author: Damoorgian, J.

text:
    Greg SENSER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2893
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Greg Senser, appeals his judgment and ensuing life sentence for the second-degree murder of Jason Barnett (the "Victim"). Because a statement taken from Appellant in violation of Miranda was admitted against Appellant at trial, we reverse and remand for a new trial.

Factual Background

Responding to a disturbance call at an apartment building at around two in the morning, police encountered Appellant running away from the building and found the Victim bleeding profusely from a large cut to his neck. The Victim died from his injuries and Appellant was charged with second-degree murder. Before trial, Appellant moved to suppress certain statements outlined below, arguing that they were taken in violation of Miranda .

At the suppression hearing, the officers who reported to the call testified regarding the circumstances in which Appellant made the challenged statements. The two officers who pursued Appellant on foot testified that upon seeing Appellant running away from the apartment building, they yelled "stop, police!" However, Appellant continued to run and lost the officers by hiding in some nearby hedges. When Appellant emerged from the hedges about ten minutes later, the officers pulled their weapons and ordered Appellant to the ground. The officers then approached Appellant, who was soaking wet and bleeding from a cut to the head, and handcuffed him. Without notifying Appellant of his Miranda rights, one of the officers asked Appellant "why are you running, why are you running" to which Appellant responded that he "was being followed by a black male and that he was shooting at him and he was scared for his life." Both officers involved testified that at the time this exchange occurred, they did not know whether Appellant was a suspect, a victim, a witness, or whether there was even a crime.

While the two officers were pursuing Appellant, the remaining officers reporting to the call encountered the Victim in the apartment building's breezeway lying face down and hemorrhaging from his neck. The officers called for a medic and began rendering aid to the Victim. A few minutes later, the officers who apprehended Appellant returned to the scene with Appellant and had him sit (still cuffed but not yet Mirandized ) in the near vicinity. At this point, one of the officers rendering aid overheard Appellant say "it was just a fight, I didn't mean to kill him."

Considering the foregoing, the court denied Appellant's motion to suppress as it pertained to Appellant's response to the "why are were you running" question and his "it was just a fight, I didn't mean to kill him" utterance. The court reasoned that the officer was not required to inform Appellant of his Miranda rights before asking why he was running because, from the officer's point of view, he was "maintaining the status quo" and "identifying what was going on." With respect to Appellant's "it was just a fight, I didn't mean to kill him" utterance, the court ruled that the statement was admissible because it was not made in response to a law enforcement question and was, therefore, a "spontaneous statement."

The case proceeded to trial wherein the State introduced evidence of the circumstances surrounding the disturbance call, Appellant's relationship with the Victim, law enforcement's pursuit of Appellant, Appellant's non-suppressed statements to law enforcement, and the physical evidence collected from the scene. The officers who reported to the disturbance call each offered testimony mirroring their testimony at the suppression hearing. Pursuant to the court's suppression ruling, the officers who pursued Appellant testified that after being asked why he was running upon apprehension, Appellant stated that he had been shot at by a black male and was scared for his life. Likewise, the officer who was rendering aid testified that upon seeing the Victim, Appellant stated something to the effect of "it was just a fight, I didn't mean to kill him."

The Victim had injuries consistent with significant blunt force trauma to the face, mouth, and nose, and his throat was cut from ear to ear all the way down to the cervical spine. The medical examiner opined that the Victim's neck wound was the result of several cuts with a sharp instrument. The Victim also had an abrasion on the back of his head and on his elbows, but did not have any defensive knife wounds. Appellant, in turn, had a minor cut on his head, some scratches on his neck and shoulder, a bruise on his left knee, and cuts on the knuckles of his right hand. His hands were also swollen.

Appellant's truck was found parked in the parking lot in front of the apartment building. A post-arrest inspection of the area where Appellant disappeared into the hedges revealed that there was blood on the top of the fence behind the hedges and on a spigot on the other side of the fence. This evidence led law enforcement to conclude that Appellant jumped the fence and rinsed himself off before jumping back over and emerging from the hedges. However, despite a search of the apartment building, the surrounding area, and Appellant's vehicle, law enforcement did not find any evidence that a firearm was used or fired on the night of the murder and likewise did not recover the instrument used to cut the Victim.

