assistance of appellate counsel for failing to 'raise this issue in this Court.

Conclusion

We affirm this case in its entirety. Appellant failed to preserve his argument that his phone information should be suppressed, and we therefore do not reach the merits of that issue. We further conclude that the record does not demonstrate the trial court abused its discretion in determining that the line-up photograph was not unduly prejudicial and that the trial court did not err in denying Appellant’s overbroad motion to adopt (especially because the trial court expressed a willingness to consider a more focused motion). Finally, although we hold that the verdicts in this case were not truly inconsistent, we recognize the apparent problem with the classification/enhancement of Appellant’s crimes and affirm on this issue without prejudice to Appellant filing an appropriate motion addressing the problem.

Affirmed.

Warner and Damoorgian, JJ., concur.

      . We offer no opinion on the merits of such a motion should one be made.

      . At trial, Appellant explicitly stated that he was only objecting to the introduction of the photographs, not to the introduction of the identification.

      . The Witness testified that he knew Appellant "[pjretty much'all his life” and that he was in the vehicle with Appellant while the crimes in this case occurred. Considering all the circumstances, there was not a "substantial likelihood of irreparable misidentification” even assuming the procedure was unnecessarily suggestive. Mazza, 25 So.3d at 661,

      . Defendant wore makeup to cover the tattoo, but the prosecutor said that it'was still-visible, The judge, however, suggested earlier that he could not see the tattoo even before the make up was applied.

      . Again, we offer no opinion on the merits of any ineffective assistance claims that may be raised.


author: Damoorgian, J.

text:
    Kevin Lamont SAMMIEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3310
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   Damoorgian, J.

Kevin Sammiel appeals his conviction and sentence for one count of first degree murder and one count of armed robbery. Appellant raises twelve issues on appeal. Finding merit in none, we affirm but write to address the court’s suppression .ruling.

Appellant, along with two other men, Thomas Byrd and Sherman Colson, were charged with the robbery and murder of Dustin Deckard (the “Victim”). We set forth the following salient facts. in our opinion on Byrd’s appeal:

The evidence established the Victim was shot and killed while walking to a friend’s home shortly after 12:30 a.m. Surveillance video from a nearby house depicted the Victim walking by while talking on his cell-phone at 12:31 a.m. About a minute later, the tape caught a light colored mini-van slowly driving by. Shortly thereafter, a witness saw two men struggling with the Victim, and noticed a “beat-up” “grayish-green” minivan idling nearby. At first, the witness assumed that the van was stopping to call the police, but then saw the two men run towards the -van, get in the passenger-sliding door, and watched the van speed away in a northbound direction. The witness called 911 at 12:38 a.m. and the police immediately put out a BOLO for the van. Around the same time, another witness called the police anonymously and reported that there was a dead body lying on the sidewalk.
The first officer to respond to the BOLO reported seeing what appeared to be a gold colored minivan with damage on the driver’s side about three blocks north-east of the shooting at 12:40 a.m. At 12:48, an officer a few miles north spotted a van matching the BOLO description. That officer pursued the van and, as soon as he turned on his overhead lights, a passenger (who turned out to be [Byrd]) jumped out of the van. The driver (Colson) pulled over and police arrested him and the remaining passenger, Sammiel. [Byrd] was quickly apprehended with the assistance of a K9 unit. Law enforcement recovered the Victim’s cell-phone from inside the van. The murder weapon was never found.
Upon being arrested, [Byrd] refused to speak with the police. Colson, on the other hand, admitted to his role in the murder and identified [Byrd] as the shooter. Sammiel spoke with police, but denied any involvement in the robbery and shooting, claiming that an unspecified “they” came and picked him up from his aunt’s house presumably after the shooting.

Byrd v. State, 2017 WL 2569782, at *1 (Fla. 4th DCA June 14, 2017).

Prior to trial, Appellant moved to suppress evidence of the cell-phone found in the van and Appellant’s statement, arguing that the evidence was gathered as the result of an unlawful arrest. Specifically, Appellant argued that “law enforcement did not have reasonable articulable suspicion to justify stopping the van [because] the BOLO in this case was vague.”

The court held a suppression hearing wherein the State presented audio of the two 911 calls as well as testimony from the eyewitness caller and the officers ■ who were involved in the pursuit and stop of the van. At the hearing, the witness clarified that there was no traffic at the time she saw the incident. She also testified that the van was silver, older, and had tinted windows. The first officer to respond to the initial BOLO explained that it was difficult to tell the exact color of metallic cars under the street lights. He reiterated that the van he saw was either silver or gold, was older, had dark tint, some body damage, black door handles, and was heading in a northbound direction. The officer saw that there were multiple people inside the van. Based on all of the circumstances, he called in his sighting of the van and provided further descriptive details. The officer who effectuated the stop testified that when he encountered the van, there were no other cars on the road. Since the van matched the BOLO for a gold or silver van headed in a northbound direction from the crime scene, he pulled behind the van and effectuated the stop. The van in question was registered as a silver van.

