author: WOLF, J.

text:
    S.J., Appellant, v. Malcolm THOMAS and School Board for Escambia County, Florida, Appellees.
    CASE NO. 1D16-3635
    District Court of Appeal of Florida, First District.
    Opinion filed December 19, 2017

      Benjamin James Stevenson, ACLU Foundation of Florida, Pensacola, and Nancy Abudu, ACLU Foundation of Florida, Miami, for Appellant.
    Joseph L. Hammons, The Hammons Law Firm, Pensacola, for Appellees.
   WOLF, J.

Appellant S.J. challenges a trial court order dismissing with prejudice his complaint requesting mandamus relief. Appellant, a high school student, requested the trial court to require appellee the Escam-bia County School Board (the School Board) to issue a final order as defined by the Administrative Procedure Act (the APA), in section 120.57(7), Florida Statutes (2015), in an administrative proceeding regarding appellant’s “disciplinary reassignment” by the School Board. We find that the complaint for mandamus relief sufficiently alleged facts that entitle appellant to mandamus relief. We, therefore, reverse and remand for the trial court to issue an alternative writ of mandamus directing the School Board to show cause why the alternative writ should not be granted. See Holcomb v. Dep’t of Corr., 609 So.2d 751, 753 (Fla. 1st DCA 1992); Radford v. Brock, 914 So.2d 1066, 1067-68 (Fla. 2d DCA 2005).

I. Facts

Appellant, a minor, sued the School Board and the Superintendent of Schools, Malcolm Thomas. In his complaint, appellant alleged that the superintendent removed him from his regúlar, traditional school, West Florida High School, through a process called “disciplinary reassignment,” and did not give him an option to attend another traditional school. Instead, appellant alleged he had to finish out the school year at either an alternative school or a virtual school. Appellant opposed the “disciplinary reassignment” and requested a hearing, which was held pursuant to the APA, sections 120.569 and 120.57, Florida Statutes. On January 28, 2016, the hearing officer issued a recommended order recommending appellant be “disciplinarily reassigned” for the remainder of the 2015-2016 school year.

On February 16, 2016, the School Board adopted the hearing officer’s recommended order, and in March 2016 it created a Notice of Adoption of Recommended Order. There is no indication that the School Board intended its Notice of Adoption of Recommended Order to be a rendered final order pursuant to section 120.57(7). Further, the School Board’s actions throughout this proceeding indicate that although it held a hearing on the issue of appellant’s “disciplinary reassignment” pursuant to the APA, it did not intend to bestow upon appellant all of the rights afforded by the APA.

After the Notice of Adoption of Recommended Order was filed, appellant filed a complaint alleging two counts, only one of which is pertinent to the current appeal: appellant requested a .writ of mandamus against the School Board, alleging the Board had an indisputable legal duty to issue a written final order pursuant to the APA following the hearing and the hearing officer’s recommended order of “disciplinary reassignment.” Appellant reasoned that his “disciplinary reassignment” affected his substantial interests much like expulsion. Specifically as to the nature of the “disciplinary reassignment,” appellant’s complaint alleged:

10. Following an incident on October 1, 2015, the Student’s regular school principal suspended the Student.
11. Based on the October 1 incident, the Student’s school principal requested that the Superintendent remove the Student from his regular school.
12. On October 21, 2016 [sic], the Superintendent recommended to the School Board to remove the Student ■from his regular school through a.process called “disciplinary, reassignment.”
13. Both disciplinarily reassigned students and students expelled with services are removed from their regular schools. Expelled students are offered the same educational services at an alternative or virtual school as offered to disciplinarily reassigned students.
14. Like the determination to expel a student, the determination to disciplin-arily reassign a student affects his substantial interest.
15. Disciplinary reassign [sic] affects a student’s substantial interest in a high quality education and educational opportunities in several ways including the quantity and quality of work, assignments, the curriculum design, availability of physical education, the teaching methods and learning activities used, access to highly qualified teachers, positive social interactions with traditional school students during both instructional and non-instructional periods, eligibility to participate in sports and extracurricular activities, blemish on school record, and the location of the school.
16. After the Superintendent issued his recommendation' of disciplinary reassignment, the Superintendent prohibited the Student from attending his regular school. The Superintendent has prohibited the Student from attending his regular school since the Superintendent made the recommendation of disciplinary reassignment. The Superintendent continues to prohibit the Student from attending his regular school or any other traditional school in the School District.

(Emphasis added).

The School Board moved to dismiss appellant’s complaint requesting mandamus relief, alleging it had no legal duty to issue a final written order pursuant to the APA because (1) the Legislature did not explicitly require the same APA due process protections for “disciplinary reassignment” as it did for expulsion, and (2) appellant’s “disciplinary reassignment” did not trigger APA protection because it did not affect his substantial interests.

A hearing was held on the motion to dismiss on May 26, 2016, where both parties presented argument. The trial court orally granted the motion to dismiss, holding that the APA did not apply to “disciplinary reassignment” both because (1) the Legislature did not explicitly provide for “disciplinary reassignment” to fall under the purview of the APA like it provided for expulsion; and (2) “disciplinary reassignment” did not affect a substantial interest of appellant. The court also determined that the School Board allowing an administrative hearing in this case and having the hearing officer make findings of fact and conclusions of. law did not automatically vest jurisdiction within the APA.

II. Analysis

A request for mandamus relief is appropriate when an agency wrongfully refuses to issue an administrative final order pursuant to the APA. Sowell v. State, 136 So.3d 1285 (Fla. 1st DGA 2014). Our review of a trial court’s order dismissing a complaint based upon an interpretation of statutes is de novo. See Walker v. Ellis, 989 So.2d 1250 (Fla. 1st DCA 2008); Henry v. State, 134 So.3d 938, 946 (Fla. 2014).

This court has laid out the appropriate procedure for a trial court when ruling on a motion to dismiss a request for mandamus relief. Similar to .ruling on any motion to dismiss, the trial court must consider the sufficiency of the allegations as pled,

In.order for a court to issue a writ of mandamus, a petitioner “must show that he has a clear legal right to the performance of a clear legal duty by . a public officer and that he has no other legal remedies available, to him.” Hatten v. State, 561 So.2d 562, 563 (Fla.1990). When a petitioner files a petition for mandamus, the court has the initial task of assessing the legal sufficiency of the allegations'. If the court finds the allegations insufficient, it will deny the petition, see, e.g., Gibson v. Florida Parole & Probation Comm’n, 450 So.2d 553 (Fla. 1st DCA 1984), or dismiss those claims that are factually insufficient, see, e.g., Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA 1987). However, if the petition is facially sufficient, the court must issue an alternative writ, i.e., an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989); Fla.R.Civ.Pro. 1.630(d).

Holcomb, 609 So.2d at 753.

“Disciplinary reassignment" is neither defined nor mentioned in the Florida Statutes. Thus, the method of review of this type of disciplinary action of the School Board is not clearly outlined. However, other types of disciplinary decisions are specifically addressed in the statutes, which set out the methods of review of those decisions. Appellant .claims he is entitled to a final order under the APA and that such a final order is necessary for this court to review this case on the merits. Mitchell v. Leon County Sch. Bd., 591 So.2d 1032, 1033 (Fla. 1st DCA 1991) (“In the absence of rendition of a proper order there is nothing for this court to review nor, for that matter, any true legal obstacle to Mitchell’s return to classes.”). We, therefore, must resolve two issues: (A) whether “disciplinary reassignment,” as set out in the complaint, is sufficiently similar to other types of discipline that fall under the purview of the APA to also require APA protections in this case, including the rendering of a final order; and (B) even if “disciplinary reassignment” is not sufficiently similar to other types of discipline, whether its application nonetheless affects appellant’s substantial interests and therefore requires application of the APA.

A. Whether “Disciplinary Reassignment” is Similar to Other Types of Education Code Discipline

The Florida Legislature permits school districts to deprive a student of his or her constitutional right to an education in a traditional school and remove the student from the classroom in four specific ways. School districts may remove a student through (1) in-school suspension; (2) out-of-school suspension; (3) expulsion; and (4) either voluntary or involuntary assignment to a “dropout prevention [or] academic intervention program.” See § 1006.07(l)(a), Fla. Stat. (2015) (directing school boards to’adopt rules for the “in-school suspension, [out of school] suspension, and expulsion of students”); § 1003.53, Fla. Stat. (2015) (“defining dropout prevention [or] academic intervention program”); § 1003.32(5), Fla. Stat. (2015) (indicating a student removed from a classroom may be placed in in-school suspension, out-of-school suspension, assigned to a “dropout prevention [or] academic intervention program,” or expelled).

Each form of removal is clearly defined in the Education Code. § 1003.01, Fla. Stat.; § 1003.53, Fla. Stat. Further, the Florida Legislature has explicitly indicated whether each form of removal is subject to the APA. Both in-school and out-of-school suspensions are excluded from the APA. § 1006.07(l)(a), Fla. Stat. Expulsion and involuntary assignment to a “dropout prevention [or] academic intervention program” ai’e subject to the APA. § 1006.07(l)(a), Fla. Stat.; § 1003.53(5), Fla. Stat.

Rather than reviewing the entirety of the Education Code as a whole, however, the trial court looked only to one section of the Code, section 1006.08(1), Florida Statutes (2015), to support its finding that the APA did not apply to “disciplinary reassignment” because that section did not explicitly provide for it.

Section 1006.08(1) notes the authority of various school employees to place disruptive students “in an alternative education setting;” however, it does not delineate the types of “alternative education settings” in which students may be placed. It does specifically note, though, that a student who is recommended for expulsion by the district school superintendent will have the due process rights of the APA. Relying solely on this section, the trial court determined, and the School Board argues, that the Legislature’s silence indicates its clear intent to exclude students facing placement in an “alternative educational setting” other than expulsion from the procedural protections of the APA.