At trial, Appellant argued that he acted in self-defense and that law enforcement botched the investigation by not fully exploring the possibility that another person attacked the Victim and Appellant. To support this theory of defense, during its cross-examination of the testifying officers, Appellant's counsel highlighted the fact that law enforcement failed to set up a perimeter of the scene and, therefore, could not ensure that a third person was there and ran away. Further, when defense counsel cross-examined the medical examiner, it emphasized the lack of defensive wounds on the Victim. Defense counsel also asked the medical examiner if it was "possible that [the Victim's neck] wound could be consistent with one person holding his hands or arms behind his back preventing him from putting his hands up to defend himself while the other individual slashed his throat." The medical examiner answered that it was "one scenario."

At the conclusion of the case, based on the theories suggested by Appellant, the State asked the court to provide the jury the following principals instruction in the event that the jury accepted Appellant's suggestion that a third party was involved in the altercation which led to the Victim's death:

PRINCIPALS
If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if
1. The defendant had a conscious intent that the criminal act be done; and
2. The defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit the crime.
To be a principal, the defendant does not have to be present when the crime is committed.

The court agreed to provide the instruction.

The jury found Appellant guilty of second-degree murder and the matter proceeded to sentencing where family members from both the Victim's and Appellant's families testified. During the sentencing hearing, the prosecutor argued that Appellant should "be held to a higher standard" because Appellant "has been afforded and given every valuable opportunity in this world. He comes from a very nice family, a very hardworking family, we're venturing to say a wealthy family, a very good-looking family, a white family, an affluent family, a wealthy family, a loving family most importantly." Defense counsel objected to this argument, contending that the argument that someone should "be treated different because they're white, black or whatever color" was improper. The court noted the defense's objection and proceeded to sentence Appellant to life in prison based on the court's consideration of Appellant's prior criminal history and the violent nature of the crime.

On appeal, Appellant challenges the admission of his pre- Miranda statements. Additionally, he challenges the court's decision to give the principals instruction. Finally, Appellant argues that his sentence was based on improper considerations, namely his race. We hold that the admission of the "I was shot at by a black male and am scared for my life" statement was improperly admitted and requires reversal. Although this resolves the appeal, we also briefly write to address the remaining issues raised by Appellant.

Analysis

1. The Suppression Rulings

"The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court's factual findings but review legal conclusions de novo." Backus v. State , 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). Whether an officer's action "constitutes [an] 'interrogation' for Miranda purposes, is a legal conclusion reviewed de novo." State v. Lantz , 237 So.3d 1168, 1170 (Fla. 1st DCA 2018).

The Florida and United States Constitutions protect those arrested for committing crimes against being compelled to become witnesses against themselves in their own criminal cases. U.S. Const. amend. V ; Fla. Const. art. I, § 9 ; Ramirez v. State , 739 So.2d 568, 572-73 (Fla. 1999). In Miranda , the United States Supreme Court held that in order to safeguard these constitutional protections, suspects arrested for crimes must be notified of their "right to remain silent, that any statement [made] may be used as evidence against [them], and [of the] right to the presence of an attorney, either retained or appointed." 384 U.S. at 444, 86 S.Ct. 1602. However, "[t]he safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation." Timmons v. State , 961 So.2d 378, 379 (Fla. 4th DCA 2007) (emphasis added).

Here, both Appellant and the State agree that Appellant was forcibly handcuffed and detained. Therefore, Appellant was in custody at the time he gave both of the challenged statements. They also agree that Appellant was not advised of his Miranda rights before he made either statement. Thus, the pertinent question is whether Appellant was subject to interrogation when he made either statement.

The Supreme Court examined the concept of interrogation in the context of Miranda in Rhode Island v. Innis , 446 U.S. 291, 299-302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Innis court explained that under Miranda , an interrogation occurs "whenever a person in custody is subjected to either express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. 1682. The "functional equivalent" of express questioning is "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. 1682 (footnotes omitted). "The focus of the inquiry is 'primarily upon the perceptions of the suspect, rather than the intent of the police[,]' as 'the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.' " Timmons , 961 So.2d at 380 (quoting Innis , 446 U.S. at 301, 100 S.Ct. 1682 ). Citing Innis , the Florida Supreme Court reiterated that an "[i]nterrogation takes place ... when a person [in custody] is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response." Traylor v. State , 596 So.2d 957, 966 n.17 (Fla. 1992). "Thus, the standard as to whether a custodial interrogation has occurred is an objective one." Moore v. State , 798 So.2d 50, 53 (Fla. 1st DCA 2001).

