author: LAMBERT, J.

text:
    Angel Luis SANTIAGO, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-758
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    James S. Purdy, Public Defender, and Glendon G. Gordon, Jr, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Angel Santiago challenges his sentence imposed by the trial court following a jury trial at which he was convicted of burglary of a dwelling with an assault or battery. The sole issue raised in this direct appeal is whether the trial court erred in denying Santiago’s Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error alleging that the written judgment and sentence conflicted with the court’s oral pronouncement of sentence. For the following reasons, we affirm.

The transcript of the sentencing hearing reflects that the trial court sentenced Santiago to serve 48.075 months in prison, specifically stating that it would be “nonconsecutive to any other sentences you may be serving.” The written sentencing documents provided, however, that Santiago’s sentence would run consecutively to any other sentence being served. Santiago thereafter filed his rule 3.800(b)(2) motion, arguing that the written sentence is erroneous and illegal because the court’s oral pronouncement of the “nonconsecutive” sentence controls over the written sentence. Following a hearing, the trial court denied Santiago’s motion, finding that the transcript was in error and that the written judgment and sentence is correct and complies with the court’s oral pronouncement.

“Generally, courts have held that a written order must conform to the oral pronouncement ... because the written sentence is usually just a record of the actual sentence required to be pronounced in open court.” State v. Akins, 69 So.3d 261, 269 (Fla. 2011) (quoting Justice v. State, 674 So.2d 123, 125 (Fla. 1996)). Thus, “when there is a discrepancy between the written sentence and ‘the oral pronouncement, the oral pronouncement prevails.’ ” Id. (quoting Justice, 674 So.2d at 125). Typically, the parties will agree that where a discrepancy exists between the oral pronouncement and the written sentence, the written judgment and sentence must be corrected. However, where, as here, the State does not concede error, the “conflict between the oral pronouncement and the written order requires a factual resolution by the trial court.” Enchautegui v. State, 749 So.2d 550, 551 (Fla. 2d DCA 2000) (citing Tory v. State, 686 So.2d 689 (Fla. 4th DCA 1996)); accord Manual v. State, 547 So.2d 726 (Fla. 2d DCA 1989) (holding that where the written judgment and sentence do not conform to the oral pronouncement, on remand, the State may attempt to establish that the error was caused by the court reporter).

We find that the trial court properly addressed the discrepancy before it. In this case, the court reporter filed an affidavit subsequent to the hearing, correcting the transcript to read that the trial court did orally pronounce that Santiago’s sentence would run consecutively to any other active sentence. See Duncan v. State, 59 So.3d 1197, 1199 (Fla. 5th DCA 2011) (holding that “[i]f the trial court finds after appropriate investigation that the transcript of the digital recording of the proceedings was incorrect, then a correction to the transcript should be created”).

Accordingly, we affirm Santiago’s conviction and sentence.

AFFIRMED.

COHEN, C.J., and ORFINGER, J., concur.

      . A transcript of this hearing is not contained in our record.

      . Prior to the filing of the reply brief, we granted Santiago’s counsel’s motion to further supplement the appellate record with the disc of the actual audio recording of the trial court’s oral pronouncement of sentence. In his reply brief, counsel represented that he reviewed the audio recording of the pronouncement of sentence and conceded that the trial court pronounced that Santiago’s sentence would, in fact, run consecutively to any other active sentence. We appreciate counsel's candor.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason Scott DOWNS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3535
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    Rehearing Denied October 9, 2017

      Jason S. Downs, Melbourne, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jason Downs was charged with showing obscene material to a minor (count one), forcing or enticing a minor to commit a lewd or lascivious act (count two), and knowingly committing a lewd or lascivious act in the presence of a minor (count three). The evidence against Downs consisted of the child victim’s allegations of what occurred while Down's was babysitting the victim. Downs was acquitted of count one, but he was convicted of counts two and three. His convictions were affirmed on direct appeal. Downs v. State, 823 So.2d 789 (Fla. 5th DCA 2002).

Downs now appeals from the denial of his motion for postconviction relief timely filed pursuant to Florida Rule of Criminal Procedure 3.850. Downs’s motion raised four grounds of ineffective assistance of his trial counsel: (1) counsel’s failure to assert a defense theory; (2) counsel’s failure to investigate or call exculpatory witnesses; (3) counsel’s advice to reject a favorable plea offer; and (4) counsel’s refusal to allow Downs to testify on his-own behalf. The postconviction court summarily denied grounds one-and two, and denied grounds three and. four after an evidentiary hearing. Because the record attachments do not conclusively refute the claims made in grounds one and two, we reverse and remand for an evidentiary hearing or for record .attachments conclusively refuting those claims. We affirm the denial of grounds three and four without further discussion, .

■ In ground one of his motion, Downs argued that his trial counsel never interviewed him or asked for his version of events, did not interview or investigate the State’s witnesses, and did not present a defense theory at trial. Downs claimed that counsel’s solé strategy “was to preserve the opportunity to twice speak in closing arguments, the" so-called argument ‘sandwich.’” Downs relies on Cole v. State, 700 So.2d 33 (Fla. 5th DCA 1997), in which this Court disapproved of the same trial strategy and found that counsel’s performance was per se deficient.

The postconviction court noted that Downs’s counsel told him that the trial strategy “was to not call any witnesses for the defense and to not perform any sort of pretrial investigation,” but Downs retained him anyway. The court found that counsel pursued the defense that the victim fabricated the allegations to gain his mother’s attention. The court found that although counsel did not depose or investigate the State’s witnesses, counsel was aware of their statements prior to trial based on the child victim hearsay hearing and “vigorously argued against the admissibility of those hearsay statements.” The court also found that counsel effectively cross-examined the State’s witnesses and noted - the lack of physical evidence against Downs. Counsel also successfully moved to exclude a videotaped interview with the victim, obtained a judgment of acquittal on count one, and secured a downward departure, youthful offender sentence and a withhold of adjudication. Thus, based on the totality of the representation, the court summarily denied this claim, finding that Downs failed to demonstrate prejudice.

As an initial matter, “[a] client’s acquiescence in trial counsel’s conduct does not necessarily insulate the lawyer’s performance from judicial review in a post-conviction proceeding.” Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999). Thus, the postconviction court’s finding that Downs knew about counsel’s trial strategy and “nevertheless retained him for representation” is unavailing. In addition, the record attachments do not conclusively refute Downs’s claim that counsel pursued a blanket trial strategy and failed to interview or depose the State’s witnesses. The court acknowledged that Downs’s counsel did not investigate or depose the State’s witnesses but concluded that counsel effectively cross-examined the witnesses and noted the lack of physical evidence against Downs. However, these findings do not refute Downs’s claim that his counsel failed to investigate his defense theory that he could not have committed the crimes. Therefore, we reverse and remand ground one either for attachment of records conclusively refuting this claim or for an evidentiary hearing.

In ground two, Downs alleged ineffective assistance of trial counsel for failing to investigate, interview, or depose any defense witnesses. Specifically, Downs claimed that his trial counsel should have deposed his parents and his prior girlfriend, all of whom would have corroborated his defense that he was never alone with the victim. Downs also argued that counsel was ineffective for failing to depose or investigate the victim’s sister. He argued that he was prejudiced by this failure because counsel was unable to corroborate his defense theory. Thus, he claimed that because of trial counsel’s deficiency, he was found guilty of crimes that he did not commit.

“[F]ailure to investigate or call an exculpatory witness ‘presents a prima facie showing of entitlement to relief, subject to rebuttal by evidence from the record or testimony at an evidentiary hearing.’” Honors v. State, 752 So.2d 1234, 1235-36 (Fla. 2d DCA 2000) (quoting Prieto v. State, 573 So.2d 398, 399 (Fla. 2d DCA 1991)). Downs alleged that the victim’s sister was always present when he was babysitting. In denying this claim, the court relied on the victim’s mother’s testimony that her daughter was at a school dance when the incident occurred, but the court also found in a different portion of its order that a detective testified that the victim’s sister was in the home at the time of the incident. Downs’s motion raises a facially sufficient claim by alleging that counsel was deficient in failing to investigate, depose, or call the victim’s sister as a witness, and that he was prejudiced by such failure because that testimony could have corroborated his defense theory that he was never alone with the victim and could not have committed the crimes as alleged.