The trial court’s reading of section 1006.08 does not give the Legislature’s intent full consideration because it does not consider the Education Code in its entirety. The Legislature’s determination in section 1006.08 that students who are expelled should be protected by the procedural due process rights of the APA cannot necessarily be read to exclude students facing placement in an “alternative education setting” from receiving the same due process protections. “ ‘[I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.’ ” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla. 2008) (quoting Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 575-76 (Fla. 1958)).

The Education Code, in sections other than section 1006.08, provides APA protections to students who are placed in other “alternative education settings” but are not expelled. For example, involuntary placement in a dropout prevention and academic intervention program could be considered “placement in an alternative education setting;” though section 1006.08 itself did not expressly provide for APA protection for those involuntarily placed in a dropout prevention and academic intervention program, section 1003.53, Florida Statutes, explicitly does. Thus, it is illogical, from reading the Education Code in pari materia, to determine that the Legislature’s failure to note in one section of the Education Code that “alternative education settings” other than expulsion could be governed by the APA evinced a legislative intent to exclude ah of the other “alternative education settings” from the APA’s jurisdiction.

Further, in the Education Code, the Legislature not only specifically noted certain “alternative education settings” that were governed by the APA, it also specifically noted certain “alternative education settings” that were exempt from the APA. For example, section 1006.07(l)(a) notes that “[sjuspension hearings are exempted from the provisions of chapter 120,” but that “[e]xpulsion hearings shall be governed by ss. 120.569 and 120.57(2).” The Legislature did not explicitly exclude “disciplinary reassignment” from the purview of the APA as it did with other forms of discipline.

Because the Legislature failed to explicitly determine whether “disciplinary reassignment” itself falls within the purview of the APA, we reject an interpretation of the Education Code that requires this court to look .solely at the statutes without consideration of the consequences of “disciplinary reassignment” as alleged in the complaint to determine whether those consequences entitle a “diseiplinarily reassigned” student to the due process protections of the APA.

Where the Legislature has determined that expulsions and involuntary assignments to dropout prevention and academic intervention programs do require the procedural protections of the APA, it is logical to further conclude that “disciplinary reassignments” that are factually indistinguishable on the face of the complaint from expulsion and involuntary assignment to dropout prevention and academic intervention programs should also fall within the purview of the APA. Here, we believe appellant’s “disciplinary reassignment” as alleged in his complaint is similar to both expulsion and involuntary assignment to dropout prevention and academic intervention programs as defined by the Education Code.

“Expulsion” is defined in the Education Code as “the removal of the right and obligation of a student to attend a public school under conditions set by the district school board, and for a period of time not to exceed the remainder of the term or school year and 1 additional year of-attendance. Expulsions may be imposed with or without continuing educational services and shall be reported accordingly.” § 1003.01(6), Fla, Stat. (2015) (emphasis added).

Appellant contends that “disciplinary reassignment” is the same as expulsion with continuing educational services because his reassignment prevented him from attending another traditional school. However, the School Board points out that expulsion eviscerates the student’s right to attend a public school, whereas “disciplinary reassignment” allows the student to attend a public school—just a different one than his or her original public school. It notes that here, appellant was able to enroll in a virtual school. The distinction is a fine one and may even be a distinction without a difference, as expulsion can include “continuing educational services.” Further, in the current case, appellant alleged in his complaint that he was not given the option of attending another traditional public school. If these allegations are taken as true, there is no meaningful distinction between expulsion and the “disciplinary reassignment” in this case.

Additionally, as noted by appellant, “disciplinary reassignment” has much in common with involuntary assignment to dropout prevention and academic intervention programs as outlined in section 1003.53, Florida Statutes. That Statute notes that while normally student participation in a dropout prevention or academic intervention program is voluntary, “[district school boards may ... assign students to a program for disruptive students.” § 1003.53(l)(a), Fla. Stat. A student qualifies for services funded through the dropout prevention and academic intervention program if he or she “has a history of disruptive behavior in school.” § 1003.53(l)(c)3, Fla. Stat. “Disruptive behavior” in that subsection is defined as behavior that either “[ijnterferes with the student’s own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide or results in frequent conflicts of a disruptive nature,” or that “[sjeverely threatens the general welfare of students or others with whom the student comes into contact.” § 1003.53(l)(c)3b, Fla. Stat.

Dropout prevention and academic intervention programs may differ from traditional educational programs and schools in:

scheduling, administrative structure, philosophy, curriculum, or setting and shall employ alternative teaching methodologies, curricula, learning activities, and diagnostic and assessment procedures in order to meet the needs, interests, abilities, and talents of eligible students.

§ 1003.53(l)(a), Fla. Stat.

These differences between dropout prevention and academic intervention programs and traditional- educational programs mirror the ways in- which appellant alleged his - “disciplinary reassignment” from his traditional School to a virtual school affected his substantial interests:

the quantity and quality of work assignments, the curriculum design, availability of physical education, the teaching methods and learning activities used, access to highly qualified teachers, positive social interactions with traditional school students during both instructional and non-instructional periods, eligibility to participate in sports and extracurricular activities, blemish oh school record, and the location of the school.

Thus, expulsion, involuntary assignment to a dropout prevention and academic intervention program, and the “disciplinary reassignment” as' alleged in the current case all have shared characteristics that may involve involuntary separation from the traditional educational setting and benefits attached to such placement for potentially long periods of time. Becausé of this similarity, and because appellant’s complaint must be taken as true with: the procedural posture of this case, we find the trial court erred in granting the motion to dismiss appellant’s complaint. Where appellant sufficiently alleged a similarity between “disciplinary reassignment” and two other disciplinary measures that explicitly fall under the purview of .the APA pursuant to the Education Code, it was error for the trial court to determine, solely on the face of appellant’s complaint, that appellant’s own “disciplinary reassignment” did not also fall, within the APA’s purview.

B. Whether Appellant’s “Disciplinary Reassignment” in the Current Case Affects His Substantial Interests

Appellant also alleges that the consequences of his “disciplinary reassignment” as set forth in his complaint affected his substantial interests, and therefore his “disciplinary reassignment” required the application of the APA. We agree. To determine whether an action affects the substantial interests of the plaintiff pursuant to section 120.569, Florida Statutes, two questions must be asked: (1) whether the proposed agency action results in an injury-in-fact that is of sufficient immediacy to justify a hearing; and (2) whether the injury is of the type that the statute under which the agency has acted is designed to protect. School Bd. of Palm Beach County v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1231 (Fla. 2009) (quoting Fairbanks, Inc. v. State, Dep’t of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994)).

1. Injury-in-Fact

Under the first prong, “the injury-in-fact standard is met by a showing that the petitioner has sustained actual or immediate threatened injury at the time the petition was. filed, and ‘[t]he injury or threat of injury must be both real and immediate, not conjectural or hypotheti-eai.’ ” S. Broward Hosp. Dist. v. State, Agency for Health Care Admin., 141 So.3d 678, 681 (Fla. 1st DCA 2014) (quoting Village Park Mobile Home Ass’n v. State, Dep’t of Bus. Regulation, 506 So.2d 426, 433 (Fla. 1st DCA 1987) (holding that appellant established injury-in-fact by showing the real and immediate injury that it would not receive a refund .of almost $150,000 as a result of AHCA’s action)); Menorah Manor, Inc. v. Agency for Health Care Admin., 908 So.2d 1100, 1104 (Fla. 1st DCA 2005) (finding Menorah Manor failed to prove substantial injury where the harm it alleged was eonclusory, speculative, and 'regarded damage only to its reputation).

In his complaint, appellant alleged, that the School Board affected his substantial interests by removing him from his regular school and “disciplinarily reassigning” him to an alternative or virtual school:

Disciplinary reassign[ment] affects a student’s substantial interest in a high quality education and educational opportunities in several ways including the quantity and quality of work assignments, the curriculum design, availability of physical education, the teaching methods and learning activities used, access to highly qualified teachers, positive social interactions with traditional school students during both instructional and non-instructional periods, eligibility to participate in sports and extracurricular activities, blemish on school record, and the location of the school.

The School Board states that this allegation is insufficient and relies on School Board of Orange County v. Blackford, 369 So.2d 689, 691 (Fla. 1st DCA 1979), in which two parents of children who attended Cherokee Junior High School alleged that they (via their children) had a substantial interest in their children's school being shut down and their children being transferred to Howard Junior High School. This court determined that although “[e]very concerned parent has an interest in their children and in the educational program in which their children are enrolled,” and “[t]hey also have a natural interest that the educational progress of the child not be unnecessarily disrupted,”" a change from one school to the other, on its face, standing alone, could not be considered a hindrance. Id.

Blackford, however, does not apply because it involved a transfer from one traditional high school to another. In contrast, in this case appellant alleged that his “disciplinary reassignment” affected his ability to attend a traditional high school at all. He alleged that “[t]he Superintendent continues to prohibit the Student from attending his regular school or any traditional school in the school district.” (Emphasis added). Thus, appellant properly alleged injury in fact and met the first requisite element to prove his “disciplinary reassignment” affected his substantial interests.

2. Injury of the Type Protected by the Statute

To meet the second element necessary to prove his “disciplinary reassignment” affected his substantial interests, appellant needed to show his injury was of the type that the statute under which the School Board acted was designed to protect. Fairbanks, 635 So.2d at 59. We find appellant has done so.

The statutes at issue in the present case were intended to establish a balance between the right of the school administration to control the behavior of students at school for the benefit and welfare of all students versus the rights of a student to due process in challenging severe disciplinary measures.