Interpreting Innis , Florida courts have held that questions regarding basic identification information are not interrogation questions subject to Miranda because they are designed to garner essential biographical data rather than an incriminating response. See Allred v. State , 622 So.2d 984, 987 n.9 (Fla. 1993) (routine booking questions, such as "[n]ame, address, height, weight, eye color, date of birth, and current age," are not subject to Miranda ); Tobiassen v. State , 213 So.3d 1045, 1050 (Fla. 4th DCA 2017) (employment related question asked during the booking process was not subject to Miranda ); Timmons , 961 So.2d at 380 (asking a suspect if he was staying at the hotel where the police were performing a sweep was not an interrogation question subject to Miranda ).

Likewise, innocuous conversational questions on unrelated topics do not constitute interrogation questions subject to Miranda . For example, in State v. Koltay , 659 So.2d 1224, 1225 (Fla. 2d DCA 1995), while transporting an arrested but un-Mirandized suspect to a police station, the transporting officer engaged in small talk with the suspect. As the conversation progressed, the officer asked the suspect why he recently left an emergency mental health shelter. Id. In response, the defendant became irate and said, "I'm not crazy just because I f----d a little girl." Id. Although the suspect was in custody and his response was incriminating, the court held there was no custodial interrogation because the "question was not reasonably likely to elicit an incriminating response." Id. at 1226.

However, when an officer's questions or actions extend beyond requests for basic biographical information and could reasonably be viewed as designed to secure potential incriminating evidence, the questions or actions constitute an interrogation. For example, asking a suspected drunk driver to recite the alphabet is an interrogation because the suspect's response could foreseeably be used against him. Allred , 622 So.2d at 987. Additionally, confronting a custodial suspect with a reference to the underlying crime or evidence of the crime amounts to an interrogation because such actions could reasonably prompt an incriminating response. Origi v. State , 912 So.2d 69, 73 (Fla. 4th DCA 2005) (officer's act of grabbing suspect by the hand, holding out a cooler full of drugs, and stating "that's a lot of drugs you had" constituted an interrogation); State v. Lebron , 979 So.2d 1093, 1095 (Fla. 3d DCA 2008) (officer's statement "I hope you know what kind of trouble you are in," amounted to an interrogation requiring administration of Miranda ); Larson v. State , 753 So.2d 733, 734-35 (Fla. 2d DCA 2000) (where law enforcement officer mentioned to the suspect that he was "looking at twenty-five years" for his involvement in the case, the officer's statements were an interrogation because they "were reasonably likely to elicit an incriminating response from [the defendant]").

a. The "A Black Man Was Shooting at Me and I'm Scared for my Life" Statement

The first statement at issue, "a black man was shooting at me and I'm scared for my life," was made by Appellant in response to an officer asking "why were you running?" The trial court ruled that the question was not subject to Miranda because, from the officer's perspective based on the information available to him at the time, it was meant to garner background information rather than an incriminatory response. As discussed above, this was not the correct legal standard. Instead of examining the question from the officer's subjective point of view, the court was required to look at the question objectively and consider whether a reasonable person in the suspect's position would conclude that the question was designed to lead to an incriminating response. Traylor , 596 So.2d at 966 n.17.

Looking at the scenario from a reasonable person in Appellant's position, Appellant was chased by law enforcement while running away from a crime scene, ordered to the ground at gun point, handcuffed, then asked "why were you running?" Under these circumstances, although law enforcement may not have been aware that there was a crime or that Appellant was the suspect, from the perspective of a reasonable person in Appellant's position, the question "why are you running" was reasonably designed to elicit inculpatory information. As opposed to simple questions calling for one word safety related responses, such as "are you okay" or "are you in danger," the question "why are you running" required an explanation as to why Appellant was actively fleeing law enforcement. In this context, virtually any information given in response to the question could be incriminating. Indeed, even though Appellant responded by indicating that he was a victim, this statement was nonetheless used against him at trial as proof that the defendant lied about the nature of the encounter. Accordingly, Appellant's statement was the result of a custodial interrogation and, therefore, was subject to the protection of Miranda . As Appellant was not advised of his Miranda rights, the statement should have been suppressed. Based on the foregoing, the court's admission of the "a black man was shooting at me and I'm scared for my life" statement requires reversal for a new trial.