In addition, Downs also claims that his former girlfriend “was always present when [he] was caring for the children.” He claimed that she would have corroborated his defense that he was never alone with the victim, and therefore he had no opportunity to commit the crimes. Again, the postconviction court relied on the victim’s mother’s testimony in denying this claim. However, the mother’s testimony does not refute Downs’s allegation that the girlfriend could have provided exculpatory testimony, and that Downs’s trial counsel was deficient in failing to investigate this potential witness. Because this facially sufficient claim was not refuted by the records attached to the postconviction court’s order, summary denial of ground two was improper. See Santos v. State, 152 So.3d 817, 819 (Fla. 5th DCA 2014) (“The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant’s guilt. Although defense counsel is entitled to broad deference regarding trial strategy, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.” (citations omitted)); Honors, 752 So.2d at 1235-36 (“The failure to call a witness who could have provided exculpatory evidence constitutes ineffective assistance of counsel if the testimony may have cast doubt on the defendant’s guilt and the defendant states the witness’s name, the substance of the testimony, and how the omission of that testimony prejudiced the outcome of the trial.”). Therefore, we reverse the summary denial of grounds one and two and remand for the postconviction court either to attach records conclusively refuting these claims or to hold an eviden-tiary hearing.

AFFIRMED IN PART, REVERSED IN PART; AND REMANDED.

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

      . In 2014, this Court reversed the summary denial of Downs's petition to file a belated motion for postconviction relief, finding it was timely filed pursuant to the prospective application of rule 3.850(b)(3). Downs v. State, 135 So.3d 521 (Fla. 5th DCA 2014). The postconviction court subsequently granted the petition,

      . The "sandwich” argument was the defense’s ability to give first and last closing argument, if the defense presented no evidence; the defense retained the "sandwich” argument if the defense only presented the testimony of the defendant. This process was delineated in Florida Rule of Criminal Procedure 3.250, which was in effect at the time of Downs’s trial; the Florida Supreme Court subsequently adopted Florida Rule of Criminal Procedure 3.381, “confirming that the State is entitled to opening and rebuttal closing arguments even if the defense presents no case-in-chief.” Beasley v. State, 18 So.3d 473, 492 n.5 (Fla. 2009) (citing In re Amends. to Fla. Rules of Crim. Proc.-Final Arguments, 957 So.2d 1164, 1166-67 (Fla. 2007)).

      .The attorney in Cole was the same attorney • who represented Downs during his trial. In Cole, this Court noted, that counsel "had a blanket policy regarding first and last closing argument without examining the circumstances and potential defenses of each case.” Cole, 700 So.2d at 36.


text:
    STATE of Florida, Appellant, v. Mundegerick MITCHUM, Appellee.
    Case Nos. 5D16-3214, 5D16-3215, 5D16-3217, 5D16-3218, 5D16-3219
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ali Lee Hansen, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals the trial court’s, order dismissing the violation of probation charges against Mundegerick Mitchum in five separate cases. We reverse.

Between March 13, 2001, and March 17, 2001, Mitchum participated in several armed robberies and an armed carjacking. In June 2002, Mitchum pleaded nolo con-tendere to robbery with a firearm in four of the cases and carjacking with a firearm in the remaining case. Mitchum was sentenced to fifteen years’ incarceration in the Department of Corrections followed by fifteen years’ probation. The probation orders in all five cases required that Mitch-um refrain from violating any law and stated that “[a] conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.”

Since his release in July 2014, Mitchum has been arrested for operating a motor vehicle without a valid driver’s license and for three incidents of domestic violence. Each of these arrests resulted in three separate sets ■ of violation of probation charges in all of the five cases. All of these violation of probation charges were later dismissed by the trial court. However, the-State has only appealed the dismissals arising from Mitchum’s August 7, 2016 arrest for domestic violence battery.

Before the hearing on the violations, the State nolle 'prossed' the criminal charge that arose out of Mitchum’s August 7,2016 arrest for domestic Violence. Consequently, when the' hearing took place, Mitchum’s counsel moved, ore tenus, to dismiss the violation of probation based on the State having dropped the criminal charge in the underlying doméstic battery case. The State objected, explaining that it wanted the opportunity to try the violation, noting that this was Mitchum’s third act of domestic violence since his release from prison in 2014. The trial court ultimately granted Mitchum’s motion and dismissed the violation of probation charges in all five cases.

The State argues that the trial court erred in granting the motion to dismiss because its decision not to prosecute the criminal domestic battery charge does not preclude it from pursuing a probation violation based on the same offense. We agree.

When the State drops a criminal charge, this is not an acquittal and will not prevent future prosecution if this happens before jeopardy attaches. Gonzales v. State, 780 So.2d 266, 267 (Fla. 4th DCA 2001); State v. Jenkins, 762 So.2d 535, 536 (Fla. 4th DCA 2000); Morris v. State, 727 So.2d 975, 976 (Fla. 5th DCA 1999). In Jenkins, the Fourth District explained this concept as follows:

A nolle prosequi only means that the state is not prepared to go forwárd with the prosecution of the criminal charge. At most, it conveys that the state did not have sufficient evidence to meet its burden of proving guilt beyond a reasonable doubt.

762 So.2d at 536. In contrast, the State only has to prove a' violation of probation by a preponderance of the evidence, which is a lesser standard than what is required to prove the criminal charge. Id. (citing Miller v. State, 661 So.2d 353, 354 (Fla. 4th DCA 1995)). As such, the State may very well have sufficient evidence to' meet this lesser burden. See id.

Because the State’s decision to nolle pros the domestic battery charge does not bar it from pursuing the violation of probation charges, the trial court’s rulings on the motion to dismiss were erroneous. See id. We, therefore, reverse the orders under review and remand for further proceedings. See id.

REVERSED AND REMANDED. '

BERGER, LAMBERT and' EDWARDS, JJ., concur.

      . The violation of probation charges in the five cases contain the same allegations and are based on the same facts.

      . The trial court held two short hearings on these cases, After the first hearing, the trial court dismissed the violation of probation charge in case number 2001-CF-005127-A-O. Because the trial court did not have the records for the other four cases in front of it at the time, it deferred acting on the violation of probation charges in those case.s until the following day. After the second hearing, the trial court dismissed the violations in case numbers 2001-CF-010130-A-0, 2001-CF-.008721-A-O, 2002-CF-000138-A-O, and 2002-CF-00013 9-A-O,

      . Although the trial court did not explain its reasoning for dismissing the violations in detail, Mitchum’s motion .to dismiss was based on the State’s decision not to proceed with the prosecution of the criminal domestic battery charge.

      . Mitchúm’s argument that the State did not preserve this issue for appeal is without merit, The State objected to the dismissal of the probation violation charges at both hearings and stated that it wanted the opportunity to bring the charges to trial even though it had declined to prosecute the August 7, 2016 domestic battery case. This was enough, in this particular case, to preserve the issue for appellate review. Mitchum’s “tipsy cpachman” argument that the State failed to present a prima facie case is also without merit because Mitchum’s ore tenus motion to dismiss did not comply - with Florida Rule of Criminal Procedure 3.190(a), (c). See State v. Ochoa, 576 So.2d 854, 859 (Fla. 3d DCA 1991) (“The court may not dismiss an information on the basis of a finding that the evidence is insufficient to support it, in' the absence of a sworn motion to dismiss under Rule 3.190(c)(4) .,., ” (citing State v. Brooks, 388 So.2d 1291, 1292 (Fla. 3d DCA 1980))); State v. Hernandez, 573 So.2d 1037, 1037 (Fla. 3d DCA 1991) (citing State v. Adderly, 411 So.2d 981, 982 (Fla. 3d DCA 1982)).


text:
    Samuel RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1007
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017.
    Samuel Rivera, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   PER CURIAM.

On July 5, 2017, this Court issued an order granting the State of Florida’s motion to dismiss Appellant Samuel Rivera’s “Notice for Belated Appeal Nunc Pro Tunc Motion,” which had sought to advance Rivera’s continuing and repetitive efforts to overturn his 1987 convictions for first degree murder and armed robbery. Contained within the Court’s order was an order to show cause why Rivera should not be prohibited from filing with this Court any pro se appeals, petitions, motions, or other proceedings related to his criminal sentencing in circuit court case number 85-25037.

Rivera’s August 4, 2017 response to our show cause order introduces no new argument or information for our consideration. We conclude that Rivera has not demonstrated good cause to justify further pleadings with this Court, absent the participation of an attorney to represent him.

The access to courts provision of the Florida Constitution—Article I, section 21—provides an avenue for an incarcerated person in Florida to challenge the legal basis of his or her incarceration; however, this constitutional right may be forfeited if that person abuses the judicial process. Jimenez v. State, 196 So.3d 499, 501 (Fla. 3d DCA 2016). Our responsibility is to balance the incarcerated person’s right to access to courts with the need of this Court to devote its finite resources to legitimate appeals and petitions. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Accordingly, after notice in the form of an order to show cause and an opportunity for the incarcerated person to respond, a court may prevent further filings. Id.; see also Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

Because we conclude that Rivera has not demonstrated good cause to justify further pro se filings of appeals, petitions, motions, or other proceedings with this Court, we direct the Clerk of the Third District Court of Appeal to refuse to accept from Rivera further pro se filings related to circuit court case number 85-25037; provided, however, that the Clerk may accept filings related to case ilumber 85-25037 if such filings have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

Any such further and unauthorized pro se filings by Rivera will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it for disciplinary action, pursuant to section 944.279(1) of the Florida Statutes.