The purpose of the Education Code as a whole “is to provide by law for a state system of schools, courses, classes, and educational institutions and services adequate to allow, for all Florida’s students, the opportunity to obtain a high quality education.” § 1000.01(2), Fla. Stat. (2015). Thus, appellant’s allegation that his “disciplinary reassignment” affects his substantial interests in attending a traditional public school are the type of interests the Education Code was designed to protect.

However, the Education Code also requires the school districts “[p]rovide for the proper accounting for all students of school age, for the attendance and control of students at school, and for proper attention to health, safety, and other matters relating to the welfare of students.” § 1003.02(1), Fla. Stat. (2015) (emphasis added). “Control of students” encompasses adopting “rules for the control, attendance, discipline, in-school suspension, suspension, and expulsion of students.” § 1003.02(l)(c)l, Fla. Stat. We do not challenge the ability and necessity of the School Board to control and ensure a safe environment for all of its students.

Nonetheless, the Education Code does provide for a balance between the two occasionally competing interests of the student’s right to receive a high-quality public education and the duty of school boards to control students. This balance can be found in the Legislature’s determination that certain disciplinary actions are governed by the APA. Pro Tech Monitoring, Inc. v. State, Dep’t of Corr., 72 So.3d 277, 279 (Fla. 1st DCA 2011) (“[T]he purpose of the Administrative Procedure Act is to ensure due process and fair treatment of those affected by administrative actions.”).

Thus, the procedural safeguards afforded by the APA allow students to challenge the School Board’s disciplinary decisions that affect their substantial interests. Where, as here, appellant has appropriately alleged his substantial interests are affected, the APA enables appellant to challenge the School Board’s disciplinary action. In conclusion, we determine that appellant’s complaint pled a facially sufficient request for a writ of mandamus ordering the School Board to render a final order of appellant’s “disciplinary reassignment.” Appellant sufficiently alleged that the “disciplinary reassignment” in his case was virtually indistinguishable from expulsion with continued educational services, which falls under the purview of the APA pursuant to the Education Code. Appellant also sufficiently alleged that “disciplinary reassignment” affected his substantial interests.

As such, we determine that the trial court erred in granting the School Board’s motion to dismiss appellant’s complaint, and we REVERSE and REMAND for the trial court to issue an -alternative writ of mandamus directing the School Board to show cause why the requested relief should not be granted. See Holcomb, 609 So.2d at 753; Radford, 914 So.2d at 1067-68.

B.L. THOMAS, C.J., and ROBERTS, J, CONCUR.

      . We decline to address appellee's assertion raised for the first time on appeal that a final order was actually issued. This claim was not raised in the motion to dismiss or ruled on by the trial court. Further, the face of appellant’s complaint contradicted this assertion.

      . The Fifth District Court of Appeal recently held that a student who was transferred from her then-current school to a virtual school for a period of time was not entitled to the protections of the APA. G.F.C. v. Pace, 225 So.3d 421 (Fla. 5th DCA 2017). We do not find this case persuasive, The court relied on a case from the Fourth District, D.K. ex rel. Kennedy v. District School Board of Indian River County, 981 So.2d 667 (Fla. 4th DCA 2008), which held that a student who was suspended for 10 days is not entitled to the protections of file APA. To the extent that the Fifth District equates the punishment imposed in G.F.C. with a period of short suspension, we reject that contention. For the reasons previously expressed, we determine that the punishment imposed in this case is more similar to an expulsion than a brief suspension.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Sharon Marie WEAVER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4461
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington,. Assistant Attorney General, Tampa, for Appellee,
   CASANUEVA, Judge.

Sharon Marie Weaver challenges the denial of her motion to suppress, which she preserved for appeal when pleading guilty on one count of operating an unregistered vehicle and one count of possession of a controlled substance. We conclude that the trial court’s denial of the motion to suppress was erroneous and reverse.

I. FACTS AND PROCEDURAL HISTORY

On April 14, 2016, Ms. Weaver -was stopped because the license plate on the vehicle, she was driving did not match the vehicle. According to- the arresting officer, Ms. Weaver explained when questioned “that-her friend attached the tag to the vehicle so that she was able to drive it.” The -officer arrested Ms.. Weaver for attaching a- license plate not assigned to that vehicle. A search of Ms. Weaver incident to arrest revealed that' she was in possession of amphetamine. Ms. Weaver was ultimately charged with possession of a controlled substance and operating an unregistered vehicle, § 320.02(1), Flá. Stat. (2015), rather than attaching a license plate not assigned, § 320.261!

Ms. Weaver moved to suppress evidence obtained pursuant to the arrest and search incident to arrest, arguing that the officer lacked probable cause to arrest because the officer did , not observe her attach the license plate to the vehicle. Thus, she argued, the warrantless arrest for a misdemeanor committed outside the presence of the officer was illegal. The State argued that Ms. Weaver’s statement to the officer combined with the officer’s observations were- sufficient to provide probable cause to arrest. The trial court denied the motion.

Ms. Weaver entered an open plea following the denial of the motion to suppress, reserving the right to appeal the denial of the motion. She was sentenced to forty-eight months’ probation.

II. ANALYSIS

“When reviewing a motion to suppress, the standard of review for the trial court’s application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by. competent, substantial evidence.” Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005) (quoting Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)).

Ms. Weaver was arrested for unlawfully attaching a license plate not assigned to the vehicle she was driving, in violation of section 320.261. Pursuant to section 320.261,

Any person who knowingly attaches to any motor vehicle or mobile home any registration license plate, or who knowingly attaches any validation sticker or mobile home sticker to ■ a registration license plate, which plate or sticker was not issued and assigned or lawfully transferred to such vehicle, is guilty of a misdemeanor of the second degree ....

“An officer is authorized to make a war-rantless arrest for a misdemeanor only when it is committed in the officer’s presence.” Baymon v. State, 933 So.2d 1269, 1270 (Fla. 2d DCA 2006) (citing § 901.15(1), Fla. Stat. (2004); and Nickell v. State, 722 So.2d 924 (Fla. 2d DCA 1998)); see also § 901.15(1), Fla. Stat. (2015).

Several cases have clearly stated that a warrantless arrest for a violation of section 320.261 is proper only if an officer observed the act of attaching the improper license plate to the vehicle. In Phillips v. State, 531 So.2d 1044, 1045 (Fla. 4th DCA 1988), the Fourth District determined that a warrantless arrest for an improper tag violation was invalid where the defendant had not committed the offense in the presence .of the officer. The Fourth District stated: .

There is nothing in the record to'indicate that the police officer personally observed appellant attaching a registration license plate or a validation sticker which was not lawfully transferred 'to the subject vehicle. In the absence of such personal observation by the police officer herein, probable cause to make the warrantless arrest did not exist.

Id. (emphasis added). In State v. Carmody, 553 So.2d 1366, 1367 (Fla. 5th DCA 1989), though the arrest was valid based on other grounds, the Fifth District concluded “that Carmody’s arrest for the license tag offense was invalid because the police officer did not observe Carmody doing the act forbidden by the statute (illegal attachment), and he did not have a warrant.”

The State cites a misdemeanor trespass case, State v. Yunker, 402 So.2d 591 (Fla. 5th DCA 1981), in arguing that the officer in this case had substantial reason to believe that the offense was being committed in her presence. The Yunker case involved a. warrantless • arrest for trespass after warning. The Fifth District clarified that it was not necessary for the initial trespass warning to be issued in the, officer’s presence. Id at 593. It was sufficient that the officer had ‘“substantial reason’ at the time of a warrantless misdemeanor arrest to believe1 from his observation and evidence at the point of arrest that the person Vas then and there committing a . misdemeanor in his presence.’ ” Id. (quoting Spicy v. City of Miami, 280 So.2d 419, 421 (Fla. 1973)). The court explained: “In the instant case, the trespass by Yunker was ‘then and there’ committed on July 1,1980, in the presence of the officer, not at the time the warning was issued on June 18, 1980.” Id.

The alleged offense in this case was committed when the license plate was attached to the vehicle. See § 320.261; Carmody, 553 So.2d at 1367 (noting that the act forbidden by the statute is the illegal attachment of the license plate). Thus, in contrast to Yunker, the misdemeanor in this case was not “then and there” committed in the presence of the officer.

The State argues that Ms. Weaver’s ac-knowledgement that the license plate had been attached by her friend is sufficient to validate the arrest when combined with the officer’s observations. First, we note that Ms. Weaver’s statement points to someone else committing the act of attaching the license plate to the vehicle. Furthermore, the cases cited by the State in support of its argument are distinguishable.

Kirby v. State, 217 So.2d 619 (Fla. 4th DCA 1969), involved a warrantless arrest based on the misdemeanor of allowing an unauthorized person to operate a motor vehicle on a public street. The officer conducted a stop after the driver ran a stop sign. During the stop, the officer discovered that the driver had no license, and the owner of the vehicle admitted to the officer that he had given the individual permission to drive knowing that she had no license. Id. at 620. The commission of the offense required both (1) granting permission to the unauthorized person and (2) operation of the vehicle on the public street by the unauthorized person. Id. at 621. The operation of the vehicle by the unauthorized person occurred in the officer’s presence, but permission was initially granted outside the officer’s presence. The State argued that the first element was sufficiently committed in the officer’s presence because the vehicle owner admitted to the officer that he had given the driver permission. The Fourth District agreed, noting: “The offense is a continuing one as long as the car is being operated upon the public streets or highways.” Id

Here, the misdemeanor offense for which Ms. Weaver was arrested was committed and completed at the point in time when the plate was attached to the vehicle. It is undisputed that the officer did not observe this act. Cf. Brown v. State, 91 So.2d 175, 177 (Fla. 1956) (finding defendant who was pulled over for recklesé driving committed the offense of possessing illicit liquor in the presence of the officer when he admitted to having moonshine in the vehicle). Thus, probable cause to make the warrantless arrest did not exist.