b. The "It Was Just a Fight, I Didn't Mean to Kill Him" Statement

With respect to Appellant's "it was just a fight, I didn't mean to kill him" statement, the evidence surrounding this statement establishes that it was uttered spontaneously by Appellant. Furthermore, the statement was not the result of any law enforcement question or confrontation. Therefore, the statement was not subject to Miranda . See Gordon v. State , 213 So.3d 1050, 1054 (Fla. 4th DCA 2017) (defendant's unprovoked statements to deputy who was watching defendant in a holding cell while defendant was awaiting transportation were not the result of an interrogation and, therefore, were not subject to the requirements of Miranda ); Drout v. State , 99 So.3d 549, 549 (Fla. 3d DCA 2011) ("Because the record fully supports the trial court's finding that the statements were spontaneously uttered and not the product of the functional equivalent of a police interrogation, we affirm."). Accordingly, we hold that the trial court correctly ruled that Appellant's "it was just a fight, I didn't mean to kill him" statement was admissible at trial.

2. The Principals Jury Instruction

Appellant next argues that the court abused its discretion when it granted the State's request to provide the jury with a principals instruction because "the record facts did not support an inference that [Appellant] acted in concert with another to accomplish his objective." We disagree.

"Trial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice." Lewis v. State , 693 So.2d 1055, 1058 (Fla. 4th DCA 1997). "Jury instructions requested by the State 'must relate to issues concerning evidence received at trial.' "

Id. at 1057 (quoting Butler v. State , 493 So.2d 451, 452 (Fla. 1986) ).

Therefore, it is generally error to instruct the jury on principals where there is no evidence to support an aiding and abetting theory of guilt because the jury may be confused by the instruction. However, in order for the unnecessary instruction to constitute reversible error, it must, under the circumstances of the case, be capable of misleading the jury in such a way as to prejudice the defendant's right to a fair trial.

Id.

In Lewis , this Court held that the trial court did not abuse its discretion in granting the State's request for a principals instruction in a case where the defendant was accused of throwing a Molotov cocktail through his ex-girlfriend's window. Id. at 1056. There, during trial, the State asked the court for the instruction in the event that the jury assumed someone else actually threw the Molotov cocktail, although there was no evidence of any such third party involvement. Id. We affirmed on appeal, reasoning that the State's argument to the jury that the defendant "either knew what was going to happen, played an active role in making it happen, or he threw it through that bedroom window" was sufficient to support the instruction. Id. at 1058.

In the instant case, through his evidence and questioning of various witnesses, Appellant advanced a theory that there was another person involved in the Victim's death. Specifically, in opening arguments, defense counsel argued that law enforcement botched the investigation by not fully exploring the possibility that another person attacked the Victim and Appellant. To support this theory of defense, during its cross-examination of the testifying officers, Appellant's counsel highlighted the fact that law enforcement failed to set up a perimeter of the scene and, therefore, could not ensure that a third person was there and ran away. Further, when counsel cross-examined the medical examiner, he asked the medical examiner if it was "possible that [the Victim's neck] wound could be consistent with one person holding his hands or arms behind his back preventing him from putting his hands up to defend himself while the other individual slashed his throat". The medical examiner answered that it was "one scenario." Accordingly, since the defense presented evidence that there may have been another individual involved, there was evidence supporting the instruction.