Appellant submitted testimony from a private investigator who testified that he mapped three possible routes from the crime scene to where the van was ultimately stopped. The investigator explained that the route which crossed paths with the first officer to respond to the BOLO was the longest route, 5.2 miles.as opposed to the shortest route of 4.6 miles. Appellant also introduced DMV records which established that there were over 6,000 silver vans registered in Palm Beach County during the relevant timé period.

Considering the foregoing, the court denied Appellant’s motion, ruling that:

Based on the totality of the circumstances, including but not limited to, the source of the information for the BOLO, the information provided in the BOLO, the suspects’ direction, of travel, the late night hour, the lack of traffic on the road and the location of the offense in relation to the stop, [law enforcement] had a well-founded reasonable suspicion to 'justify the stop of the defendant’s vehicle.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the hourt must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most' favorable to sustaining the trial court’s ruling.” Rolling v. State, 695 So.2d 278, 291 (Fla. 1997). “The appellate court will accept the trial court’s factual findings if they are supported by competent substantial evidence.” Gaines v. State, 155 So.3d 1264, 1268 (Fla. 4th DCA 2015). “However, the trial court’s application of the law to the historical facts is reviewed de novo.” Id.

“To conduct an investigatory stop, a police officer must have ‘a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.’” Id. (quoting Popple v. State, 626 So.2d 185, 186 (Fla. 1993)). Ip this case, the van in which Appellant was riding was stopped based on a BOLO. “[T]he assessment of reasonable suspicion in the context of a BOLO is a fact-specific inquiry.” State v. Jemison, 171 So.3d 808, 812 (Fla. 4th DCA 2015).

“A BOLO providing a ‘bare bones’ description of a vehicle, without more, is insufficient to create the reasonable suspicion necessary for a traffic stop.” Id.; see also Walker v. City of Pompano Beach, 763 So.2d 1146, 1148-49 (Fla. 4th DCA 2000) (no reasonable suspicion to stop a vehicle based on a BOLO for a “ ‘small red colored vehicle Nissan/Toyota type’ ” where there were no details regarding the crime, there was no information about the perpetrators or how they left the scene, and there was no evidence of flight from the police or other evasive conduct). “By contrast, even where a BOLO does not provide significant details, reasonable suspicion can arise if a vehicle matches the BOLO description and there are additional supporting factors.” Jemison, 171 So.3d at 812. “The following factors are relevant in assessing whether a vehicle stop pursuant to a BOLO was supported by a founded suspicion: ‘(1) the length of time and distance from the offense; (2)[the] route of flight; (3) [the] specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.’” Id. at 811 (quoting Hunter v. State, 660 So.2d 244, 249 (Fla. 1995)).

In Jemison, we held that under the totality of the circumstances, an officer had reasonable suspicion to stop a vehicle based on a relatively generic BOLO for a “white Tacoma pick-up truck, newer model, with dark tinted windows” because there were additional supporting factors. Id. at 812-13. Namely, the officer saw a vehicle matching the description along the only route available within six minutes of the BOLO being issued at a time of day when traffic was very light. Id. at 812. Additionally, the BOLO came from a reliable source: the victim; and the driver was acting suspicious. Id.; see also Monfiston v. State, 924 So.2d 61, 63 (Fla. 4th DCA 2006) (finding reasonable suspicion to stop the vehicle where, although the BOLO did not provide significant details, it matched the description of the vehicle stopped—a dark-colored Ford Expedition—, the vehicle was traveling in the direction indicated by the BOLO, the vehicle traveled for a distance without its lights on, and the vehicle immediately changed directions after the driver observed the officer); State v. Wong, 990 So.2d 1154, 1155-56 (Fla. 3d DCA 2008) (BOLO identifying a silver or gray BMW driven by a Hispanic male provided reasonable suspicion—even though the BOLO did not include a direction of travel taken by the. vehicle—where a vehicle matching the BOLO description was 2.5 to 3 miles away from the scene of the crime and was at a location that the officer believed was the most likely exit to be used by the perpetrators); State v. Gelin, 844 So.2d 659, 660-62 (Fla. 3d DCA 2003) (BOLO, which described a white van with two black males but provided no direction of travel and no further description of the occupants, gave the police reasonable suspicion to conduct a stop where detective went to the location he believed the individuals would go to leave the area of the robbery).