III. CONCLUSION

Because the officer did not observe the act constituting the misdemeanor órense in this case, we conclude that the warrant-less arrest was invalid, and the evidence obtained pursuant to the search incident to arrest should have been suppressed. See Baymon, 933 So.2d at 1270 (“Baymon’s arrest was unlawful. Therefore, the law mandated suppression of the evidence seized in any search performed incident to that arrest.”) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Thomas MCDUFFIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-294
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017
    Jaime J. Garcia, III, of Garcia Law Group, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Thomas McDuffie appeals his judgment and sentences for possession of heroin tvith intent to sell or deliver (count one), possession of cocaine with intent to sell or deliver (count two), resisting, obstructing, or opposing an officer without violence (count three), and driving while his license was revoked as a habitual traffic offender (count four). Though Mr. McDuffie raises five issues on appeal, we address only the issue regarding the Richardson violation. Because we are unable to conclude fhat the State’s willful discovery violation was harmless, we reverse and remand for a new trial.

About a month before trial, the defense filed its first motion for continuance. In the motion, defense counsel requested that Mr. McDuffie’s trial be moved from the September 2015 trial period to the November 2015 trial period. Defense counsel informed the trial court that she had a capital sexual battery trial scheduled to begin about a week before Mr. McDuffie’s trial. She further informed the trial' court that Mr. McDuffie’s right to a speedy trial had been waived. The assistant state attorney stipulated to the continuance, but the trial court still denied the motion.

On September 11, 2015, the State filed its notice of intent to call Officer Howell as an expert witness in “street level drug, sales.” This disclosure was made thirteen days before trial began and six weeks after the court-imposed discovery deadline. The disclosure was also made “right before” defense counsel was scheduled tó start her capital sexualbáttery trial.

On the day 'of trial, before voir dire began, defense counsel moved to continue the trial based on the State’s late disclosure of its expert witness. Consequently, the trial court conducted a Richardson hearing to determine whether there was a possible discovery violation. Defense counsel argued that there was a discovery violation because the State failed to disclose Officer Howell within the timelines set by the trial court. Defense counsel further contended that because the disclosure was late, she was not prepared for trial as she still needed to depose Officer Howell.

In response, the State conceded that the disclosure of its expert witness was late. The State nevertheless argued that the trial court should not grant the continuance because the defense had known about Officer Howell for thirteen days and still failed to take any action in preparation for his testimony. The State further contended that because defense counsel had failed to depose any of its witnesses due to 'Mr. McDuffie’s financial constraints, the defense could not prove that it suffered any procedural prejudice. The State also informed the trial court that Officer Howell’s testimony was “necessary ... or at least-very helpful” in order to prove that Mr. McDuffie had the intent to sell or deliver the drugs allegedly found on or near his person.

But defense counsel insisted that -she was unprepared for trial and -that granting a continuance based on the Richardson violation would allow her to depose Officer Howell. She also maintained that she would potentially call her own expert witness to refute Officer Howell’s proposed testimony. Defense counsel further argued, among other things, that she did not have an opportunity to depose Officer Howell in the thirteen days preceding trial because she was in trial and had been travelling across the country. And though defense counsel admitted to not taking any depositions due in part to Mr. McDuffie’s 'financial constraints, she asserted that it was not “necessary in this particular case” to take depositions because her “strategy” was based on the State’s lack of “tangible evidence.” She assured the trial court that Mr. McDuffie now had the funds to depose Officer Howell.

After hearing the parties’ arguments, the trial court determined that the State’s, late disclosure of Officer Howell was a willful discovery violation as there was “no way the defense could [have] know[n] about this potential witness.” However, the trial court found that the defense was not procedurally prejudiced by the violation. The trial court reasoned that because the defense had known of the expert witness for about two weeks and had failed “to set up a deposition or talk to [its] own experts or file a motion” during that time period, it was “denying] the motion for continuance based on [the] Richardson violation.” The trial then ensued, and Officer Howell testified as expected. The jury returned a guilty verdict on all counts. This appeal followed.

Once the trial court conducts a Richardson hearing and finds that there was a discovery violation, “the appellate court must apply a special harmless error test[.]” Charles v. State, 903 So.2d 314, 317 (Fla. 2d DCA 2005) (citing State v. Schopp, 653 So.2d 1016, 1020-21 (Fla. 1995)). This test “does not focus on the discovery violation’s effect on the verdict.”' Muniz v. State, 988 So.2d 1194, 1197 (Fla. 2d DCA 2008) (citing Scipio v. State, 928 So.2d 1138, 1149 (Fla. 2006)). Rather, the inquiry “focuses on ‘whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense.”’ Id. (quoting Charles, 903 So.2d at 317). The defense is presumed procedurally prejudiced if “there is a reasonable possibility that the discovery violation ‘materially hindered the defendant’s trial preparation or strategy.’ ” Id., (quoting Scipio, 928 So.2d at 1150). “[0]nly if the appellate court can determine beyond a reasonable doubt .that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.”- Id. (alteration in original). Where the State commits a discovery violation, the State -has an “extraordinarily high” burden to show that the error was harmless. See id. (quoting Scipio, 928 So.2d at 1149); Ward v. State, 165 So.3d 789, 792 (Fla. 4th DCA 2015).

Here, we are unable to conclude beyond a reasonable doubt that the Willful discovery violation was harmless. Had the State timely informed the defense of its intent to call Officer Howell as an expert witness, there is a reasonable possibility that the defense’s trial preparation would have changed. For instance, the record reveals that the defense would have deposed Officer Howell prior to trial and possibly called its own expert witness to refute Officer Howell’s opinion regarding the packaging and weight of the drugs. The record also reflects that the defense may have consulted with its own expert witness to further investigate Officer Howell’s proposed testimony and determine which questions it should ask Officer Howell regarding his qualifications or conclusions. Such potentially beneficial courses of action were materially hindered by the State’s late disclosure, especially considering that defense counsel had other obligations at the time of disclosure. Indeed, defense counsel maintained repeatedly that she was unprepared for trial and that her ability to defend her client was hampered by the State’s late disclosure. As a result, we cannot determine that Mr. McDuffie was not'procedurally prejudiced by the late disclosure. See Muniz, 988 So.2d at 1197-98 (reversing and remanding for a new trial where the State’s inadvertent failure to timely disclose its intent to call a potential rebuttal witness “may have changed [the defense’s] strategy”); Suda v. State, 838 So.2d 665, 666 (Fla. 1st DCA 2008) (concluding that the State’s untimely disclosure of its intent to call a witness at trial was not harmless error because it could have changed the defendant’s trial strategy).

Therefore, we must reverse and remand for a new trial.

Reversed and remanded.

VILLANTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . We note that the State also failed to disclose a number of other items in a -timely manner. However, we need not address those late disclosures.


author: OSTERHAUS, J.

text:
    Cristina TARANTOLA, M.D., Petitioner, v. William B. HENGHOLD, M.D., P.A., Respondent.
    CASE NO. 1D17-2367
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Rehearing Denied January 19, 2018

      Todd M. LaDoueeur and Chris K. Rit-chie of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Petitioner.
    Daniel E. Harrell and Robert J. Powell of Clark Partington, Pensacola, for Respondent.
   OSTERHAUS, J.

Dr. Cristina Tarantola seeks certiorari review of an order holding her in civil contempt for violating the terms of a preliminary injunction related to an employment, non-compete agreement entered into by the parties. We grant the petition and quash the order below.

I.

In 2012, Dr. Tarantola signed an employment agreement with Dr. Henghold that contained a covenant not to compete. Among other things, the covenant prohibited Dr. Tarantola, after leaving employment, from “[djirectly or indirectly rendering medical services that include performing Mohs surgery in any capacity for [her] own account or for others” within a forty-mile radius of Dr. Heng-hold’s office and from “[participating in any advertising or marketing activity within the restricted area for the purpose of soliciting patients to obtain medical services that include or may include Mohs surgery.”

When Dr. Tarantola’s employment ended, Dr. Henghold sought to enforce the non-compete covenant in the trial court. He obtained a preliminary injunction enjoining Dr. Tarantola from practicing dermatological medicine within a forty-mile radius of the Henghold Practice. Dr. Tar-antola appealed the injunction and this court reversed, finding the preliminary injunction to be overly broad. Tarantola v. Henghold, 214 So.3d 726, 726 (Fla. 1st DCA 2017). We directed specifically that the injunction should be narrowed because the covenant did not prohibit Dr. Taranto-la from practicing general dermatology unrelated to Mohs surgery. Id. at 727.

After the opinion issued, Dr. Tarantola put up a billboard advertising her practice and activated a website for her business. Dr. Henghold believed that these actions violated the preliminary injunction’s advertising ban and he moved for civil contempt sanctions. The trial court held a hearing and agreed with Dr. Henghold. It found a violation of the preliminary injunction and held Dr. Tarantola in civil contempt for advertising herself “as a doctor who could provide Mohs surgery related services” within the restricted area. The order threatened a $1,640 per day fine unless Dr. Tarantola complied with the following alternative conditions:

a. Take down and deactivate the current Tarantola Dermatology website.
b. Remove the current Tarantola Dermatology billboard that is located in either Pensacola or Escambia County, Florida.
c. ‘Place at her reception desk in both her Pensacola and Gulf Breeze offices the following notice in at least 20 point Times New Roman or Arial type: “Dr. Tarantela is currently prohibited from performing Mohs surgery and any preoperative or postoperative medical services associated with Mohs surgery in this office pursuant to the injunction entered in Case No: 15-1805 CA in and for Escambia County, Florida.”
d. Do not notify patients in her Pensacola and Gulf Breeze offices that she can perform Mohs surgery related services in Alabama.