3. Improper Sentencing Considerations

Lastly, Appellant argues that his life sentence was based on impermissible sentencing factors. It is more than well established that a court's reliance on constitutionally impermissible factors, such as race and national origin, when imposing a sentencing is a violation of a defendant's due process rights. Santisteban v. State , 72 So.3d 187, 197 (Fla. 4th DCA 2011) ; Nawaz v. State , 28 So.3d 122, 124-25 (Fla. 1st DCA 2010). However, when determining whether a court relied on impermissible sentencing factors, it is primarily the court's express rationale, not the evidence or arguments presented at sentencing, which controls. Compare Nusspickel v. State , 966 So.2d 441, 446 (Fla. 2d DCA 2007) (fact that evidence of improper sentencing factor was presented at sentencing did not merit resentencing when the court expressly wrote that its sentence was not based on that evidence), with Santisteban , 72 So.3d at 197 (holding that court based sentence on impermissible factor of religion when it expressly stated that it was being mindful of Jewish tradition in "imposing a sentence over the loss of life of four Jewish people"), and Soto v. State , 874 So.2d 1215, 1216 (Fla. 3d DCA 2004) (appellate court was "compelled by the judge's own statements" that it was considering defendant's unwillingness to admit guilt in sentencing).

In the instant case, the prosecutor argued that Appellant should be held to a "higher standard" in part because of the privilege afforded by his race. Although the court's express rationale for imposing its sentence does not suggest that it relied on the prosecutor's race argument when it rendered its sentence, we are nonetheless compelled to comment on this situation. The prosecutor's race-based argument was highly improper under any view and should not have been made. Yet, when Appellant objected, the court merely noted the objection for the record. We urge courts faced with similar situations in the future to admonish any lawyer advocating for an improper sentencing consideration and make it clear on the record that such an improper factor is not a basis for the imposed sentence.

In conclusion, we hold that Appellant is entitled to a new trial based on the admission of his statement to the effect of "a black man was shooting at me and I'm scared for my life" because the statement was the result of a custodial interrogation and Appellant was not advised of his Miranda rights.

Reversed and remanded.

Gerber, C.J., and Klingensmith, J., concur.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Based on the manner the statement was used, the State concedes that in the event the statement was improperly admitted, the error could not be harmless. Deviney v. State , 112 So.3d 57, 79 (Fla. 2013) ("Miranda violations are subject to a harmless error analysis.") (citing State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986) ).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Yael LAUFMAN, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D16-3092
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Chase E. Jenkins of Loan Lawyers, LLC, Fort Lauderdale, for appellant.
    Karusha Y. Sharpe and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, and Michele L. Stocker of Greenberg Traurig, P.A., For Lauderdale, for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Damoorgian, Forst and Klingensmith, JJ., concur.


text:
    Michael CARUSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2202
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Johnson v. State , 215 So.3d 644 (Fla. 5th DCA 2017), rev. granted , Case No. SC17-845, 2017 WL 3484099 (Fla. July 28, 2017).

Warner, Gross and Taylor, JJ., concur.


text:
    Stephen SMITH, Appellant, v. Michael James WINER, individually and Winer & Associates, P.A., Appellees.
    No. 4D17-2255
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Stephen Smith, Sunrise, pro se.
    Michael Winer of The Law Office of Michael Winer, P.A., Fort Lauderdale, for appellees.
   Per Curiam.

Affirmed. Fla. R. App. P. 9.315(a).

Warner, Damoorgian and Klingensmith, JJ., concur.


text:
    Joseph Jamal WALKER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-3994 4D16-4161 4D16-4253
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ilana Mitzner, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the convictions and sentences in all respects. We remand to the circuit court for correction of the written revocation order to conform to the court's oral pronouncement. The written order contains a violation for failing to undergo a drug and alcohol evaluation; in its oral pronouncement, the court ruled that violation had not been established. The written order also contains a violation for committing the offense of possession of a firearm by a convicted felon; however, the state nolle prossed that count at sentencing after the court's oral pronouncement.

Affirmed and remanded for correction .

Warner, Gross and Levine, JJ., concur.


text:
    Jose ESCOBAR and Iris Escobar, Appellants, v. NEW HAMPTON AT CENTURY VILLAGE CONDOMINIUM #IV ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D17-3316
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Joseph M. Pustizzi of Law Office of Joseph Pustizzi, P.A., Hollywood, for appellants.
    Shelley J. Murray of Straley & Otto, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed. See Tubbs v. Mechanik Nuccio Hearne & Wester, P.A. , 125 So.3d 1034, 1041 (Fla. 2d DCA 2013) (where court wrote that "courts must look to the substance of litigation outcomes-not just procedural maneuvers-in determining the issue of which party has prevailed in an action"); Padow v. Knollwood Club Ass'n , 839 So.2d 744, 745 (Fla. 4th DCA 2003).