Here, although the physical description of the van given by the eyewitness in the 911 call was relatively bare-bones (“grayish-greenish beat up van”), there were four additional factors which created reasonable suspicion to stop the van. First, the BOLO came from a reliable source: a citizen eyewitness who had no interest in the situation and who was fully cooperative with law enforcement. Second, there were virtually no other cars on the road at the time the BOLO went out. Third, the witness told law enforcement that there were at least three people in the vehicle and was able to identify the vehicle’s direction of travel. Fourth, law enforcement stopped the vehicle within 10 minutes of the BOLO and less than 5 miles away from where it was initially spotted. Under the totality of these circumstances, law enforcement had a reasonable suspicion to conduct the stop. Jemison, 171 So.3d at 813. Accordingly, we hold that the court did not abuse its discretion in denying Appellant’s motion to suppress. Finding no other errors, we affirm Appellant’s conviction and sentence.

Affirmed.

Ciklin and Levine, JJ., concur.

      . Appellant argues that the court erred by: 1) denying his motion for judgment of acquittal on both counts, 2) denying his request to amend the standard jury instruction on principals, 3) excluding testimony regarding 'gunshot residue testing, 4) finding that the State proffered a genuine, race neutral reason for striking two venire members, 5) denying Appellant’s motion to suppress the traffic stop, 6) admitting a portion of Appellant’s recorded statement wherein the interrogating officer stated that she already knew what happened, 7) redacting a portion of Appellant’s- statement, 8) overruling Appellant’s objections to the State's opening and closing comments regarding the DNA evidence,' 9) overruling several oilier objections to the State’s closing, 10) admitting certain cell-phone records, 11) failing to conduct a Richardson hearing based on the State identifying a records custodian as a "Class C” witness, and 12) allowing the State to introduce a photograph of Appellant in handcuffs.


text:
    Marie Carmen KEBREAU, Appellant, v. BAYVIEW LOAN SERVICING, LLC, in substitution for the original Plaintiff Christiana Trust, a division of Wilmington Savings Fund Society, FSB, as Trustee for Normandy Mortgage Trust, Series 2013-18, Appellee.
    No. 4D16-2010
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]
    Catherine A. Riggins, Miami, for appellant.
    Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.
   Warner, J.

A homeowner appeals a final judgment of foreclosure, raising multiple issues. We address briefly the homeowner’s argument that the foreclosure action was barred by the statute of limitations, as well as' her contention that the mortgage was invalid because the deed to her was legally insufficient. We hold that the complaint was not barred by the statute of limitations where it alleged continuing defaults. As to the deed, the homeowner failed to properly raise her claim of its invalidity, and in any event, its defect was cured through the after-acquired title doctrine. We reverse, however, the attorney’s fees award, as .the appellee concedes that it did not present sufficient evidence to. support the attorney’s fees in the final judgment.

The homeowner argues that the final judgment of foreclosure should be reversed as barred by the statute of limitations because the complaint alleges'‘that the homeowner defaulted in failing to make the payment due in July 2010, which occurred more than five years prior to the complaint being filed. The appellee counters that the complaint also alleged that the homeowner had failed to make all subsequent payments. Thus, the complaint alleged defaults that fell within the five-year limitations period. The Second District Court of Appeal-addressed nearly identical facts in both Bollettieri Resort Villas Condominium Ass’n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), and Desylvester v. Bank of New York Mellon, No. 2D15-5053, 219 So.3d 1016, 2017 WL 2562370 (Fla. 2d DCA June 14,. 2017). It concluded that “the .allegar tions of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations.” Desylvester, at 1020, at *3. We agree with Bollettieri and Desylvester. Accord Deutsche Bank Tr. Co. Ams. v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc); Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S.D. Fla. 2013). Contra Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA, 2016) (holding that a foreclosure complaint alleging a default in payment in 2006 and all subsequent payments was barred by statute of limitations because the date of default was more than five years prior to filing complaint).

The homeowner also contends that the mortgage was invalid because she failed to acquire legal title to the property due to k defect in the legal description in the deed to homeowner. The homeowner waived this defense, however, by not raising it in her answer. See Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017). Moreover, under the after-acquired title doctrine, any error in the original deed was corrected by a subsequent corrective deed. See Layne v. Layne, 74 So.3d 161, 163 (Fla. 1st DCA 2011); BMCL Holding LLC v. Wilmington Tr., N.A., 201 So.3d 109, 112 (Fla. 3d DCA 2015) (“The doctrine of after-acquired title applies to mortgages.”); Rose v. Lurton Co., 111 Fla. 424, 149 So. 557, 558 (1933).

The homeowner argues that there was insufficient evidence presented to support the award of. attorney’s fees in the final judgment of foreclosure. The,appellee concedes this point, as there was no testimony from counsel as to time spent. We therefore reverse the award of attorney’s fees.

As to all other;issues raised, we affirm without further comment.

Affirmed in part; reversed in part.