Order issued.


author: COHEN, C.J.

text:
    Amanda K. JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-619
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Rehearing and Rehearing En Banc Denied October 9, 2017

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, C.J.

Amanda Jackson appeals the denial of her motion for a new trial, which was entered after she was convicted of leaving the scene of a crash involving death. On appeal, Ms. Jackson raises a number of issues, one of which requires reversal. She ■argues that the trial court erred in failing to hold a Richardson hearing after the State introduced an admission into evidence that was not disclosed during discovery. We agree and therefore reverse and remand for a new trial.

The facts of this case are tragic. In 2010, a one-year-old child was struck and killed by a vehicle while crawling in the street. The child lived in the Silver Lakes Trailer Park with his mother. Ms. Jackson was the manager of the trailer park and lived there with her husband, Austin Jackson. Law enforcement determined that the vehicle involved was a red pickup truck but were unable to either locate the truck or establish the identity of the driver.

More than two years later, the Putnam County Sheriffs Department received a tip that implicated Ms. Jackson.as the driver of the pickup truck that had struck and killed the child. As a result, officers interviewed; Ms. Jackson, The interview took place at the Sheriffs Office and lasted over two hours. For the first hour and a half, Ms. Jackson either denied involvement or stated that she could not remember what occurred that day. After the detective interviewing Ms. Jackson suggested that witnesses had identified her as the driver, she changed her story and confessed to running over the child. No such witnesses existed.

Ms. Jackson’s confession was admitted into evidence and published to the jury. Jackson’s central.defense theory was that the confession had been obtained improperly: that she was susceptible to coercion and that the resulting confession was unreliable. As part of that defense, Ms. Jackson called Dr. Gregory DeClue as a witness. Dr. DeClue is a board-certified forensic psychologist who spent much of his career working for law enforcement agencies and training officers how to conduct and ensure the integrity of interrogations. Dr. DeClue was highly critical' of the techniques used during the course of Ms. Jackson’s interrogation and suggested that the techniques employed were susceptible to securing a false confession.

On rebuttal, the State called Dr. William Meadows, who is also a forensic psychologist. Dr. Meadows conducted an interview with Ms. Jackson in preparation for his trial testimony. Ms. Jackson’s counsel was present for that evaluation.' The State asked Dr. Meadows whether Ms. Jackson stated that she felt pressured to confess, and Dr. Meadows responded, “She—she did indicate that she felt pressured, and she made an interesting statement when I asked her about that. She said -she felt pressured because the detective knew that [she] had done it.” The defense immediately objected, arguing that Ms. Jackson did not make that .statement and Dr. Meadows mischaracterized what she said during the evaluation. The defense then moved for a mistrial, claiming that Dr.- Meadows’s testimony amounted to the introduction of.an admission by Ms. Jackson, which the State had not disclosed to the defense during discovery. The trial court denied Ms. Jackson’s motion for a mistrial, and she was subsequently convicted as charged.

Ms. Jackson argues that the trial court erred in failing to conduct a Richardson hearing to address the defense’s claim that the admission entered through Dr. Meadows’s testimony constituted a discovery violation. While Ms. Jackson’s counsel did not specifically request such a hearing, the contemporaneous objection and motion for mistrial were sufficient to apprise the trial court of the necessity of conducting such an inquiry. See Rath v. State, 627 So.2d 24, 25 (Fla. 5th DCA 1993).

The content of Dr. Meadows’s testimony about Ms. Jackson’s statement during the interview was the equivalent of an admission of guilt by Ms. Jackson. The presence of Ms. Jackson’s attorney during the interview with Dr. Meadows did not negate the necessity for a, Richardson hearing—defense counsel argued that Ms. Jackson never made any such admission and that Dr. Meadows mischaracterized her statement. The State did not provide the statement to the defense either in its response to the demand for discovery or in a written report from Dr. Meadows. The introduction of such a previously undisclosed admission, particularly when the validity of a confession to law enforcement was the..crux of the defense, cannot be minimized. Therefore, the trial court erred in failing to hold ■ a Richardson .hearing. Due to the significant and prejudicial nature of the testimony, we cannot conclude that the trial court’s failure to conduct such an inquiry was harmless error in this case. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED FOR A NEW TRIAL.

WALLIS and LAMBERT, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (1971) (requiring trial court to conduct hearing when it learns of discovery violation to determine whether violation was (1) willful; (2) substantial; and (3) prejudicial to opposing party's trial preparation).

      . Mr. Jackson owned a red pickup truck. Testimony was- in dispute as to whether Mr. Jackson's truck was examined by law enforcement on the day of the incident, Mr. Jackson claimed that it was; the law enforcement officers suggested otherwise. There is no dispute that the Jackson vehicle was present at the trailer park during the course of the investigation, and no explanation was offered as to why it would not have been examined. Additionally, there was evidence presented that prior to the incident, Mr,. Jackson had been negotiating a deal to swap his truck tires with those of an acquaintance, Billy Fowler. Initially, Mr, Jackson wanted an additional $200 to make the trade. After the incident, however, the two traded the tires without exchanging any money.. Fowler testified that Mr. Jackson appeared eager to get rid of the tires.

      . The State is obligated to disclose- during discovery “the substance of any oral statements made by the defendant.” Fla. R. Crim. . P. 3.220(b)(1)(C). This is a continuing obligation. Fla. R. Crim. P, 3220(j).

      . Because we are reversing for a new trial, we need not address Ms. Jackson's remaining arguments on appeal.


author: SILBERMAN, Judge. LUCAS; Judge,

text:
    Henry MANSFIELD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4325
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Henry Mansfield seeks review of the order revoking his drug offender probation based on a new law violation of sale of a controlled substance. We reverse based on the trial court’s failure to conduct an adequate preliminary Nelson inquiry and a competency hearing. While a reversal on these issues renders Mansfield’s vindictive sentence issue moot, the trial court’s treatment of Mansfield based on their prior acquaintance is troubling. We therefore direct that the proceedings on remand be conducted by a different judge.

1. Preliminary Nelson Inquiry

While he was incarcerated pending the revocation hearing, Mansfield filed a pro se “RequesVGrievance/Appeal Form” in which he stated:

Judge James S. Parker Let you know on the 7-8-15 Frank Ribel don’t work on my case he is frie [sic]. No show Ribel for 9 months I saw Ribel about 4 time pluse [sic] I have not gone to court on my V.O.P I like to know what gonsing [sic] on about it thank you.

Defense counsel construed this as a request to discharge counsel and filed a “Notice of Nelson Faretta Hearing” to have the request considered. At the hearing, it immediately became clear that the court was a long-time acquaintance of Mansfield. The court began the proceedings by asking, “And, Henry, what’s this about you want to represent yourself?” Mansfield replied, “Well, my Nelson, I’ve been able to take—” before he was interrupted by the court.

The proceedings took a strange turn, and the following exchange occurred:

THE COURT: Now I’ve known you all your life.
THE DEFENDANT: Yeah. I know it. I made—
THE COURT: You never did graduate from DeSoto High School, did you? Did you finally graduate?
THE DEFENDANT: Nope.
THE COURT: That’s what I thought.
THE DEFENDANT: I walked down the, you know, walk.
THE COURT: And I remember when you was charged with cattle rustling—
THE DEFENDANT: Now that been a long time ago.
THE COURT: —of Bill DeShawn’s (phonetic) cattle out on—or cow out on Highway 70, right?
THE DEFENDANT: Yeah. But you see defense—
THE COURT: Well, I just remember all those things, Henry.
THE DEFENDANT: If you find that— if you find that too, the caboot (phonetic) didn’t match my gun, if you remember right.
THE COURT: You got what?
THE DEFENDANT: When they took the ballistic test, it was not my gun..
THE COURT: Oh, okay. ■
THE DEFENDANT: But I got (indis--cernible) at any rate.
THE COURT: All right. All right.
THE DEFENDANT: You know,, (indiscernible).
THE COURT: So anyhow, why do you want to represent yourself?

Mansfield replied, “Well, really I don’t. I need somebody to help me. I need to get out. I need to start working.” The court started to address-Mansfield’s dissatisfaction with counsel stating,-“Okay. Mr. Ribel has had you. examined [for competency] and tried to every other way—” But then the court abruptly decided to offer Mansfield a plea.

The court offered Mansfield 38.7 months which was the lowest permissible sentence under the guidelines, Mansfiel'd said he needed to get'out of jail so he could buy a truck. The court said Mansfield was not' getting out of jail. The court told Mansfield that he was subject to a maximum of forty-five years in prison and asked if Mansfield wanted to accept the plea offer.