Warner, Gross and Taylor, JJ., concur.


author: SUAREZ, J.

text:
    Terrence JEFFERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1071
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   SUAREZ, J.

Terrence Jefferson appeals his convictions and sentences entered by the trial court after a jury found him guilty of committing the crimes of attempted armed sexual battery and armed false imprisonment. We affirm.

The 18-year-old victim was walking home around 10:30 pm from her job at Aventura Mall when the Appellant drove up beside her and repeatedly asked her to get in the car. Because it was raining heavily, she got in. The Appellant did not go in the direction of her house, but drove in another direction and then offered her money to have sex with him. When she refused and tried to get out of the car, she testified that he grabbed her and brandished a gun. When the Appellant pulled over to park, the victim managed to get out of the car and run, losing her shoe, her phone and purse in the process. The Appellant followed her in the car. The victim ran up to a house and knocked on the door. The Appellant got out of his car and began to approach her. She ran, got caught on a fence, and started screaming. The homeowner came out, called 911, at which point the Appellant got back into his car and drove off.

The 911 tape was entered into evidence without objection. The homeowner told the 911 operator that a girl was screaming that someone was trying to rape and kill her, that she was scared he might come back for her. The victim told the 911 operator that not only did the person try to rape her but that he held a gun to her head. The police detectives testified that the victim's clothes were torn and disheveled, that she was hysterical. The victim identified the Appellant from a photo lineup. Over hearsay objection, the lead detective was allowed to testify to what the homeowner (the 911 caller) told him the day after the incident, about hearing the girl scream, going outside, seeing a man walk back towards a black car and driving away.

The Appellant admitted in a post-Miranda interview to picking up the girl, and asking her to have sex with him for money. He admitted that she refused and ran away once he had parked the car. A jury found the Appellant guilty of false imprisonment with a firearm, unlawful possession of a firearm while engaged in a criminal offense, and attempted sexual battery with a firearm. The defense moved for judgment of acquittal as to all counts, specifically arguing that the State had failed to introduce a prima facie case that the Appellant intended to commit a sexual battery against the victim. The trial court denied the motion. On motion to correct an illegal sentence, the Appellant was adjudicated as a habitual offender and sentenced to thirty years for the armed false imprisonment, and life as to the attempted armed sexual battery. The conviction for possession of firearm in commission of a felony was vacated.

On appeal, the Appellant argues that the trial court improperly admitted hearsay testimony from the detective who interviewed the 911 caller the day after the incident. He argues that the detective's "hearsay" testimony regarding the 911 caller's statements bolstered or corroborated the victim's testimony that the Appellant used a gun against her. The out of court statement, however, did not provide any evidence of the Appellant's guilt or identify the appellant. The 911 recording of both the 911 caller and the victim was admitted into evidence without objection and played to the jury. The detective's testimony about the 911 caller's statement to him was merely duplicative of that information, where the statement that the Appellant used a gun in the commission of the offense had already been admitted. The testimony did not identify the Appellant as the offender, and further, the Appellant himself admitted to approaching the victim at the 911 caller's home, and fleeing from the scene. We find no abuse of discretion in allowing the detective's testimony regarding the 911 caller's statements. See Williams v. State, 967 So.2d 735 (Fla. 2007) (upholding, in the absence of abuse of discretion, a trial court's ruling on the admissibility of evidence).

The Appellant further argues that the trial court erred when it denied the defense motion for judgment of acquittal on the attempted sexual battery charge. We conclude it did not. A motion for judgment of acquittal is reviewed de novo to determine whether the evidence is legally sufficient to support the jury's verdict. See Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). When considering a motion for judgment of acquittal, all evidence is viewed in the light most favorable to the State. See Irizarry v. State, 905 So.2d 160, 165 (Fla. 3d DCA 2005). The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence presented by the State. See State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998). In moving for a judgment of acquittal, a defendant admits all facts and evidence adduced at trial, and all reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the State. See Izquierdo v. State, 177 So.3d 1018, 1020 (Fla. 3d DCA 2015).