Gerber, C.J., and Forst, J., concur.


text:
    Joseph D. BALDINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4668
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tal-, lahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant, Joseph Baldino, appeals his convictions for one count of solicitation of a parent for unlawful sexual contact with a minor, five counts of transmission of child pornography, and ninety-nine counts of possession of child pornography. He raises two issues: first, that the court erred in denying his motion to suppress the computers seized as a result of a search warrant because the affidavit in support of the warrant contained material misstatements and omissions constituting intentional or reckless conduct by the police, which defeated probable cause; and second, that the court erred in admitting an additional 124 uncharged pictures of child pornography from a computer which were not inextricably intertwined with the charged crimes. As to the first issue, we affirm, as the court appropriately applied the analysis of Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Johnson v. State, 660 So.2d 648, 656 (Fla. 1995). As to the second issue, the uncharged images were not inextricably intertwined, and the court erred in overruling appellant’s objection to their admission. As we cannot find that their admission was harmless beyond a reasonable doubt, we reverse and remand for a new trial on the possession of child pornography counts.

The charges against appellant arose after a St. Lucie County detective was contacted by a detective in Missouri who had received pornographic photographs of children from a “joeybaldino” while doing undercover computer investigations. The Missouri detective subpoenaed Yahoo for the name and address associated with the username. Yahoo responded with an address in Port St. Lucie, Florida. The St. Lucie detective was also contacted by an Illinois detective who had received unsolicited online requests from- a username of “joeybaldino” and started receiving child pornography over the computer. Posing as “Pam,” the mother of a twelve year old daughter, the detective engaged in multiple chat room conversations with “joeybal-dino,” some of which involved setting up a sexual encounter with the child. A third detective from New York also contacted the St. Lucie detective. He informed him of child pornography that a resident in New York had received from a “joeybaldi-no” while in a chat room. The New York detective had subpoenaed the Yahoo records and received the same information as did the Missouri detective. Based upon this information, the St. Lucie detective applied for a search warrant.

The warrant for a search of all computers at the address received from the Yahoo records, which was the family home of appellant, was executed by detectives. Living at that address were appellant, his parents, his brother, and his sister. Four computers were found, and two were removed for further analysis. Regarding one computer, which had stickers on it and was password protected, appellant, who was home at the time, admitted that it was his computer and he was the only one to use it. A forensic search of the computer revealed pornographic images of children. Based upon the chat room contact with the Illinois detective and the images found on the computer, appellant was charged with computer solicitation of a parent for unlawful sexual contact with a minor, transmission of child pornography, and possession of child pornography.

Appellant moved to suppress the search warrant of the computer, claiming that the affidavit contained material misrepresentations and omissions, and the detective either acted recklessly or intentionally in submitting the affidavit. He claimed that material information was omitted from the affidavit regarding appellant’s addresses at the time that various transmissions of child pornography were made; various omissions of additional information identifying “joeybaldino” that was different than that contained in the affidavit; and the existence of other “joeybaldinos” in the area. The court heard extensive argument from computer experts regarding IP addresses and the information that the .detective did not include in the affidavit.

The court then entered a detailed order denying suppression. It concluded that any information that the detective had failed to include was unintentionally excluded. In response to appellant’s argument that the detective did not have personal knowledge of all that was contained in the affidavit, the court found that the detective could rely on information from fellow officers. State v. Bowers, 87 So.3d 704, 709 (Fla. 2012). After reviewing the details of each of the investigations, the court acknowledged that only the Missouri investigation provided sufficient information upon which to base probable cause, but applying Franks, .the affidavit was sufficient to secure a search warrant.

. At trial, the Illinois detective testified he was assigned to the child exploitation unit, which investigates internet crimes against children,. While in a Yahoo chat room in which there were a lot of sexually-based conversations regarding children, the detective, posing as “Pam,” received a private message from an individual with the screen name “joeybaldino.” While engaging' in a conversation of a sexual nature about the fictional daughter of “Pam”, the detective received thirty images of child pornography from “joeybaldino.” During the next several days, the detective sent three messages to “joeybaldino” to see whether there was still interest in the child, as the detective (“Pam”) was coming to Florida. In one of the chats, “joeybaldi-no” admitted sending images of child pornography to Pam.

Several days later, they had another computer chat, and “joeybaldino” again discussed arranging a sexual encounter with Pam and her daughter. Five days later, Pam sent “joeybaldino” a picture of “herself,” and “joeybaldino” responded with a webcam picture of himself to the detective. The detective identified the web-cam image as being a photo of appellant. The webcam picture was introduced as an exhibit. Around ten days later Pam and “joeybaldino” chatted again, during which child pornography was transmitted, as well as in another chat a'few days later.