Dr. Tarantela complied with the conditions and avoided the fine. But then she. filed a petition challenging the trial court’s civil contempt order.

II.

A civil contempt order entered in an ongoing proceeding is subject to certio-rari review. Sears v. Sears, 617 So.2d 807, 809 n.1 (Fla. 1st DCA 1993). To be entitled to certiorari review, the petitioner must show that the' contested order departs from the essential requirements of the law and that it results in material injury for the remainder of the case that cannot be corrected on postjudgment appeal: Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla. 2012). The material injury element is jurisdictional and satisfied in this case because the order imposes conditions upon Dr. Tarantola’s doctor-patient relationships, restricting her from informing her patients about available cancer-related treatment and provider options. See Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800, 813 (2006) (finding irreparable harm based upon the disruption of doctor-patient relationships). These aren’t injuries that can be made whole by monetary damages or otherwise corrected on appeal. See haycock v. TMS Logistics, Inc., 209 So.3d 627, 629 (Fla. 1st DCA 2017) (detailing the material harm showing required to invoke certiorari jurisdiction).

The contempt order departed from the essential requirements of law because it sanctioned Dr. Tarantela in the absence of violations of clear and definite provisions of the preliminary injunction. We recognize, as a threshold matter, that courts have long possessed authority to enforce judgments by the exercise of their contempt powers. Johnson v. Bednar, 573 So.2d 822, 824 (Fla. 1991). But exercising contempt powers based on a party’s noncompliance with a court order can' only occur where a directive “clearly establishes] for the record the standards of conduct required by the court.” Carnival Corp. v. Beverly, 744 So.2d 489, 496-97 (Fla. 1st DCA 1999). An order that does not sufficiently identify the alleged prohibited conduct cannot support a conclusion that a party has intentionally disobeyed it. “[A] judge cannot base contempt upon noncompliance with something an order does not say.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005) (quoting Keitel v. Keitel, 716 So.2d 842, 845 (Fla. 4th DCA 1998)).

The problem here arises because Dr. Tarantola did not violate clear and definite terms of the preliminary injunction’s prohibition on advertising. First, the court found that Dr. Tarantola violated the injunction on the basis of "a billboard that advertised Tarantola Dermatology Inc. as “The Skin Specialists.” The trial court’s order equated thé words “The Skin Spe-. cialists” with advertising specific to Mohs surgery because tHéy “could leave the impression ... that she can provide Mohs surgery services at her [Florida] offices.” However, the record indicates that “The Skin Specialists” reference isn’t synonymous with offering or providing Mohs surgery services. Rather these are generic words describing a medical practice that specializes -in skin, which Dr. Tarantola is authorized to- operate (and advertise) in Florida. See Tarantola, 214 So.3d at 727 (holding that Dr. Tarantola “is not prohibited from practicing general dermatology unrelated to Mohs”); Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/ dermatology (last visited Nov. 30, 2017) (defining dermatology as “a branch of medicine, dealing with the skin, its structure, functions, and diseases”). Because the preliminary injunction did not clearly prohibit Dr. Tarantola from advertising her dermatology practice, the billboard advertisement doesn’t- support entry of the civil contempt order against her. ■

The preliminary injunction’s advertising prohibition also didn’t clearly forbid the information provided on Dr. Tarantola’s website. The website described Dr. Taran-tola’s dermatology practice, including her four offices in two states offering different services. It further identified Dr. Taranto-la’s Mohs surgery-related training and provided that Mohs-related services were offered at her Fairhope, Alabama office. The website didn’t advertise these services as being available in her other three offices, the-two Florida offices and the Brew-ton, Alabama office. And so, here again, because. Dr. Tarantola did not advertise offering Mohs-related services in her Florida offices, the injunction’s advertising prohibition did not clearly apply.

The final basis on which the trial court’s civil contempt order rests relates to Dr. Tarantola’s office consultations with patients. The order concluded that Dr. Tar-antola violated the injunction by telling her Florida patients who need Mohs surgery services that one of their options is to go to her Fairhope, Alabama office location for those services. Specifically, Dr. Taran-tola testified that if a Florida patient sought Mohs súrgery, she’d identify local providers for them, and that she had even referred one patient to Dr. Henghold. However, if a Florida patient adamantly insisted on seeing Dir'. Tarantola for Mohs surgery, she would “have to tell them she doesn’t do that here. You’d have to go to Fairhope, if you wanted to' see her for that.” The trial court considered this communications strategy to be.impermissible advertising, as well as “an indirect method of practicing Mohs in the restricted area.” But we disagree. Giving treatment and provider options to patients seeking that information, including listing her own out-of-state office, doesn’t clearly and definitively fall under the injunction’s prohibitions on “practicing” or “advertising” Mohs surgery. One does not “practice” Mohs surgery, even indirectly, by simply identifying the doctors who provide this service. See Tarantola, 214 So.3d at 727 (describing the indirect practice of Mohs surgery to include things like “pre-operative and post-operative medical services associated with this type of surgery”): Dr. Tarantola’s testimony confirmed that she does not offer Mohs surgery, indirect Mohs services, or Mohs consults in Florida.- Also, it’s too big of a stretch to consider private office discussions with patients about Mohs providers to be “advertising” in violation of the injunction. See Blacks Law Dictionary 55 (7th ed. 1999) (defining “advertising” as “[t]he action of drawing the public’s attention to something to promote its sale”) (emphasis added). The injunction’s practice and advertising prohibitions don’t clearly and definitively prohibit Dr. Tarantola’s provision of Mohs-provider information to her Florida patients. Thus, Dr. Tarantola’s office-consultation practices with patients also don’t support the civil contempt order entered against her.

III.

Because civil contempt sanctions were imposed against Dr. Tarantela in the absence of conduct that clearly and definitely violated the preliminary injunction, we grant the petition for writ of certiorari and quash the order of civil contempt.

LEWIS and MAKAR, JJ„ CONCUR.

       Dr. Henghold argues that this case is moot because Dr. Tarantela avoided the civil contempt fine. We disagree because the alternate sanctions imposed by the civil contempt order are presently preventing Dr. Tárantola from fully advising her patients, operating a website for her business, etc. See Apthorp v. Detzner, 162 So.3d 236, 240 (Fla. 1st DCA 2015) (evaluating justiciability based upon whether the facts “demonstrate a real threat of immediate injury”); Grapski v. City of Alachua, 31 So.3d 193, 198 (Fla. 1st. DCA 2010) ("[T]he doctrine of mootness does not apply to situations where an ongoing procedure violates the law.").


author: WINOKUR, J.

text:
    Todd PAYNE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4115
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017.

      Andy Thomas, Public Defender, and L. Allen Beard, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, David Llanes, Assistant Attorney General, Donna A. Gerace, Assistant Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appel-lee.
   WINOKUR, J.

Todd Payne appeals his convictions and sentences for possession of cannabis and possession of cocaine. We affirm, but write to address two comments made during the State’s closing arguments.

Todd Payne was the passenger in a vehicle driving on a dirt road at night when it was pulled over by Deputy Jeremy Dean. Deputy Dean placed the driver in his patrol car and then asked Payne to exit the vehicle and walk to the back of his patrol car. After Deputy Dean asked if Payne had anything the deputy should be aware of, Payne responded in the negative and offered to be searched. After initially finding nothing, Deputy Dean asked Payne to spread his legs, and a bag containing cannabis and cocaine was subsequently found on the ground. .

Deputy Dean testified that he saw the bag fall from Payne’s pants onto the ground when Payne spread his legs. The defense cross-examined the deputy as to his purported use of a flashlight during the search, as his written reports and deposition did not mention a flashlight. Deputy Dean also testified that his patrol car’s video camera was not functioning at the time of the arrest, and that video of the incident from his personal body camera was accidentally deleted when he downloaded new computer software. Deputy Dean -stated that he never attempted to take fingerprints from the bag of drugs found.

The State also called a forensic chemist to testify, who identified one of the substances recovered as cocaine. The defense called no witnesses.

I.

During the State’s initial closing statement, the prosecutor discussed the elements necessary to convict Payne of possession of cocaine, including the third element, that the substance was in fact cocaine. After the prosecutor reviewed the testimony of the forensic chemist, he concluded, “As to that element the State has met its burden. And, in part, the State would argue that you didn’t hear any contradictory testimony or evidence to rebut the fact.” The defense immediately asked to approach, 'and ¡moved for a mistrial during a sidebar conference, arguing that the comment shifted the burden to Payne to prove that the substance was not cocaine and constituted a comment on his right to remain silent. The trial court denied the mistrial motion, but at the request of the defense, gave a curative instruction to the jury regarding the presumption of innocence and Payne’s right to remain silent.

The prosecutor’s statement was not improper. While using the word “rebut” in this context is unwise, this poor word choice does not overcome the general rule that a prosecutor may properly highlight the lack of contradictory evidence and state what conclusions the jury should make. See Bell v. State, 108 So.3d 639, 647-48 (Fla. 2013). The State was free to review the forensic chemist’s testimony that the substance was cocaine, and remind the jury that there was no evidence offered by the defense to suggest that it was not. Regardless, had the comment been improper, it was not “so prejudicial as to vitiate the entire trial” for a mistrial to be appropriate, especially in light of the curative instruction given to the jury. England v. State, 940 So.2d 389, 402 (Fla. 2006).