Mansfield briefly disputed the strength of the evidence against him and then returned to his complaints about trial counsel. Mansfield said, “He said I’ll get (indiscernible). I ain’t telling him nothing. He— you know, he ain’t doing nothing, I want to get my ASFA (phonetic), go get me a good lawyer, on the street, (indiscernible).” The following exchange then occurred:

THE COURT: Well, you got the money to hire a good lawyer?
THE DEFENDANT: Well, my people do or I can (indiscernible).
THE COURT: Okay. When are you going to do that?
-THE DEFENDANT: Well, they’re not going to get- him until I talk to my people. Yes, I can come up and get me a damn good lawyer. But I can’t not sending [sic] my tail in jail for no reason (phonetic),
THE COURT:, Well, you really don’t want to represent yourself now,' do you?
THE DEFENDANT: I can’t represent myself. I ain’t—I ain’t—
THE COURT: Okay.
THE DEFENDANT: —got that much knowledge.
THE COURT: Well, until you hire an attorney then, Mr. Ribel is your only choice. And he’ll do everything in the world for you legally, but some of the things you think is legal, that’s not legal.
THE DEFENDANT: Uh-huh.
THE COURT: We could have a hearing and go from there. So that would be— the next hearing date is when?

Defense counsel responded by saying, “Judge, we’ve been through quite a few things here with Henry.” Counsel said he had Mansfield’s competency evaluated “because to me he seemed to be in denial of some of the things that were obvious on the video” of the controlled buy that formed the basis for the new law violation. Counsel said he had also hired an expert to determine whether the video had been altered. It had not. Counsel said that he and Mansfield “had been fortunate enough” to get an offer from the State of twenty-four months in prison followed by two years of drug offender probation. Based on the circumstances, counsel recommended that Mansfield accept the State’s offer and noted that Mansfield had already served eleven months.

Mansfield said he had served ten months and would accept a "sentence of time served followed by two years of probation. Defense counsel told the court, “Well, anyway, that’s where we are, and that’s how we got here. And when Henry sent us the letter saying he wanted to get new counsel, that’s when we " asked the Court—” The court responded:

Well, he is free to get new counsel if he wants to hire them, but it looks like to me you done a lot of work in this case. You got Henry a good offer, and Henry traditionally has always been in kind of denial about the facts of the case, of any case, he has been involved in. And I think this is Henry’s self-defense, I guess: you can’t convict nobody on mouth-to-mouth evidence.

Counsel told the court that they would lose' the case if they went to a revocation hearing and suggested that Mansfield did -not appreciate that.

Mansfield was getting agitated and responded, “Maybe I can go in front of another judge, ask for another judge, everything.” Mansfield said that the court’s action Of signing his arrest warrant showed that the court believed he was guilty. The court denied this. Mansfield became more.agitated, and the following exchange occurred:

THE DEFENDANT: -Okay. I know you all don’t like me, especially that thing over the (indiscernible) DA.
THE COURT: Nobody-cares—no—
THE DEFENDANT: I "know who he is. He—you know, when he (indiscernible). He got a trial. At the trial, he’ll tell you—
THE COURT: Nobody has—nobody has anything against you, Henry. Nobody has anything—
THE DEFENDANT: You know, he (indiscernible). And he ain’t that smart. But you know what? Some day God is going to say, hey, come to me. You going to have a heart attack. What he going to do? When God call you home saying— God ain’t calling you home. God will send you to hell.
THE COURT: Okay. Sounds good to me. So anyhow—

The court reiterated the State’s offer. Mansfield.reiteratqd that he would accept a sentence of time served followed by two years of probation. The court said it would not impose probation because Mansfield had already violated. Mansfield told the court, “I’m tore, Janies. I’ve been knowing you for years and years and years. I’ve been knowing you for a long time, too many years. I’ve been knowing you....” The court understood that Mansfield was refusing the State’s plea offer and said to counsel, “I’m sorry. I mean, if he is in denial, he is in denial. We’ll just take it from there.”

The next month Mansfield proceeded to the revocation hearing represented by Mr. Ribel. At that hearing, the court found that Mansfield had violated his probation and sentenced him to eight years in prison.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the court set forth a procedure for handling a request to discharge court-appointed counsel. Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004).

The first step in the procedure is the preliminary Nelson inquiry in which the court ascertains whether the defendant unequivocally requests court-appointed counsel’s discharge and the court asks the reason for the request. The answer to the preliminary inquiry determines the next steps. If a reason for the request is court-appointed counsel’s incompetence, then the court must further inquire of the defendant and his counsel to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel. If the reasons for the request do not indicate ineffective assistance of counsel, then no further inquiry is required.

Id. (citations omitted). If there is no need for further inquiry or after such inquiry the court determines there is not reasonable cause to determine that counsel is ineffective, then the court must inform the defendant he or she is not entitled to substitute court-appointed counsel and will have to exercise his or her right to self-representation. Id. Before the eourt may allow a defendant to represent himself or herself, it must conduct a Faretta inquiry to determine that the defendant’s waiver of the right to court-appointed counsel is knowing and intelligent. Id.

The preliminary Nelson inquiry is a critical step in the procedure for handling a request to discharge counsel. Maxwell, 892 So.2d at 1102. “Depending on the answer to the preliminary Nelson inquiry, a complex, multi-faceted combined Nelson, and Faretta hearing could ensue, or the inquiry could end there.” Id. The failure to conduct this preliminary inquiry in response to a defendant’s request to discharge court-appointed counsel is a structural defect that requires reversal as per se error. Id. at 1103. Simply put, the trial court may not remove the possibility of discharging court-appointed counsel for incompetence without giving the defendant a chance to be heard on the issue. Id

In this case, Mansfield filed a document that defense counsel and the court interpreted as a request to discharge counsel. Indeed, at the very beginning of the hearing the court asked Mansfield, “[W]hat’s this about you want to represent yourself?” Even if the court had been uncertain as to whether the request to discharge counsel was unequivocal, the court did not conduct a preliminary Nelson inquiry to determine whether Mansfield’s request was, in fact, unequivocal and did not inquire into the specific reasons for the requested discharge. The court asked Mansfield why he wanted to represent himself without addressing whether substitute court-appointed counsel would be appropriate.

In this way, the trial court improperly removed the possibility of discharging court-appointed counsel for incompetence without giving Mansfield a chance to be heard on the issue. Instead, the court skipped to the part of the Nelson hearing where it informed Mansfield he was not entitled to court-appointed substitute counsel and would have to represent himself. This failure to conduct a preliminary Nelson inquiry was per se error. See Torres v. State, 42 So.3d 910, 913 (Fla. 2d DCA 2010); Milkey v. State, 16 So.3d 172, 176 (Fla. 2d DCA 2009); Maxwell, 892 So.2d at 1103.

The facts of this case are indistinguishable from those in Milkey. There, Milkey appeared for a revocation hearing and told the court, “Your Honor, I’m not really happy with my counsel. Is there anyway—” Milkey, 16 So.3d at 173. The court interrupted by telling Milkey, ‘You can represent yourself if you wish.” Id Defense counsel told the court that a different attorney was representing Milkey on his new law violations. The court replied, “She’s not here. You can have Ms. Chewn-ing or you can represent yourself.” Id. The revocation healing was then conducted with Milkey being represented by Ms. Chewning.

This court reversed based on the trial court’s failure to conduct a preliminary Nelson hearing so that Milkey could “express hi? desire to discharge counsel and explain the reasons for his request. Upon hearing that Milkey was ‘not really happy’ with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of Nelson inquiry was necessary.” Id. at 176. However, the court never gave “Milkey the opportunity to have his desire to discharge counsel ‘come to light.’ ” Id. (quoting Maxwell, 892 So.2d at 1103).

Instead, the trial court either failed to recognize that further inquiry was required or merely assumed that defense counsel was not ineffective. Id. at 176. “[T]he trial court was not permitted to assume that Milkey’s dissatisfaction was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would dispel any notion of counsel’s incompetency.” Id.; see also Torres, 42 So.3d at 913 (“[T]he trial court improperly assumed that Torres’ dissatisfaction with counsel was not based on counsel’s incompetency or that a Nelson hearing, if conducted, would have dispelled any notion of counsel’s incompetency.”).

In this case, as in Milkey, the court refused to allow Mansfield to express his desire to discharge court-appointed counsel and explain the reasons for that request. Instead, the court appeared to assume that defense counsel was not ineffective and focused on the issue of whether Mansfield wanted to represent himself. It is true that defense counsel informed the trial court of some of the actions he had taken on Mansfield’s behalf and the court stated that counsel had “done a lot of work in this case.” However, despite Mansfield’s efforts to do so, he was never given a chance to explain his concerns about counsel’s performance. The same observation made in Torres applies here: “While it is possible that [the. defendant’s] claims would not have warranted a full Nelson inquiry, the record does not clearly establish this fact.” 42 So.3d at 913.