Summarizing, during four different chats, “joeybaldino” sent child pornography to Pam and tried to set up a sexual encounter with Pam and her daughter. Transcripts of all the chats and messages were admitted as exhibits, as were the images and videos of the child pornography.

When the search warrant- was - served, the detectives seized two computers. As part of the search, detectives interviewed appellant. He admitted that the password-protected computer, upon which a forensic analysis showed substantial child pornography, was his.

The detective who performed the forensic examination of the computers testified regarding the child pornographic images found on the computer appellant identified as his, the possession of which was charged in the information. The detective identified the images and testified that these images were accessed either during the time of, or shortly after, the chat room conversations with Pam. Two images of the appellant were found on the computer. One, taken by webcam and located under “my document” and “my pictures,” was created on April 10, 2011, and last accessed on April 21, 2011.

In addition, the State sought to introduce 125 uncharged pornographic pictures found on appellant’s computer. One.was accessed close in time to the chat session with Pam on March 26, 2011, four hours after two images of appellant’s face had been created, but the other 124 photos were accessed on a date unconnected with the various chats which formed the basis of the charges. The defense objected, but the trial court admitted the pictures as “inextricably intertwined” with the charged offenses.

The defense called appellant’s sister, who testified that the entire family had access to the computer, although she admitted that she had told the detectives executing the search warrant that it belonged to appellant. Appellant also called a computer expert who testified that there were multiple “joeybaldino” logins with multiple IP addresses from multiple locations all over the world. Some of those occurred while appellant was incarcerated. He also examined two other computers from the home and found one image of child pornography on one, and LimeWire, a peer-to-peer software often used to download pornography, on another.

The jury convicted appellant on one count of soliciting a parent for unlawful sexual'conduct, five counts of transmission of child pornography and ninetymine counts of possession of child pornography, all as charged. He was sentenced to consecutive five year terms of prison on each count. Appellant now appeals.

Search Warrant

Appellant challenges the trial court’s order denying the motion to suppress the computer evidence found from the execution of the search warrant, because the warrant was based upon a materially misleading affidavit. The trial court, however, followed Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and determined that the affidavit did support probable cause for the warrant. We agree.

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the appellate court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. The appellate court defers to the trial court’s findings regarding the facts in connection with a suppression motion and uses the de novo standard of review for legal conclusions. Luna v. State, 154 So.3d 1181, 1183 (Fla. 4th DCA 2015).

In Franks, the Court developed a test to determine whether misstatements in affidavits'for search warrants would require suppression of the fruits of those searches. Where a defendant challenges an affidavit as containing a material misstatement, " the defendant must make a preliminary showing: (1) that the affiant knowingly, or intentionally or with reckless disregard for.the truth included a false statement in the affidavit used to obtain a search warrant; and (2) that statement was necessary to the finding of probable cause. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. If the defendant establishes these allegations by a preponderance of the evidence, then the court must suppress the fruits of the search. Id.

In Johnson v. State, 660 So.2d 648 (Fla. 1995), the court extended the Franks requirements to omissions in affidavits, adding these additional requirements for the court to assess: (1) “whether the omitted material, if added to the affidavit, would have defeated probable cause,” and (2) whether “the omission resulted from intentional or reckless police conduct that amounts to deception.” Id. at 656. Without all of these findings, suppression of evidence seized by a search warrant, supported by the affidavit, should be denied. Id.; see also Pagan v. State, 830 So.2d 792, 807 (Fla. 2002); Murray v. State, 155 So.3d 1210, 1217 (Fla. 4th DCA 2015).

In reviewing the affidavit and the extensive testimony at the hearing on the motion to suppress, the trial court found no intentional or reckless conduct on the part the detective who prepared and submitted the affidavit. Having reviewed the evidence, the court’s conclusion was supported by competent substantial evidence. There were omissions and some misstatements, but the trial court not only explained why they were not intentional or deceptive, it also, in accordance with Johnson, determined that the omissions, if added to the affidavit, would not have defeated probable cause. While it found .that the evidence of the New York and Illinois investigations would not have supported probable cause, the information from the Missouri investigation, in and of itself, was sufficient to support probable cause. We give deference to the trial court’s findings of fact and agree with its legal conclusions. The motion to suppress was properly denied.

Introduction of Uncharged Crimes

In his second issue, appellant argues that the trial court erred in overruling his objection to admission of the additional 124 uncharged images of child pornography found on the computer. The standard of review for a trial court’s admission of evidence is abuse of discretion, but a trial court’s discretion is limited by the rules of evidence. Gaines v. State, 155 So.3d 1264, 1271 (Fla. 4th DCA 2015).

The trial court found that the images were inextricably intertwined with the charged crimes. Appellant contends that they were not intertwined and showed only propensity to commit crimes. Unlike the images of child pornography charged by the State, each of which was accessed close to the time of a chat room conversation with Pam, these additional images were not tied to any of the charged crimes. The State argues that the images were intertwined, because on the date they were accessed, appellant had created two images of himself on the same computer.

“Evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is admissible under section 90.402, Florida Statutes, because ‘it is a relevant and inseparable part of the act which is in issue.’” Osborne v. State, 743 So.2d 602, 602 (Fla. 4th DCA 1999) (quoting Coolen v. State, 696 So.2d 738 (Fla. 1997)). “Evidence is ‘inextricably intertwined’ if it is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).” Ward v. State, 59 So.3d 1220, 1222 (Fla. 4th DCA 2011).

In this case, the uncharged images of child pornography do not satisfy any of the reasons for admitting inextricably intertwined evidence. They did not assist in “adequately describing the deed” of soliciting a parent for unlawful sexual conduct with a minor, transmission of child pornography, or possession of the charged images of child pornography. Id. Nor do the images provide an intelligent account of the other crimes or establish the entire context out of which the crimes arose. They do not describe events leading up to the charged crimes, because the images were accessed after all of the charged crimes occurred. Because the collateral crimes do not fit within any of the reasons to admit such evidence, the court abused its discretion in finding that the uncharged crimes were inextricably intertwined.

In its brief, the State contends that inextricably intertwined evidence can be used to prove identity, citing to Smith v. State, 866 So.2d 51 (Fla. 2004). In Smith, a murder case, a witness testified that immediately after the shooting the victim, the defendant said that the victim was the “13th or 14th [person] that ... he had shot.” Id. at 57. The supreme court held that the evidence was relevant to identity, because Smith’s defense was that someone else had shot the victim. Id. at 60. The court then' stated that in addition the statement was inextricably intertwined with the crime, having been made immediately after the murder. Id. at 62. The court adopted Professor Charles W. Ehrhardt’s explanation of inextricably intertwined evidence that “this evidence is admitted for the same reason as other evidence which is a part of the so-called ‘res gestae’; it is necessary to admit the evidence to adequately describe the deed.” Id. at 63 (quoting C. Ehrhardt, Florida Evidence § 404.16 (1984 Edition)). Professor Eh-rhardt distinguished it from Williams rule evidence, stating “it seems that both the language of Section 90.404(2)(a) and- of Williams indicates that the rule applies to evidence of discrete acts other than the actions of the defendant committing the instant crime charged.” Smith, 866 So.2d at 63. In this case, the admission of uncharged child pornography images are evidence of discrete acts, not actions of the defendant in committing the charged crime. Thus, Smith supports a conclusion that this evidence was not inextricably intertwined evidence.

We thus conclude that court abused its discretion in admitting the 124 uncharged images of child pornography. The question becomes whether the admission of these images is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. See Chapman [v. California], 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705 (1967)]. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

Id. at 1135. As noted in Ward, the State’s burden is higher because of the nature of collateral crime evidence:

Here, the state starts out with an even more arduous burden because “[t]h© erroneous admission of collateral crimes evidence is presumptively harmful.” McCall v. State, 941 So.2d 1280, 1283 (Fla. 4th DCA 2006) (citations and quotation marks omitted). This is because “[ejvidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.”

Ward, 59 So.3d at 1224.

In evaluating the evidence, there was clearly overwhelming evidence of the commission of each of the crimes charged. Yet, the presence of overwhelming evidence alone does not satisfy the DiGuilio test. And in this case, there are three separate crimes to which the harmless error test must be applied.

As to the charge of solicitation of the parent for sexual conduct with a minor, the chat room conversations and the actual webcam image of the appellant, which he sent during one of the conversations, constitute powerful evidence. Appellant’s identification of himself through the webcam picture tied him to the chats in which the solicitation took place. The fact that nearly a month later images of child pornography may have been accessed on a computer on which he also created images of himself is completely irrelevant to the crime of solicitation. Similarly, with respect to the transmission of the pornographic images, not only were they transmitted during the chat room conversations,. but appellant admitted in one conversation that he had transmitted them to Pam. Again, we fail to see how the possession of additional uncharged images of child pornography in any way could have possibly influenced the verdict on.this issue.

As to the counts of possession of child pornography, however, we come to a different conclusion. In his defense, appellant attempted to show that the computer on which the images were found was a family computer which could be accessed by anyone in the house. The introduction of an additional 124 images from that computer together with two images of him may have influenced the jury to conclude that the 100 images charged in the information were also-possessed by the appellant. At least we cannot say that the State has shown beyond a reasonable doubt-that they would not have influenced' the jury in the rendering it's verdict on the possession counts.

For the foregoing reasons, we affirm appellant’s convictions and sentences for soliciting a child for unlawful sexual conduct using' computer services or devices and transmission of child pornography. We reverse appellant’s convictions’ for possession of child pornography and remand for a new trial. ’

Taylor and Levine, JJ., concur.