II.

During Payne’s ’ closing arguments, the defense discussed the omissions and inconsistencies in Deputy Dean’s earlier accounts of the incident compared to his testimony (e.g., whether he used a flashlight during the search), the absence of any videotapes or recordings, the lack of fingerprints taken from the drugs, and the dark conditions and dirt road where the drugs were found. The defense attacked the deputy’s credibility and argued that the drugs were likely on the ground before Payne and the deputy arrived at the scene.

During the State’s rebuttal closing argument, the prosecutor justified Députy Dean’s omissions in his written report and deposition, stating the following:

You didn’t see a copy of the report. All the evidence is before you. Deputy Dean may or may not have noted in the report the- exact time and the exact weather conditions, but those aren’t relevant, and it doesn’t really matter whether they’re in the report because at the end of the day, he’s a sworn law enforcement officer, tasked with upholding justice ... and he has testified.

The defense immediately objected, and argued that the prosecutor’s statement improperly urged the jury to give special credence to the testimony of a police officer. The trial judge stated, “I’m going to sustain it to this extent: I think you may have put some of these issues in motion. [Prosecutor], just move on from, here as far as that. But beyond that, I think if you were to do too much more, I think you’re moving into a realm that I see [the defense’s] position.” Payne again motioned for a mistrial. The trial court denied the motion, but asked the defense if it would like a curative instruction. The defense replied, “No, sir.”

Suggesting that Deputy Dean should be believed because he is a “sworn law enforcement officer, tasked with upholding justice” is improper argument. See Johnson v. State, 177 So.3d 1005, 1008 (Fla. 1st DGA 2015); Williams v. State, 673 So.2d 974, 975 (Fla. 1st DCA 1996). While the meaning of the trial judge’s response to the objection is arguable, we find that he sustained the objection. The trial judge announced that he sustained the. objection to some “extent,” directed the prosecutor to move on from that argument, and asked the defense if it wanted a curative instruction. If the trial judge did not sustain the objection, and thought the comment was proper, logic dictates that" he would not have offered the defense a curár tive instruction.

As the trial court sustained Payne’s objection, the only question is whether, it erred in denying his motion for mistrial. “A motion for a mistrial should only be' granted when an error is so prejudicial aS to vitiate the entire trial.” England, 940 So.2d at 401-02; see also Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999) (“A decision on a motion for a mistrial is within the discretion of the trial judge and such a motion should be granted only in the case of absolute necessity.”). A trial court’s ruling on a motion for mistrial is reviewed for abuse of discretion. See Salazar v. State, 991 So.2d 364, 371-72 (Fla. 2008). We conclude that the trial court’s denial of the motion for mistrial and offer of a curative instruction was within its discretion and did not result in Payne receiving an unfair trial.

AFFIRMED.

JAY and M.K. THOMAS, JJ., CONCUR.


author: SILBERMAN, Judge.

text:
    Luis ALFARO, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D16-5013, 2D17-1653
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Appellant, Luis Alfaro, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. ' '
   SILBERMAN, Judge.

This is a consolidated appeal from the summary denial of two motions for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In both cases, Luis Alfaro asserted that the concurrent thirty-year sentences he received for .several armed robberies and attempted armed robberies he committed as a juvenile are unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Based on recent developments in the law interpreting Graham, we conclude that the postcon-viction court erred in denying relief.

The postconviction court initially denied relief based on its conclusion that Alfaro’s thirty-year sentences did not constitute de facto life sentences and were therefore not illegal under Graham. The supreme court subsequently issued its decision in Kelsey v. State, 206 So.3d 5, 10 (Fla. 2016), expressly stating that term-of-years sentences do not have to constitute de facto life sentences in order for Graham to apply. Alfaro filed a renewed motion for post-conviction relief asserting that he was entitled to resentencing under Kelsey. The postconviction court again denied relief, concluding that Kelsey only applied to juvenile offenders like Kelsey who initially received life sentences but had been resen-tenced to a term of years under Graham.

After the postconviction court denied Al-faro’s second rule 3.800(a) motion, the supreme court issued an opinion clarifying that Kelsey applies to all juveniles who have been sentenced to term-of-year sentences of more than twenty years in prison but who would not have the opportunity for judicial review as provided in chapter 2014-220, Laws of Florida. Johnson v. State, 215 So.3d 1237, 1239 (Fla. 2017). The court concluded that under Graham a juvenile nonhomicide offender’s term-of-years sentence must include a meaningful opportunity for early release based on a demonstration of rehabilitation and maturity. .Id. at 1243. This court has applied that rationale to a juvenile defendant who received concurrent sentences of thirty years in- prison followed by ten years’ probation even though he had not been resen-tenced under Graham. See Mosier v. State, No. 2D16-5457, 235 So.3d 957, 958, 2017 WL 4557832, at *1 (Fla. 2d DCA Oct. 13, 2017) (relying on Johnson to find a juvenile offender’s sentence illegal under Graham).

Accordingly, we reverse the orders denying postconviction relief and remand for Alfaro to be resentenced as provided in Mosier.

Reversed and remanded with directions.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: MORRIS, Judge.

text:
    Hector Luis Cameron OSORIO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5023
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017.

      Hector Osorio, pro se.
   MORRIS, Judge.

Hector Luis Cameron Osorio appeals an order denying his amended motion for postconvietion relief, which he filed under Florida Rule of Criminal Procedure 3.850. Because the postconvietion court .erred in summarily denying ground two as facially insufficient without first giving Mr. Osorio an opportunity to amend, we reverse as to that ground and remand for the court to strike it with leave to amend. We also reverse the denial of ground seven, which alleges a claim of cumulative error, for the court to reconsider after it resolves ground two. We affirm in all other respects.

Mr. Osorio filed a timely motion for postconvietion relief, raising six claims of ineffective assistance of trial counsel and one claim of cumulative error. The post-conviction court initially struck grounds one and three as facially insufficient with leave to file an amended motion alleging facially sufficient claims. The court’s order warned that “the failure to timely amend the claims stricken in this order will may [sic] result in denial of these claims with prejudice.” Thereafter, Mr. Osorio filed an amended motion for postconvietion relief. After receiving a response from the State, the postconvietion court entered a final order denying Mr. Osorio’s motion.

In denying relief on ground two, the postconvietion court found it to be facially insufficient. Noting that it had already given Mr. Osorio leave to amend, the court denied relief on claim two. However, the court did not find ground two to be facially insufficient when it directed Mr. Osorio to file an amended motion as to grounds one and three. Thus when the court issued its prior order, it did not give Mr. Osorio a meaningful opportunity to amend ground two to state a facially sufficient claim because Mr. Osorio was not on notice that the claim was facially insufficient.

If [a] motion [for postconvietion relief] sufficiently states one or more claims for relief and it also attempts but fails to state additional claims, and the motion is timely filed under this rule, the court shall enter a nonappealable order granting the defendant 60 days to amend the motion to sufficiently state additional claims for relief. Any claim for which the insufficiency has not been cured within the time allowed for such amendment shall be summarily denied in an order that is a nonfinal, nonappealable order, which may be reviewed when a final, appealable order is entered.

Fla. R. Crim. P. 3.850(f)(3). Nothing in the postconvietion record demonstrates that Mr. Osorio could not in good faith amend ground two to allege a facially sufficient claim for relief. See Leonardi v. State, 199 So.3d 1075, 1076 (Fla. 5th DCA 2016) (“A defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected.”). Accordingly, we reverse the summary denial of ground two and remand for the postconvietion court to strike it with leave to amend to state a facially sufficient claim.

In ground seven, Mr. Osorio argued that he was entitled to postconvietion relief based upon the cumulative effect of trial counsel’s errors. Because we are reversing and remanding ground two for further proceedings, we also reverse ground seven. The postconvietion court must reconsider Mr. Osorio’s cumulative error claim after it has resolved ground two. See Flint v. State, 84 So.3d 469, 471 (Fla. 2d DCA 2012).

Because the postconvietion court erred in summarily denying ground two as facially insufficient without first giving Mr. Oso-rio an opportunity to amend, we reverse the order on-review as to that ground and remand for the court to strike it with leave to amend. In addition, because ground seven alleged a claim of cumulative error, we reverse as to that ground and remand for the court to reconsider it after it resolves ground two. We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.


author: SILBERMAN,. Judge.

text:
    Steve Jerod HOLDER, DOC #108004, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2082
    District Court of Appeal of Florida, Second District.
    Opinion filed December 29, 2017
    Steve Jerod Holder, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN,. Judge.

Steve Jerod Holder seeks review of the order denying his motion for postconviction relief which was filed under Florida Rule of Criminal Procedure 3.850. Holder was found guilty of sexual battery with a deadly weapon and false imprisonment in 2009 after a jury trial. Holder argues that the postconviction court erred in summarily denying claim three of his motion for failure to effectively allege prejudice. We agree and reverse and remand for reconsideration of this facially sufficient claim. Holder also argues that the court erred in denying claims one and two after an evi-dentiary hearing. Finding no error, we affirm the denial of these claims without further comment.