We recognize that Mansfield was being argumentative and had difficulty expressing himself, but this does not relieve the court of its duty.to follow the procedures required by Nelson and Faretta. See Torres, 42 So.3d at 914. Thus, the trial court erred by failing to conduct an adequate preliminary Nelson inquiry.

2. Competency Hearing

The , trial court ordered a competency evaluation in April 2015, and Dr. Visser produced a report concluding that Mansfield was competent to proceed. At the beginning of the revocation hearing in September 2015, the trial court noted that it had received a copy of the report. However, the court did not conduct a competency hearing or even declare that Mansfield was competent to proceed. This was error.

Florida Rule of Criminal Proceduré 3.210(b) requires a trial court that has reasonable grounds to believe a defendant is not competent to proceed to conduct a competency hearing. Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014); Cramer v. State, 213 So.3d 1028, 1029 (Fla. 2d DCA 2017); This rule is mandatory, and the defense cannot waive the requirement of a hearing even if the experts find him or her competent to proceed. Dougherty, 149 So.3d at 678; Cramer, 213 So.3d at 1029. Thus, the trial court erred by failing to conduct a competency hearing.

3. Vindictive Sentence

This issue is rendered moot by our resolution of the first two issues. 'Nonetheless, we are troubled by the court’s treatment of Mansfield based on their prior acquaintance. The court took an overfamiliar and condescending tone with Mansfield and mentioned irrelevant and potentially embarrassing information about Mansfield. Furthermore, the court appeared to assume Mansfield’s guilt by initiating plea negotiations, urging Mansfield to accept a plea offer, and stating that Mansfield’s rejection of the offer showed that he was in denial about the facts of his case. '

Mansfield himself believed that the court thought he was guilty and did not like Mansfield. In fact, at one point Mansfield even suggested he should “go in front of another judge, ask for another judge.” Finally, after conducting a full revocation hearingthe court imposed a sentence that was more than double the 38.7-month sentence- it had offered and four, times the twenty-four-month sentence the State had offered. Simply put, the court’s treatment of Mansfield presents questions regarding its ability to be fair, and impartial in this case.

4. Conclusion

We reverse based on the trial court’s failure to conduct an adequate preliminary Nelson inquiry and a competency hearing. On remand, Mansfield is entitled to a competency hearing before any further proceedings take place. Based on our concerns with the trial court’s impartiality, we direct that all further proceedings be conducted by a different judge.

Reversed and remanded with directions.

CRENSHAW, J., Concurs.

LUCAS, J., Concurs in. part and dissents in part with opinion.

LUCAS; Judge,

Concurring in part and dissenting in part.

I concur with the court’s decision to reverse and remand Mr. Mansfield’s order of revocation because the trial court failed to conduct a competency hearing and render á determination about Mr. Mansfield’s competency to proceed. I also agree that on remand the case ought to be assigned to a different judge. However, I respectfully disagree with the majority’s conclusion that a Nelson hearing was required here because, from, my reading of the record, Mr. Mansfield never madé a “clear. and unequivocal statement” that he wished to discharge' his appointed counsel. See Davis v. State, 136 So.3d 1169, 1209 (Fla. 2014) (“[T]he requirements of Nélson depend upon a clear and unequivocal statement from the criminal defendant that he ■wishes to discharge counsel.” (alteration in original) Logan v. State, 846 So.2d 472, 477 (Fla. 2003))).

The court’s opinion recounts a considerable portion of the meandering (and, yes, at times inappropriate) dialogue that transpired between the presiding judge and Mr. Mansfield in the course of this hearing, a hearing that was precipitated by Mr. Mansfield’s pro se filing, which oscillated between an unarticulated complaint about Mr. Mansfield’s counsel, an observation that Mr. Mansfield had not had his V.O.P. hearing, and a desire “to know what gons-ing [sic] on.” At the hearing, there was a lengthy exchange between Mr. Mansfield, the court, and his appointed counsel, and Mr. Mansfield expressed a panoply of concerns and complaints.

But with respect to the discrete point that would necessitate a Nelson hearing— that is, whether Mr, Mansfield was making a request to discharge his appointed counsel because of some perceived incompetence on his lawyer’s part—I can find nothing in this record but equivocation and inchoate dissatisfaction on Mr. Mansfield’s part: about his lawyer, his predicament in jail, his past, and his judge. There is no unequivocal request to discharge Mr. Ribel’s representation. And when Mr. Mansfield was posed with a question from the court as to why he would want to represent himself, Mr. Mansfield’s reply was that he did not want to represent himself; he was simply unhappy with being incarcerated and unable to work. Collectively, then, I construe Mr. Mansfield’s complaints as nothing more than the “general complaints about defense counsel’s trial strategy” or “dissatisfaction” that the Florida Supreme Court has held, repeatedly, do not warrant a Nelson hearing. See, e.g., Braddy v. State, 219 So.3d 803, 818 (Fla. 2017) (“This Court has consistently found a Nelson hearing unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” (quoting Morrison v. State, 818 So.2d 432, 440 (Fla. 2002))); Davis, 136 So.3d at 1209 (“Accordingly, expressions of disagreement with trial counsel’s strategy or complaints about lack' of communication—as in Davis’s June 1994 letter—do not give cause for a Nelson hearing;”); Logan, 846 So.2d at 477 (“[GJeneralized complaints about court-appointed counsel’s trial strategy or lack of contact or communication with the defendant do not' constitute the kind of unequivocal request to discharge counsel necessary to trigger the requirements of Nelson.”); Morrison v. State, 818 So.2d 432, 441 (Fla. 2002) (holding that although defendant made “several requests to replace his counsel,” since they all centered around dissatisfaction with his counsel’s communications and litigation efforts, a Nelson hearing was not required); Sexton v. State, 775 So.2d 923, 931 (Fla. 2000) (“This Court has consistently found a Nelson hearing unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla. 1997); Gudinas [v. State], 693 So.2d [953,] 962 n.12 (Fla. 1997); Branch v. State, 685 So.2d 1250, 1252 (Fla. 1996).”).

Nor, to my mind, did thé trial court “improperly remove[] the possibility of discharging court-appointed counsel for incompetence without giving Mansfield a chance to be heard on the issue,” as the majority states. Supra. Whatever else may be said about this lengthy, wending conversation in a hearing .before an overly familiar judge, Mr. Mansfield had ample opportunity to speak and express his thoughts. Indeed, he did so repeatedly and freely throughout the entire course of the proceeding.

This case, then, bears little resemblance to Milkey v. State, 16 So.3d 172 (Fla. 2d DCA 2009). In Milkey, the trial court cut a complaining defendant off mid-sentence, and then, without allowing another utterance or sound from that defendant, proceeded to launch into a revocation of probation hearing. From what the Milkey opinion recounts, after the defendant’s stymied complaint about his lawyer, two brief exchanges between defense counsel and the court were all that ensued (one of which, apparently, involved the presiding judge cutting off defense counsel), and then, at the trial court’s direction, the State called its first witness for the revocation proceeding. Under those circumstances, we found error and offered this instruction: “Upon hearing that Milkey was ‘not really happy* with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of [Redacted] Nelson inquiry was necessary.” Id. at 176. But we took care in Milkey to distinguish several decisions that had held a Nelson hearing was not required, because those cases “reflected] some discussion between the trial court and the defendant supporting a conclusion that the defendant’s complaints had nothing to do with allegations of counsel’s incompetence.” Id. at 177. Here, Mr. Mansfield’s dialogue with the circuit court exceeds twelve pages of transcribed proceedings. There was considerable discussion between the defendant and the court about Mr. Mansfield’s various complaints before Mr. Mansfield proceeded to his revocation hearing a month later.

It is hard, then, for me to see how Mr. Mansfield “was never given a chance to explain his concerns about counsel’s performance,” supra, when he so freely expressed so many complaints (including the generalized ones about his lawyer’s efforts) over the course of this hearing. I suspect the majority’s conclusion in this regard may derive more from the tone of the trial court’s interactions with Mr. Mansfield, which, again, were by no means beyond reproof. Still, it is one thing to say this judge may have fallen short in the manner in which he responded to this defendant’s complaints; it is quite another to say he prohibited that defendant from presenting a complaint. In my opinion, the record in this case supports the former conclusion, but not the latter.

Our trial judges require certitude as to when they will be required to convene a Nelson hearing and when they will not. Cf. Causey v. State, 623 So.2d 617, 618 (Fla. 4th DCA 1993) (recognizing that expressions of dissatisfaction with counsel are “a daily occurrence in many trial courts”). For that reason, I respectfully dissent from that part of the court’s holding today.