      . It specifically noted that it was not admitting the images as Williams rule evidence, because the State did not make that argument to the court. See Williams v. State, 110 So.2d 654 (Fla. 1959).


author: Gerber, C.J.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. Ehud RAFAELI and Lizabeth Rafaeli, PNC Bank, N.A., Successor by Merger to National City Bank, The Meadows Maintenance Association, Inc., Unknown Parties in Possession #1 and Unknown Parties in Possession #2, if living, and all Unknown Parties claiming by, through, under and against the above named Defendants who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, of Other Claimants, Appellees.
    No. 4D16-1376
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]
    Ileen J. Cantor of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellant.
    Mark L. Pomeranz of Poineranz & Associates, P.A., Hallandale, for appellees Ehud Rafaeli and Lizabeth Rafaeli.
   Gerber, C.J.

The note owner appeals from the trial court’s final judgment in the homeowners’ favor after a non-jury trial on the. note owner’s foreclosure action. At the end of the non-jury trial, the trial court appears to have granted the homeowners’ motion for involuntary dismissal, albeit for different reasons than the grounds upon which the homeowners moved for involuntary dismissal. The note owner argues the trial court erred in ruling in the homeowners’ favor on the grounds upon which the court relied. We agree with the note owner. Thus, we reverse for entry of final judgment in the note owner’s favor.

Procedural History

The note owner’s original servicer filed a verified foreclosure complaint alleging the following in pertinent part. The homeowners defaulted on a promissory note which was secured by a mortgage on the homeowners’ home. The. note owner authorized the original servicer, which held the note, to file the foreclosure action. Attached to the complaint was a copy of the note identifying “America’s Wholesale Lender” as the lender. The note also bore a blank endorsement executed by “Countrywide Home Loans, Inc. doing business under the fictitious business name of America’s Wholesale Lender, a New York corporation.”

The homeowners filed an answer and affirmative defenses, which included the allegation that the note owner’s original servicer lacked standing to bring or maintain the action.

The note owner’s original servicer later filed with the court the original note bearing the lender’s blank endorsement. The original note matched the copy of the note which the original servicer attached to the complaint.

Two years later, the note owner’s original servicer filed a verified motion to substitute the note owner as the plaintiff. The trial court granted the motion.

A non-jury trial was held. The note owner introduced into evidence the original note bearing the lender’s blank endorsement.

The note owner then called upon its current servicer’s employee to testify. The current servicer’s employee testified, among other things, that his company was authorized to service the loan on the note owner’s behalf through a limited power of attorney which the note owner executed before the original servicer filed the complaint.

After the note owner rested, the homeowners moved for an involuntary dismissal, arguing that the note owner failed to prove standing for three reasons: (1) the note identified “America’s Wholesale Lender” as the lender, but bore a blank endorsement executed by “Countrywide Home Loans, Inc. doing business under the fictitious business name of America’s Wholesale Lender, a New York corporation”; (2) the note owner did not present testimony of when the blank endorsement occurred; and (3) the note owner’s original servicer filed suit in its own name rather than in the note owner’s name.

The trial court stated that it was “not really concerned with those issues.” Instead, the trial court asked the note owner’s attorney what evidence existed to prove: (1) the original servicer was authorized to file the action; (2) the ability to service the loan was transferred to the current servicer; and (3) the current servi-cer was authorized to pursue the action.

The note owner’s attorney responded that the original servicer was authorized to file the action because the original servicer held the note when it filed the action. The note owner’s attorney also responded that the limited power of attorney, which the note owner executed, proved that the ability to service the loan was transferred to the current servicer and that the current servicer was authorized to pursue the action.

The trial court then asked the note owner’s attorney whether the original servicer was authorized to file the action given that the note owner executed the power of attorney in favor of the current servicer before the original servicer filed the complaint. The note owner’s attorney again responded that the original servicer was authorized to file the complaint because it held the note when it filed the complaint.

The trial court, apparently unsatisfied with the note owner’s attorney’s answers to the court’s questions, ruled in the homeowners’ favor:

I’m still troubled with regard to the way that [the current servicer] came into this. I think under [Florida Rule of Civil Procedure] 1.190(d), there should have been some type of an amendment. But not withstanding that, all that testimony came in without objection. Nonetheless, I still don’t think there was sufficient testimony to show that the ability to prosecute this action was also transferred [after the original servicer filed the complaint].
I don’t think [the note owner] can have it both ways, saying that [the note owner] had the ability to [file the complaint], and then have it brought by someone else. For those reasons, I will find for the [homeowners],

(emphasis added).

The trial court ultimately entered a final judgment in the homeowners’ favor.