In claim three, Holder asserted that trial counsel was ineffective by failing to object to the Allen Charge the trial court gave to the deadlocked jury. Holder alleged that the court told the jurors that they had to stay as long as it took to reach a verdict and could not go home until they did so. In his original rule 3.850 motion, Holder alleged he was prejudiced by the omission because an objection would have preserved the issue for appellate review. After affording Holder an opportunity to amend, the postconviction court again concluded that he failed'to effectively allege prejudice and denied the claim. -

It is error for a trial court to instruct a deliberating jury in a manner so as to coerce them into reaching a verdict. Thomas v. State, 748 So.2d 970, 976 (Fla. 1999). The court should not set forth “coercive deadlines” and make “threats of marathon deliberations” when giving an Allen charge. Monforto v. State, 28 So.3d 65, 68 (Fla. 2d DCA 2009) (quoting Young v. State, 711 So.2d 1379, 1379 (Fla. 2d DCA 1998)), And counsel’s failure to object to such an instruction can .constitute ineffective assistance. See Bruno v. State, 807 So.2d 55, 66 (Fla. 2001).

The postconviction court correctly determined that Holder could not establish prejudice by asserting that counsel’s omission affected his appellate rights. See Bradley v. State, 33 So.3d 664, 683 n.20 (Fla. 2010). However, Holder amended his claim to also allege, “Such threats- spooked the individual juriors [sic] into convicting the defendant to avoid such fate [deliberating all night].” We conclude this is a sufficient allegation of prejudice. See id. at 672 (“Prejudice is met only if there is a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))). We therefore reverse and remand for reconsideration of this claim on the merits.

Affirmed in part, reversed in part, and remanded. ■ ■

LaROSE, C.J., and MORRIS, J., Concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 1.54, 41 L.Ed. 528 (1896).


author: PER CURIAM. SALARIO, Judge,

text:
    J.C., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-792
    District Court of Appeal of Florida, Second District.
    January 5, 2018

      Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

In this delinquency proceeding, the trial court found that J.C. committed the delinquent act of culpable negligence exposing another to personal injury under section 784.05(1), Florida Statutes (2016), withheld adjudication, and placed J.C. on six months of juvenile probation. J.C. appeals, arguing that the evidence was not sufficient to prove the alleged offense. Our preqedent holds that the term “culpable negligence” as used in section 784.05(1) requires a conscious act a reasonable person would know is likely to result in death or great bodily harm. Because the State’s evidence was legally insufficient to prove that, we reverse.

On a summer evening not long after Independence Day in 2016, D.M., a young man of around fourteen, was at his home with his twin brother and grandfather. He heard a knock at the door. He answered it to find J.C.—a friend of his who was then twelve—and another boy. J.C. was holding a small round object in one hand that D.M. recognized as a smoke bomb. J.C. lit the smoke bomb, left the front door area, and went to the road that faced the house. He then threw the smoke bomb toward the open front door. It hit the door and landed on a carpeted floor just inside the house. It was not sparking or flaming, but it was making a lot of smoke. D.M. threw the smoke bomb back out of the house.

Soon thereafter, D.M.’s great uncle, who lived with the twins and their grandfather, returned to a smoky house. The police were called. When they arrived, there was still a lot of smoke and a strong smell of sulfur. No one got hurt, however. Nor was anyone’s property damaged. The smoke bomb was not recovered. At trial, D.M. testified that he and J.C. have remained friends notwithstanding the incident.

The State filed a petition for an adjudication of delinquency which alleged that J.C. violated section 784.05(1) when he threw the smoke bomb at the home. The statute provides that “[wjhoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second degree.” Id At the close of the evidence, the defense argued that the evidence was insufficient to show that J.C.’s throwing a smoke bomb at the house constituted culpable negligence within the meaning of the statute. The trial court disagreed, and this appeal followed.

Our court addressed the evidence required to prove culpable negligence under section 784.05(1) in Azima v. State, 480 So.2d 184 (Fla. 2d DCA 1985). There, a doctor was charged with violating the statute after placing an intrauterine device in a pregnant patient. Although the evidence showed that placing an IUD in a pregnant woman is very risky, the patient fortunately was not injured. Id. at 185-86. After a county court found the doctor guilty and a circuit court affirmed the resulting judgment, the doctor petitioned this court for a writ of certiorari, arguing that his conviction was unsupported by the evidence. Id. at 186.

We held that the evidence was insufficient to establish that the doctor was culpably negligent and granted the writ. Id. at 187. We referred to the supreme court’s decision in State v. Greene, 348 So.2d 3, 4 (Fla. 1977), to explain that culpable negligence requires conduct akin to the conduct required to impose punitive damages in a civil case, and we described the civil punitive damages standard. Azima, 480 So.2d at 186. Then, quoting our decision in Tsavaris v. State, 414 So.2d 1087, 1088 (Fla. 2d DCA 1982), we held that the element of culpable negligence under section 784.05(1) requires the State to prove that the defendant consciously undertook “an act which a reasonable person would know is likely to result in death or great bodily harm to another person, even though done without any intent to injure anyone but with utter disregard for the safety of another.” Azima, 480 So.2d at 186. The requirement that the act include a likelihood of death or great bodily harm was dispositive in Azima because although the State presented evidence that the insertion of an IUD in a pregnant woman could cause death or great bodily harm, there was no evidence that it was likely to do so. Id. at 186-87. We held that “[i]t is the likelihood of death or great bodily harm ... which justifies the imposition of criminal sanctions for culpable negligence.” Id. at 187; see also Kish v. State, 145 So.3d 225, 227-28 (Fla. 1st DCA 2014) (requiring that the State prove a likelihood of death or great bodily harm under section 784.05(1)).

Here, the State failed to present any evidence from which a factfinder could have inferred that a reasonable person would have known that J.C.’s throwing a smoke bomb at D.M.’s home was likely to cause death or great bodily harm. It did not put on any evidence that a smoke bomb is inherently likely to cause death or great bodily harm. Nor did it put on any evidence about the particular smoke bomb J.C. threw, the condition of the smoke bomb when it was thrown, or the likely effect of the smoke on the home or its occupants that would have suggested that death or serious bodily harm was the likely result. In the final analysis, the State’s evidence showed only that J.C. threw a smoke bomb that was smoking, but not on fire, at the door of the house. Without more, that simply does not permit a finding of an intentional act a reasonable person would regard as likely to cause death or great bodily harm.

For that reason, the evidence was insufficient to support the finding that J.C.’s action of-throwing the smoke bomb constituted culpable negligence. We therefore reverse the order of delinquency and its resultant withhold of adjudication and juvenile probation order.

Reversed.

LaROSE, C.J., and VILLANTI, J. Concur.

SALARIO, J., Concurs with opinion.

SALARIO, Judge,

Concurring.

I entirely agree that the State failed to prove what Azima requires: a conscious act that a reasonable person would know is likely to cause death or great bodily harm. I have serious doubts about whether we got it right in Azima, however, and I think that’opinion is ripe for reexamination in an appropriate case.

The “likelihood of death or great bodily harm” requirement that Azima, 480 So.2d at 187, reads into the statutory element of culpable negligence seems decidedly at odds with the text of section 784.05(1)., In essence, Azima creates a requirement that the defendant’s negligent conduct expose another to death or great bodily harm in order to qualify as culpable negligence. Put differently, to say that section 784.05(1) requires that the defendant’s conduct create a likelihood of death or great bodily harm is in effect to say that the defendant’s conduct must have been of a type that exposes another person to that result.

That interpretation of section 784.05(1), however, does .not look anything like the • statute the legislature actually wrote. The statute' itself criminalizes culpable negligence that “exposes another to personal injury.” Id. By the statute’s unambiguous terms, then, the exposure that the defendant’s conduct must create is one of “personal injury” and not one of “death or great bodily harm.” The distinction is significant. ■:

Personal injury, of course, can refer to any injury to the person, whether something severe like the loss of a limb or something minor like a bruise. See Personal Injury, Black’s Law Dictionary (Rev. 4th ed. 1968) (defining “personal injury” as “[a] hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation”). The concept of “death or great bodily harm,” however, is much narrower. Death means death. And great bodily harm reaches only severe injuries to the person, not more moderate or slight injuries that, would nonetheless be embraced by the term “personal injury.” See Coronado v. State, 654 So.2d 1267, 1270, (Fla. 2d DCA 1996) (interpreting the term “great bodily harm” in the aggravated battery statute and holding that “[gjreat bodily harm defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery” (quoting Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974))). By interpreting the term “culpable negligence” to reach only such conduct as is likely to cause death or great bodily harm, Azima excludes from the scope of section 784.05(1) other conduct that may be wanton or reckless but that exposes others only to less morbid types of harm that would naturally be embraced by the term “personal injury” but not by the concept of “great bodily harm.” Azima’s interpretation of the term “culpable negligence” as requiring a likelihood of death or great bodily harm thus reduces the scope of section 784.05(1) to something much smaller than its plain language provides.' That, to my mind, is a problem. See State v. Riley, 698 So.2d 374, 376 (Fla. 2d DCA 1997) (holding that when statutory terms are unambiguous, “we may not rewrite them by judicial construction”).

The legal support Azima offers for this result seems pretty flimsy, consisting only of a quotation from our decision in Tsavaris, 414 So.2d at 1088. Tsavaris, however, did not involve section 784.05(1). It was a manslaughter case, and the manslaughter statute criminalizes “[t]he killing of a human being by the act, procurement, or culpable negligence of another.” § 782.07(1), Fla. Stat. (2016). Because the end result of manslaughter is the death of a-human being, culpable negligence of the type involved in a manslaughter case by definition involves conduct likely to cause death or great bodily harm.' But the statutory element of death under the manslaughter statute exists separately from the additional element of culpable negligence, which speaks to state of mind underlying the defendant’s conduct. See Dominique v. State, 435 So.2d 974, 974 (Fla. 3d DCA 1983). It thus does not follow, as Azima apparently assumed, that the culpable negligence involved in a prosecution for a felony that requires the death of a person must be identical to the culpable negligence involved in a prosecution for a second-degree misdemeanor that Requires only exposure to personal injury.