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

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

      , Mr. Mansfield was represented by regional conflict counsel following the prior sub.stitution of his representation by the public defender's office.


author: ROBERTS, J.

text:
    Hermeen R. JACOBSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1400
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Rehearing Denied October 17, 2017

      Andy Thomas, Public Defender; Laurel Cornell Niles and Brenda L. Roman, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

On appeal, the appellant challenges the denial of her motion to suppress evidence seized after what she claims was an illegal traffic stop. We affirm.

During the suppression hearing, the arresting officer, who had training and experience on how to identify someone who was under the influence, testified that at around 7:22 p.m., he reported to the Azalea Lounge to investigate a potential vehicle accident. When he arrived, he encountered the appellant standing outside of her legally parked vehicle, which was damaged. The officer determined that the damage to the vehicle was preexisting, but observed that the appellant was “extremely intoxicated.” He did not have a basis to arrest the appellant at that time, but warned her that if he saw her driving, she would be arrested for DUI. A friend of the appellant’s came out of the Azalea Lounge and said he would take charge of her, and the two went inside. In the interest of public safety, the officer parked his patrol car across the street in plain view. He observed the appellant walk toward her car on two occasions, but she turned around when she saw the officer’s patrol car. The officer had to leave the area when he was dispatched to another call.

At 8:35 p.m., the officer returned to the area for the sole purpose of checking up on the appellant. As he approached, he saw the appellant’s car pull onto the road. He looked in the car and saw that the appellant was driving, so he followed her briefly. The officer admitted that the appellant was obeying all traffic laws and was not driving erratically. He became concerned when it appeared that she was going to get on the interstate. Knowing her condition, the officer testified that he did not want her on the interstate at those speeds, so he stopped her. The officer admitted that his stop was based on his previous contact with the appellant. He knew that it takes several hours for alcohol to get out of the bloodstream and stated, “There was no human-way possible that she was no longer intoxicated.” Upon stopping the appellant, the officer observed that the appellant was still extremely intoxicated, had slurred speech, red and. glassy eyes, and emitted a strong odor of alcohol. He asked her to perform field sobriety exercises, which she refused. He then placed her under arrest for DUI. The appellant refused to take a breath test. In a search incident to arrest, a baggy of cocaine and a straw were recovered from the appellant’s' pocket.

In her motion to suppress the evidence seized as a result of the traffic stop, she argued that the stop was illegal because she did not break any traffic laws and was- not driving erratically. She further-argued that the stop was unsupported by a founded suspicion of criminal activity, namely because the officer’s observation of her intoxication during the first encounter was not corroborated by any field sobriety exercises. The trial court disagreed and denied the motion to suppress. We affirm.

The officer admitted that the appellant- did not violate any traffic laws to justify the stop. Therefore, the stop had to be based on the officer’s founded suspicion that she was driving under the influence. See Hilton v. State, 961 So.2d 284, 290 (Fla. 2007) (“The United States Supreme Court, has held that stopping a vehicle is permissible under the Fourth Amendment only where there is a reasonable suspicion that either the vehicle or an occupant is subject to seizure for a violation of law.”) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). The totality of the circumstances must be considered in evaluating whether an: officer has a reasonable or well-founded suspicion to justify an investigatory stop. Baden v. State, 174 So.3d 494, 497 (Fla. 4th DCA 2015) (citing Finizio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001)).

Many of the “founded suspicion” cases involve an observation of erratic driving that, while not illegal, -raises concerns for public safety. Here, there was no indication that the appellant was driving erratically or weaving to otherwise justify the stop. The founded suspicion came from the rather unusual circumstance wherein the officer had the opportunity to personally observe that the appellant was extremely intoxicated approximately one hour prior to observing her driving. His training and experience led him to conclude -that it would have been impossible for the appellant to have sobered up within the hour. Thus, the officer’s stop was justified out of his belief that the appellant was impaired and-his concern for the safety of the pub-lie. See Agreda v. State, 152 So.3d 114, 116 (Fla. 2d DCA 2014) (“[A] ‘legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.’ ” (citing State, Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992))); Dep’t of Highway Safety & Motor Vehicles v. Ivey, 73 So.3d 877, 880-81 (Fla. 5th DCA 2011) (“Florida courts have recognized that valid safety concerns can warrant’a brief investigative stop by law enforcement officers to determine whether a driver is intoxicated using a somewhat more relaxed standard than that required for other crimes.”). We reject the appellant’s assertion that the officer’s initial observation of her intoxication should have been corroborated by field sobriety exercises because, at the time of their-first encounter, the appellant was not driving, Based on the totality of the circumstances, the officer had a founded suspicion that the appellant was committing a DUI and was a potential danger to the.public to justify an investigatory stop. Accordingly, the motion to suppress was properly denied.

AFFIRMED.

MAKAR, and JAY, JJ„ CONCUR. ..


author: LAGOA, J.

text:
    The FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, v. TROPICAL TRAILER LEASING, L.L.C., et al., Respondents.
    No. 3D17-1046
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017.

      Marc Peoples, Assistant General Counsel (Tallahassee), for petitioner.
    Akerman LLP, and Gerald B. Cope, Jr., and A. Rodger Traynor, Jr,, for respondents.
    Before LAGOA, FERNANDEZ, and LUCK, JJ. .
   LAGOA, J.

The Florida Department of Transportation (“FDOT”), a non-party to the litigation below, petitions this Court for a writ of certiorari seeking to quash an order compelling it to produce information responsive to an amended subpoena propounded by class plaintiff, Tropical Trailer Leasing, L.L.C. (“Tropical”). Because we find no departure from the essential requirements of the law, we deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

The underlying litigation involves a certified class action brought by class plaintiff, Tropical, against Miami-Dade Expressway Authority (“MDX”). The class action seeks injunctive relief as well as a refund of highway tolls purportedly assessed improperly and paid by class members to MDX. In order to calculate possible damages and identify class members for the “opt-out” notice required by Florida Rule of Civil Procedure 1.220(d)(2), Tropical issued an amended subpoena to FDOT requesting toll data for vehicles having more than two axles, which paid the toll using a prepaid “Toll By Plate” Account. The amended subpoena excluded Sunpass transponder accounts.

FDOT moved to quash the subpoena and asserted that the information sought was protected by section 316.0777, Florida Statutes (2017) (“Automated license plate recognition systems; public records exemption.”). FDOT asserted that production of the requested documents could only be made to law enforcement agencies or individual license plate holders. The trial court denied FDOT’s motion and further ruled that confidentiality would be protected through the entry of a confidentiality order. Specifically, the trial court found that “[a]ny production under the Subpoena is subject to the separate ‘Attorney Eyes Only’ Protective Order.” Moreover, Tropical advised the trial court that it would not seek the names of license plate holders. This petition ensued.

II. ANALYSIS

“‘A writ of certiorari is an extraordinary type of relief that is granted in very limited circumstances.’ To be entitled to certiorari, the petitioner must establish the following three elements: ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ‘The latter requirements constitute irreparable harm, and irreparable harm is a condition precedent to invoking certiorari jurisdiction that should be considered first.’ ” Lee v. Condell, 208 So.3d 253, 256 (Fla. 3d DCA 2016) (citations omitted); see also Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla. 2012) (stating that irreparable harm is a condition precedent to invoking a district court’s certiorari jurisdiction); Nucci v. Target Corp., 162 So.3d 146, 151 (Fla. 4th DCA 2015) (same).

Certiorari jurisdiction is not available to review every erroneous discovery ruling. See Bd. of Trs. of the Internal Improvement Trust Fund, 99 So.3d at 456; Nucci, 162 So.3d at 151. However, “[d]is-covery of information protected by privilege ‘may reasonably cause material injury of an irreparable nature.’ ” Lacaretta Rest. v. Zepeda, 115 So.3d 1091, 1092 (Fla. 1st DCA 2013) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995)). Therefore, “if there has been a departure from the essential requirements of law regarding ... privilege, the harm is indeed irreparable.” Id. at 1092-93.

Here, FDOT argues that the records are confidential, but not privileged. FDOT concedes in its petition that the toll records are subject to civil discovery, and “may be disclosed if the asserted need for the records outweighs the public policy behind keeping the records confidential.”

Pursuant to Florida Rule of Civil Procedure 1.280(b)(1), “[pjarties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action.” We find that the trial court did not depart from the essential requirements of the law, as the information sought in the amended subpoena is directly relevant to Tropical’s case. Moreover, Tropical demonstrated that it possessed a sufficiently compelling interest in the production of the information, and that the trial court took adequate steps to protect the confidentiality of the information. Accordingly, we find no departure from the essential requirements of the law and deny the petition.

PETITION DENIED.