This appeal followed. The note owner argues the trial court erred in ruling in the homeowners’ favor on the grounds upon which the court relied, which were grounds not raised by the homeowners. The note owner argues that the trial court instead should have focused on the grounds which the homeowners raised, that is, whether the original servicer, as the initial plaintiff, had standing, regardless of which entity was servicing the loan at the time of the proceedings. According to the note owner, the unrefuted evidence established that the original servicer held the blank-endorsed note when it filed the complaint, thereby giving the original servicer standing when it filed the complaint. The note owner adds that, after it was substituted for the original servicer as the plaintiff in this action, it had standing at trial where it introduced into evidence the original blank-endorsed note.

Our Review

Our review is de novo. See Caraccia v. U.S. Bank, Nat’l. Ass’n, 185 So.3d 1277, 1278 (Fla. 4th DCA 2016) (“We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.”) (citation omitted).

We agree with the note owner’s arguments. The Uniform Commercial Code provides that a promissory note, as a negotiable instrument, is enforceable by the holder. § 673.3011(1), Fla. Stat. (2015). The term “holder” means “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2015). Here, the note owner’s unrefuted evidence established that the original servicer physically possessed the blank-endorsed note when it filed the complaint, thereby giving the original servicer standing to enforce the note as the note’s holder when it filed the complaint.

The fact that the original servicer physically possessed the note on the note owner’s behalf when it filed the complaint is insignificant. We held in Caraccia that a third party, such as a loan servicer or a law firm, may physically possess a note without affecting a financial institution’s meaningful interest in the note. 185 So.3d at 1279. In such a case, the financial institution has constructive possession of the note so long as the financial institution retains the power to exercise control over the note. Id. Thus, when an agency relationship exists, “the element of possession can be met through either actual or constructive possession.” Id. In the instant case, although the note owner may have been able to initiate a foreclosure action as the holder with constructive possession of the note, the original servicer was also able to initiate the action as the holder with physical possession. See Caraccia, 185 So.3d at 1279 (distinguishing Tremblay v. U.S. Bank, Nat’l Ass’n, 164 So.3d 85 (Fla. 4th DCA 2015), where the servicer was the only holder and therefore was the only proper party to initiate foreclosure proceedings).

After the note owner was substituted for the original servicer as the plaintiff in this action,, the note owner had standing at trial when it introduced into evidence the original blank-endorsed note. In Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016), we addressed the issue of standing when a party seeking to foreclose attaches a copy of the note to the complaint and later files the original with the court:

We recognize the fact that a copy of a note [being] attached to a complaint does not conclusively or necessarily prove that the Bank had actual possession of the note at the time the’ complaint was filed. However, if the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and,' therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

Id. at 925.

Here, the original servicer attached a copy of the note to the complaint, and later filed with the court the original note, two years before substituting the note owner as the party plaintiff. The combination of these two actions indicate that the original servicer physically possessed, the blank-endorsed note and, therefore, that the original servicer had standing to foreclose at the inception of this action. Id. This standing was conveyed to the note owner as the substitute plaintiff. See Jallali v. Christiana Tr., 200 So.3d 149, 152 (Fla. 4th DCA 2016) (“A substituted plaintiff can acquire standing to foreclose if the original party had standing.”). .

Based on the foregoing, the note owner conclusively proved standing to foreclose through ‘ competent, substantial evidence. Accordingly, we reverse the trial court’s final judgment in the homeowners’ favor and remand for entry of final judgment in the note owner’s favor.

Reversed and remanded.

Warner and Forst, JJ., concur.


text:
    Johnny Trevon COOK, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2788
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]
    Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In Cook v. State, 190 So.3d 215 (Fla. 4th DCA 2016), we affirmed appellant’s convictions but reversed for resentencing because appellant’s aggregate sentence of 93 years “did not give him a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,’ and was thus unconstitutional.” Id. at 216 (quoting Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)).

At the resentencing hearing on remand, the trial judge heard testimony and resen-tenced appellant to an aggregate sentence' of 70 years. The trial judge recognized that appellant would be entitled to a meaningful review of his sentence under section 921.1402, Florida Statutes (2016).

Neither the judgment nor the sentence documentation indicate that appellant is entitled to sentence review. Written findings are required by statute. See § 775.082(3)(b)2.c., Fla. Stat. (2016) (providing that “[t]he court shall make a written finding as to whether a person is eligible for a sentence review hearing under s. 921.1402(b) or (c).”) (emphasis added).

We reject appellant’s claim of ineffective assistance of counsel on this direct appeal from the resentencing. The ineffectiveness complained of is not apparent on the face of the record. See Dennis v. State, 696 So.2d 1280 (Fla. 4th DCA 1997). We affirm the sentence but remand for the trial court to enter the written finding referenced above.

Gerber, G.J., Gross and Kuntz, JJ., concur.