On the contrary, the jury instructions for the two offenses demonstrate the opposite. The definition of culpable negligence in the manslaughter instruction requires a jury to find that the defendant knew or should have -known that his conduct was likely to cause death or great bodily injury, while the instruction for culpable negligence offenses under section 784.05 contains no such requirement, Compare Fla. Std. Jury Instr. (Crim.) 7.7 (manslaughter), with Fla. Std. Jury Instr.-(Crim.) 8.9 (culpable negligence);- see also In re Standard Jury Instructions Criminal Cases, 477 So.2d 985 (Fla. 1985) (expressly. amending the definition of the term “culpable negligence” in the manslaughter in-, struction to reflect a difference from the instructional definition of the term under section 784.05, as reflected by both definitions’ current forms). This case involved a bench trial, and the jury instructions thus did not come into play. But the difference in the way the two offenses are treated for purposes of instructing a jury goes to show that relying on a manslaughter case to hold that section 784.05(1) requires a likelihood of death or great bodily harm is comparing apples to oranges. Our opinion in Azima contains no indication that the differences between the two offenses were considered.

Azima’s decision to graft onto section 784.05(1) the requirement of the offense of manslaughter that the defendant’s conduct be of a type likely to cause death or great bodily harm also seems at odds with what the supreme court has said about the statute. In Greene, 348 So.2d 3, the court upheld section 784.05 against a constitutional vagueness challenge. It explained that “the degree of negligence required to sustain imprisonment should be at least as high as that required for the imposition of punitive damages in a civil action.” Id. at 4 (quoting Russ v. State, 140 Pla. 217,191 So. 296, 298 (1939)). It described the punitive damages standard as requiring “a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons,” or “that entire want of care which would raise the presumption of indifference to consequences,” or “such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public,” or “that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.” Id. (quoting Russ, 191 So. at 298). Greene then held that “reckless indifference or grossly careless disregard of the safety of others is necessary to prove ‘culpable negligence.’ ” 348 So.2d at 4. The supreme court did not say that that this requires a likelihood of death or great bodily harm.

One might argue that the supreme court has said that “the required level of negligence for punitive damages is equivalent to the conduct involved in criminal manslaughter,” see Valladares v. Bank of Am. Corp., 197 So.3d 1, 11 (Fla. 2016), and thus that the manslaughter requirement of conduct likely to cause death or great bodily harm is also a punitive damages requirement and, by logical extension, a requirement of section 784.05(1) as well. But there is no case—at least that I have been able to find—that says a likelihood of 'death or great bodily harm is required before a plaintiff can recover punitive damages. On the contrary, we award punitive damages in cases where the defendant’s conduct creates no risk to life or limb at all. See, e.g., Bailey v. St. Louis, 196 So.3d 375, 382 (Fla. 2d DCA 2016) (reversing the trial court’s decision not to award punitive damages in a tort case based on economic injuries to a business where the trial court’s liability findings established “wanton intentionality, exaggerated recklessness, or such an extreme degree of negligence as to parallel an intentional and reprehensible act” (quoting Am. Cyanamid Co. v. Roy, 498 So.2d 859, 861 (Fla. 1986))). It thus seems unlikely that the supreme court’s analogy to the state of mind required for criminal manslaughter in describing the state of mind required for punitive damages entails an understanding that punitive damages requires conduct creating a likelihood of death or great bodily harm. And this may be why Greene’s reference to the punitive damages standard in describing the state of mind necessary to sustain a conviction under section 784.05 contains no mention that a likelihood of death or great bodily harm is essential either to the award of punitive damages or, by extension, to the proof of the offense of culpable negligence.

In the final analysis, proof of culpable negligence under section 784.05(1) seems to require only that which Greene says it requires—a state of mind evincing extreme recklessness, wantonness, indifference to consequences, or reckless indifference to the rights of others. I do not doubt that conduct that meets this standard correlates highly with conduct creating a likelihood of death or great bodily harm. But the statute requires only culpable negligence creating an exposure to personal injury, and requiring proof of a likelihood of death or great bodily harm imports into the statute a requirement it does not appear to contain. This interpretative problem deserves our attention because it potentially reaches beyond section 784.05(1) to other statutes that also require proof of culpable negligence and that do not by their terms require a likelihood of death or great bodily harm. See, e.g., § 784.05(2) (criminalizing culpable negligence that inflicts actual personal injury on another); Arnold v. State, 755 So.2d 796, 798 (Fla. 2d DCA 2000) (quoting Azima’s standard in interpreting section 827.03(3)(c), Florida Statutes (1997), which applies—then and in current form, § 827.03(2)(d), Fla. Stat. (2017)—when a person “willfully or by culpable negligence neglects a child without causing great bodily harm”).

So I think we should -reevaluate Azima in an appropriate case. I do hope, however, that the appropriate case involves facts a little more deserving of prosecution than what appears from our record to be little (if anything) more than a preteen boy’s careless exuberance with a smoke bomb around the Fourth of July.

      . The version of section 784.05(1) criminalizing culpable negligence without injury was adopted in 1974, although it appears as though a statute criminalizing culpable negligence that actually resulted in personal injury predated that. Compare § 784.05, Fla. Stat. (1975) (criminalizing certain acts of culpable negligence without regard to actual personal injury), with § 784.05, Fla. Stat. (1961) (requiring actual injury for the criminal act of culpable negligence), I have no reason to believe that tlie term “personal injury” ,had any different meaning when it was first used in these statutes than if did when section 784.05(1) was adopted,

      . But see State v. Simone, 431 So.2d 718, 722 (Fla. 3d DCA 1983) (determining that culpable negligence is not a lesser included offense of manslaughter and reasoning that “the Legislature intended the culpable negligence statute ... to punish acts of the same character as those covered by the offense of manslaughter by culpable negligence ... but which acts do not result in the death of the victim”).

      . Section 784.05 contains three offenses. Subsection (1), the provision at issue here, makes culpable negligence exposing another to personal injury a second-degree misdemeanor. Subsection (2) makes culpable negligence re-suiting in actual injury to another a first-degree misdemeanor. And subsection (3) makes any violation of subsection (1) involving leaving a loaded firearm within the reach or easy access of a minor a third-degree felony, if the minor uses the firearm to inflict injury or death on himself or another. The felony categorization of the firearm offense in subsection (3)—which requires use of a firearm resulting in injury or death—may serve as a contextual indicator, if one is needed, that the term “culpable negligence” as used in subsections (1) and (2) does not require a likelihood of death or great bodily harm.

      . Relying on authorities interpreting statutes that involve death or great bodily harm as an element, the First District has also held that section 784.05(1) requires a likelihood of death or great bodily harm. See Kish, 145 So.3d at 228; Carrin v. State, 875 So.2d 719, 720-21 (Fla. 1st DCA 2004), quashed on other grounds, 978 So.2d 115 (Fla. 2008).

      . Russ was a manslaughter case, but it said nothing about a requirement of death or great bodily harm.

      . I note that since Greene was decided, the legislature has specified the state of mind required for an award of punitive damages in a civil case. See § 768.72(2), Fla. Stat. (2016). For purposes of my present argument that Azima’s death-or-great-bodily-harm requirement appears to be legally unfounded, any difference between that statute and the deci-sional law that preceded it is not material.


author: CRENSHAW, Judge.

text:
    Eilidh PRICE, Appellant, v. Grant PRICE, Appellee.
    Case No. 2D16-5414
    District Court of Appeal of Florida, Second District.
    Opinion filed January 5, 2018
    Mark C. Rutecki of Mark Rutecki & Associates, P.A., Celebration, for Appellant.
    Kenneth 'A. Wiggins of Law Offices of Kenneth A. Wiggins, Bradenton, for Ap-pellee.
   CRENSHAW, Judge.

The wife appeals a final judgment of dissolution raising several challenges to the trial court’s equitable distribution; we find merit in only one. Because the trial court made no findings regarding certain items .of the parties’ personal property, we reverse.

The wife specifically takes issue with items identified as furniture, furnishings, a hot tub, and electronic entertainment equipment. These items are listed as assets on the parties’ financial affidavits contained in the record. At the final hearing, the trial court noted that it received the husband’s two financial affidavits as evidence during the trial and that the husband testified that the affidavits “are true and correct as he sits here. And he gave testimony as to corroborate the values within the financial affidavit.”

Despite the admission of testimonial and documentary evidence regarding these assets, the trial court made no findings regarding whether they were marital or not. This constitutes reversible' error. See, e.g., Prest v. Tracy, 749 So.2d 538, 539 (Fla. 2d DCA 2000) (“The trial court’s failure to identify and separate- the nonmarital assets from the marital assets prior to distribution constitutes reversible error.”). The husband’s reliance on Esaw v. Esaw, 965 So.2d 1261, 1264-65 (Fla. 2d DCA 2007), is misplaced because here, unlike in Esaw, the- wife presented a sufficient record demonstrating the error where she provided a transcript of the final hearing containing the trial court’s ruling. Because any potential distribution of these assets will affect the current equitable distribution scheme, reversal of the entire scheme is appropriate. See, e.g., Fotinos v. Fotinos, 74 So.3d 142, 143 (Fla. 2d DCA 2011) (“Accordingly, we reverse that portion of the final judgment distributing the parties’ marital assets. On remand, consistent with this opinion, the trial court shall make specific findings that support the equitable distribution scheme.”).

Accordingly, we reverse the portion of the final judgment dealing with equitable distribution and remand for the trial court to make the findings required by section 61.075, Florida Statutes (2015). We affirm the final judgment in all other respects.

Affirmed in part; reversed in part; remanded. ■

KHOUZAM and SALARIO, JJ., Concur.