      . We further note that the First District Court of Appeal has separately denied substantially similar objections to discovery raised by FDOT with regard to discovery sought by Tropical in a separate class action in Leon County. See Florida Dept. of Transp. v. Tropical Trailer Leasing LLC, 219 So.3d 1040 (Fla. 1st DCA 2017); Florida Dept. of Transp. v. Tropical Trailer Leasing LLC, 219 So.3d 1039 (Fla. 1st DCA 2017).


author: ROTHENBERG, C.J. LUCK, J.,

text:
    Christa ADKINS, Petitioner, v. Michael SOTOLONGO, Respondent.
    No. 3D17-916
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017

      Christa Adkins, in proper person.
    Abramowitz and Associates, and Evan L. Abramowitz, for respondent Michael Sotolongo.
    Phillips Lanier, PLLC, and Emily Joyce Phillips, as former Guardian ad Litem.
    Before ROTHENBERG, C.J., and ■ LOGUE and LUCK, JJ. •' '
   ROTHENBERG, C.J.

What began as a child custody dispute between Christa Adkins, the mother, and Michael Sotolongo, the father, has now developed into a dispute relating to the reasonableness of the fees charged by the court-appointed guardian ad litem (“the guardian”) and the guardian’s attorney and as to what extent Ms. Adkins should be responsible for those fees. Ms. Adkins, who was ultimately granted full custody of the minor child, contends that the fees demanded are unreasonable, and the record appears at least partially to support that belief as the guardian has “corrected” some of her billings during the litigation over her fees.

The matter currently before this Court is Ms. Adkins’ certiorari petition, wherein she contends that the trial court departed from the essential requirements of law, resulting in irreparable harm that cannot be remedied on direct appeal, by ordering Ms. Adkins, who has been declared to be indigent, to advance the guardian’s fees and the guardian’s attorney’s fees prior to the taking of the guardian’s deposition. Ms. Adkins wishes to depose the guardian to address the basis for the fees demanded by the guardian in connection with the guardian’s services during the child custody dispute. Because the guardian’s fees have not yet been paid, the guardian sought, and was granted,.an order by the trial court requiring Ms. Adkins to pay for the fees associated with the taking of the guardian’s deposition as a prerequisite to actually taking the deposition. In other words, Ms. Adkins must pay to play.

We conclude that the trial court’s order both departs from the essential requirements of law and is in violation of a prior opinion issued by this Court. See Adkins v. Sotolongo, 197 So.3d 1233 (Fla. 3d DCA 2016). In Adkins, the trial court’s order regarding the payment of the guardian’s fees was the subject of the appeal. In reversing the order, this Court noted:

“[Tjhere [were] no findings in the order or record on appeal supporting the [guardian’s] requested fees, what those services were or their claimed value ... [and] nothing in the order on appeal or the record before us to indicate the trial court made any determination of the Mother’s or Father’s current ability to pay the court-appointed guardian fees.”

Adkins, 197 So.3d at 1234-35 (citation and footnote omitted). The opinion further states: “We do not dispute that the court-appointed guardian is entitled to payment but require that on remand the trial court determine both the party or parties responsible for payment of the guardian’s fees and costs and the proper amount due.” Id. at 1235.

On remand, Ms. Adkins sought discovery, including the guardian’s deposition, specifically related to the issue on re-. mand—the evidence of the services ■ performed by the guardian and the reasonableness of her requested fees. The guardian, objected to spending any more of her time without being paid. While the guardian’s frustration with not having been paid for her services is understandable, to require Ms. Adkins to pre-pay for the taking of her deposition was error in this case.

' First, we note that Ms. Adkins has indigency status. Second, the trial court has not yet determined which of the parties are responsible for the payment of the guardian’s fees. Third, the trial court has not yet.made a determination as to Ms. Adkins’ ability to pay for either the fees owed or the costs associated -with the discovery depositioh of the guardian. It was therefore error to require Ms. Adkins to pay the guardian’s fees for the deposition and to further require that she pay the fees in advance.

We conclude that the irreparable harm requirement has been demonstrated. Certiorari review of a discovery order is permitted when the discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the . proceedings and effectively leaving no remedy on appeal. Banco Latino (S.A.C.A.) v. Kimberly, 979 So.2d, 1169 (Fla. 3d DCA 2008). A trial court’s denial of a party’s right to depose a material witness has been found to constitute irreparable harm subject to certiorari review. Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000).

In Ruiz v. Steiner, 599 So.2d 196, 198-99 (Fla. 3d DCA 1992), this Court noted that certiorari review of orders denying discovery has -been granted in circumstances involving the denial of the right to take testimony of an alleged material witness because such a denial generally cannot be remedied on appeal since “there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.” (quoting Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980)); see also Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234-35 (Fla. 2d DCA 2009) (“[W]hen the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings”) (footnote omitted).

Although the trial court has not prohibited Ms. Adkins from taking the guardian’s deposition, because of Ms. Adkin’s indigen-cy status, the trial court has effectively precluded it. Ms. Adkins has been declared indigent in both the circuit court and this Court. She receives public assistance for herself and her two children. The record also reflects that Ms. Adkins, who is deeply in debt, has had to borrow money ($10,-000) from her elderly father to pay for legal assistance and to pay her share of a former guardian ad litem’s outstanding fees. She is currently representing herself.

The trial court’s order denying Ms. Ad-kin’s motion to compel the guardian’s deposition and the guardian’s responses to interrogatories and request for production, and the order granting the guardian’s motion for a protective order effectively preclude Ms. Adkins from any meaningful opportunity to mount a defense to the guardian’s fees, which Ms. Adkins contends were incurred in bad faith and not supported in fact. We also note that when Ms. Adkins attempted to cross-examine the guardian regarding her fees at the February 22, 2017 hearing, the trial court precluded the cross-examination and told Ms. Adkins she needed to take a discovery deposition of the guardian. However, Ms. Adkins’s attempts to comply with the trial court’s ruling have been stymied by the trial court’s March 30, 2017 order granting the guardian’s motion for a protective order from the discovery deposition.

In conclusion, the trial court’s order denying Ms. Adkin’s discovery requests and requiring her to advance the guardian’s and the guardian’s attorney’s fees before she may take the guardian’s deposition—all of which goes to the heart of Ms. Adkin’s defense—is a departure from the essential requirements of law. The irreparable harm prong has also been demonstrated. Without being able to conduct discovery, the opportunity to prepare a defense to the fees demanded will be materially impacted, which harm cannot be remedied on plenary appeal because there would be no practical way to determine what evidence would have been obtained had the discovery been permitted. We also find that the trial court’s order violates the substance and intent of this Court’s opinion in Adkins, which ordered that upon remand, the trial court was to determine which of the parties would be responsible for the payment of the guardian’s fees and costs and the proper amount due. We, therefore, grant the petition.

Petition granted.

LUCK, J.,

concurring:

The majority opinion grants the petition for writ of certiorari because “[a] trial court’s denial of a party’s right to depose a material witness has been found to constitute irreparable harm subject to certiorari review.” Maj. Op. at 719.1 concur because the majority opinion faithfully applies our precedent. I write separately because in my view we have stretched our certiorari jurisdiction too far in reviewing mid-litigation orders denying discovery depositions.

“Certiorari review of a discovery order is permitted,” as the majority opinion correctly explains, “when the discovery order departs from the essential requirements of law, causing material injury to a petition throughout the remainder of the proceedings and effectively leaving no remedy on appeal.” Id. “The second and third elements are sometimes referred to as irreparable harm, and [t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Hernandez v. Fla. Peninsula Ins. Co., 211 So.3d 1126, 1128 (Fla. 3d DCA 2017) (quotations omitted; alteration in original).

In our cases granting certiorari review where the trial court denied a party the right to depose a material witness, the only rationale we have given for meeting the jurisdictional-irreparable-harm standard has been that “such a denial cannot be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.” Ruiz, 599 So.2d at 198 (quotation omitted). Judge Padovano has explained the weaknesses of this rationale as it applies to mid-litigation discovery disputes:

The reason most often given for allowing review of an order denying discovery is that the appellate court would not know what the information was that was excluded and, as a consequence, the court would not know how the information might have affected the outcome of the case. This argument has some practical appeal but it also has two weaknesses. First, it is an argument that could be made about any order denying discovery. The danger in applying the rationale of the argument too freely is that it might convert an extraordinary remedy into a routine step in the process. Second, the argument fails to take full account of the remedies that are available on direct appeal. In many cases it may be an adequate remedy to reverse the judgment for a new trial to be conducted with the benefit of the discovery previously denied.

Philip J. Padovano, Florida Appellate Practice § 30:5 (2016 ed.) (footnote omitted).

I agree with Judge Padovano because there are practical ways, pre-judgment, the party seeking to depose a material witness can present that witness’s testimony to preserve the argument that the lack of deposition affected the result. The party seeking to depose the material witness can: (1) proffer the questions and anticipated testimony; (2) have the attorney proffer the harm caused in preparing the case for trial; (3) subpoena the material witness for trial and question the witness outside the presence of the jury; (4) subpoena the material witness for trial.and ask the deposition questions in front of the jury; (5) take the deposition after trial in support of a new trial motion; (6) ask that the material witness be ordered to present an affidavit of anticipated testimony; or (7) seek some combination of these things. Using, these tools, we regularly review as an issue on .final appeal whether there was a reasonable probability an error affected the result of- the trial (the harmless error standard) based on proffered testimony that was excluded. We could easily do the same for the harmful denial of a discovery deposition.

Ms. Adkins’s case presents a good example. The trial court effectively' (because of imposed costs) denied her the right to depose a material witness in advance -of the evidentiary hearing on guardianship fees. Ms. Adkins could have proffered the questions she would have asked at the deposition and what the anticipated answers would have been. Ms, Adkins could have called the material witness to testify at the evidentiary hearing, asked the same questions she would have asked at the deposition, and pointed opt to the trial court how she was prejudiced by not having that information in advance of the hearing. Either way, we would know prejudgment what the deposition testimony would have been and how it would have affected Ms. Adkins’s preparation for, and the result of, the hearing.

Because it is difficult to show that trial court error cannot be fixed as part of a final appeal, the “general rule” is that orders denying discovery are ordinarily not reviewable by certiorari, Ruiz, 599 So.2d at 197. This general rule is consistent with our constitutional structure limiting direct appeals of nonfinal orders, and saving everything else for final appeal. See Fla. Const, art. V, § 4(b)(1) (“District courts of appeal shall have jurisdiction to hear appeals, that may. be taken as a matter of right, from final judgments or orders of trial courts .... They may review interlocutory orders in such cases to the extent' provided by rules adopted by the supreme court.”); Fla. R. App. P. 9.130(a)(3) (“Appeals to the district courts of appeal of non-final orders are limited ....”). Loosening our certiorari jurisdiction to review all improper denials of material witness depositions, as we have done, is a backdoor way around the constitutional limitation on appeals from nonfinal orders, and usurps the Florida Supreme Court’s authority to designate certain nonfinal orders as- ap-pealable. •

If I were writing oil a clean slate, instead of a blanket rule finding irreparable harm in all cases.where the trial court denied a deposition of a material: witness, I would look on a case-by-case basis whether the discovery error caused a material injury to the petitioner that affected the rest of the proceedings, and that cannot be remedied on direct appeal. However, there being, no clean slate, the majority opinion correctly applies our district’s case law, and I join it.

      . See, e.g., Sabol v. Bennett, 672 So.2d 93, 94 (Fla. 3d DCA 1996) ("This court has previously recognized that an order which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result, (quotation omitted)); Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995) ("[Cjertiorari review of orders denying discovery has been granted where it was found that the injury caused by the order was irreparable. In circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.” (citation and quotation omitted)); Ruiz v. Steiner, 599 So.2d 196, 198 (Fla. 3d DCA 1992) ("[T]he denial of the right to take testimony of an alleged material witness ... cannot be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.” (quotation omitted)).


author: SCALES, J.

text:
    Miguel Y. PEREZ ESCALONA, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 3D16-2304
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017.

      G. William Allen, Jr. (Fort Lauderdale), for appellant.
    Raul J. Aguila', City Attorney, and Robert F. Rosenwald, Jr., First Assistant City Attorney, for appellee.
    Before LAGOA, SALTER and - SCALES, JJ.
   SCALES, J.

Appellant Miguel V. Perez Escalona worked as an engineer and project coordinator for Appellee City of Miami. Beach. After the City terminated his employment, Perez Escalona sued the City under Florida’s Whistle-blower’s Act, section 112.3187 of' the Florida Statutes. Perez Escalona maintained that his termination was a retaliation for ’ his reporting his concerns about a City water line construction project for which he served as project coordinator,

. The trial court entered judgment on the pleadings in. favor of the. City, holding that the pleadings conclusively established that Perez Escalona had failed to report his complaints in compliance with section 112.3187(6). This provision requires that, for his or her complaint to be actionable, a whistleblower must have notified either the City Manager, as chief executive officer of the City, or another “appropriate local official” of the City. § 112,3187(6), Fla. Stat. (2011). While Perez Escalona concedes that he did not notify the City Manager, he alleges in his amended complaint that he emailed his fellow engineers in the City’s Public Works Department to express his concerns about safety and environmental issues at the construction site, and that these colleagues each were an “appropriate local official” pursuant to the statute. The City denies these allegations in its answer to Perez Escalona’s amended complaint.

We review de novo a judgment on the pleadings. Glenn v. Roberts, 95 So.3d 271, 272 (Fla. 3d DCA 2012). A “motion for judgment on the pleadings must be decided wholly on the pleadings” and is granted only if the pleadings establish that the movant is entitled to judgment as a matter of law. Clarke v. Henderson, 74 So.3d 112, 114 (Fla. 3d DCA 2011). In determining whether the movant is entitled to judgment on the pleadings, all allegations in the non-moving party’s complaint must be taken as true and all allegations in the moving party’s answer, which have been denied, must be taken as false. Salussolia v. Nunnari, 215 So.3d 156, 157 (Fla. 3d DCA 2017).

For the City to prevail at this stage of the proceedings, the pleadings would have to establish as a matter of law that none of the three engineers who received Perez Escalona’s emailed report was an “appropriate local official” (i.e., one authorized to receive, investigate and process a whistleblower’s complaint) under section 112.3187(6). See Igwe v. City of Miami, 208 So.3d 150, 153-54 (Fla. 3d DCA 2016); Cummins v. Lake Cty. Bd. of Cty. Comm’rs., 671 So.2d 893, 893 (Fla. 5th DCA 1996); Op. Att’y Gen. 99-07. Indeed, our de novo review of the pleadings identifies this very issue as a disputed one that cannot be determined on the pleadings alone.

We, therefore, reverse the trial court’s judgment on the pleadings and remand for further proceedings.

Reversed and remanded.


text:
    Rhulien MILHOMME and Marie Milhomme, Appellants, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    No. 3D16-2089
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Mintz Truppman and Timothy H. Crutchfield, for appellants.
    Koch Parafinczuk Wolf Susen, Justin R. Parafinczuk and Andrew S. Ramos (Fort Lauderdale), for appellee.

      Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   PER CURIAM.

Following water damage to their home, Mr. and Mrs. Milhomme filed a claim under their homeowners’ insurance policy issued by Tower Hill Signature Insurance Company (“Tower Hill”). A Tower Hill claims service investigated the claim, did not dispute coverage for the date or type of loss, computed actual cash value and replacement value for the damage, and issued a cheek to Mr. and Mrs. Milhomme for the higher of the two values, less the deductible. Tower Hill’s transmittal letter stated that it would consider “supplemental claims for any damages discovered in the covered reconstruction and repair of the above mentioned property.”

The gross amount of the loss (before subtracting the deductible) computed by Tower Hill, however, was about $20,000 less than the detailed, line-item estimate of restoration and repair costs by the Mil-hommes’ licensed, independent adjuster. The independent adjuster’s line-item calculations plainly disclosed a disagreement regarding the actual cash value (and appropriate scope of work) regarding the claim.

Tower Hill declined to readjust -or pay any further part of the Milhommes’ estimate, and the Milhommes then sued Tower Hill in the circuit court for breach of the insurance policy. Tower Hill moved for summary judgment, relying principally on Slayton v. Universal Property & Casualty Insurance Co., 103 So.3d 934 (Fla. 5th DCA 2012). Tower Hill interprets Slayton to mean that no breach occurs so long as the insurer pays the amount its own adjuster computes to be due on the claim and also allows for “supplemental” claim submission (limited to additional damages discovered during the course of the reconstruction and repair).

The Milhommes opposed the motion and filed the affidavit and supporting cost estimates of their independent adjuster, George Quintero. The trial court granted the motion for summary judgment and entered a final judgment for Tower Hill. This appeal followed.

We reverse the order on summary judgment and the final judgment in favor of Tower Hill, and we remand for further proceedings. The Milhommes’ claim and the adjusted loss amount prepared by Mr. Quintero was not a “supplemental claim,” or one for “damages discovered in the covered reconstruction and repair” of the property. The Milhommes’ claim addressed the original casualty event and the amounts contended to be necessary to repair and restore the direct physical loss to the covered property.

We distinguish Slayton and decline to apply it here for the reasons we have explained in Siegel v. Tower Hill Signature Insurance Co., 225 So.3d 974 (Fla. 3d DCA 2017), and Francis v. Tower Hill Prime Insurance Co., 224 So.3d 259, 2017 WL 2960690 (Fla. 3d DCA July 12, 2017).

Reversed and remanded for further proceedings.

      . Neither of these decisions was available to the trial court when it considered and ruled upon Tower Hill’s motion for final summary judgment.