The two necessary elements for an attempt to commit a crime are: (1) a specific intent to commit a particular crime and (2) an overt act toward its commission. State v. Ortiz, 766 So.2d 1137, 1143 (Fla. 3d DCA 2000). "The intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed commission of the crime. Thus, the act must go beyond mere preparation and planning." Geldreich v. State, 763 So.2d 1114 (Fla. 4th DCA 1999) (internal citation and quotation marks omitted). Even in the absence of physical evidence such as semen or DNA, we conclude that the other circumstantial evidence here is sufficient for a jury to consider whether the Appellant engaged in an attempted sexual battery of the victim.

Both the victim's testimony and the Appellant's testimony provide proof beyond a reasonable doubt that the Appellant had the specific intent to sexually assault the victim, and made overt acts to accomplish that assault. The Appellant admitted that he followed the victim and demanded that she get into his car, that he asked her to take her blouse off, that he offered her money for sex, and that he forcibly attempted to keep her in the car for that purpose.

We affirm the final judgment of conviction and sentences.

      The record indicates that the objection to the detective's testimony was based on hearsay, not improper bolstering. The bolstering argument is thus not preserved for appeal.


author: SCALES, J.

text:
    HAAS AUTOMATION, INC., Appellant, v. Dr. Robert FOX, et al., Appellees.
    Nos. 3D16-1692 3D17-173 3D17-174
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018.
    Kopelowitz Ostrow Ferguson Weiselberg Gilbert, and John J. Shahady and Thomas R. Shahady (Fort Lauderdale); Law Offices of Douglas Paul Solomon, and Douglas P. Solomon (Fort Lauderdale), for appellant.
    Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Christopher M. Yannuzzi ; Marshall Socarras Grant, P.L., and Ruben E. Socarras (Boca Raton), for appellees.
    Before LOGUE, SCALES and LINDSEY, JJ.
   SCALES, J.

Appellant, defendant/counter-plaintiff/cross-plaintiff below, Haas Automation, Inc. ("Haas"), appeals three final judgments entered against Haas in this case. In appellate case number 3D16-1692, Haas appeals the final judgment entered in favor of (i) appellees, plaintiffs/counter-defendants below, Dr. Robert Fox, Helene Fox, Dr. Steven Fox and Sherri Fox ("the Foxes"), on the Foxes' claims for breach of a third-party beneficiary contract and for declaratory relief; and (ii) appellee, defendant/cross-defendant below, Fisher Auction Company, Inc. ("Fisher Auction") on Haas's crossclaims for breach of contract, material alteration and deceptive and unfair trade practices. In appellate case number 3D17-173, Haas appeals the final judgment awarding attorney's fees and costs to the Foxes. In appellate case number 3D17-174, Haas appeals the final judgment awarding attorney's fees and costs to Fisher Auction. We consolidated the three appeals, and affirm the final judgment on the merits, and affirm, in part, the attorney's fees judgments.

I. Facts

A. The Relevant Documents

The Foxes engaged the services of Fisher Auction to sell two oceanfront homes in Golden Beach, Florida at the same auction. The auction brochure advertising the auction, and the property information package describing the subject properties, plainly indicated that the two homes would be sold separately. Pursuant to the auction's eligibility rules, Haas registered to bid on the homes and executed a Bidder Registration Form and a document titled "General Terms and Conditions of Sale." In order to be eligible to bid on both homes, pursuant to the General Terms and Conditions of Sale, Haas deposited $1,000,000 with Newman Guaranty Title Insurance Agency ("Newman Title") (i.e., $500,000 for each property), and noted on the Bidder Registration Form that Haas would be bidding on both properties.

The General Terms and Conditions of Sale contained, inter alia , provisions requiring the highest bidder at the auction to execute, as the buyer, a purchase and sale contract, with no edits, revisions, or amendments. The General Terms and Conditions of Sale provided that should the highest bidder fail to comply with this requirement immediately following the auction, the seller (the Foxes) would retain the required deposits as liquidated damages:

8. DEFAULT:
If the Buyer fails to comply with any of these General Terms and Conditions of Sale, the Seller shall retain the required deposit(s), which shall be considered fully earned and non-refundable, under the Agreement as liquidated damages and not as a penalty. Upon Default, Buyer agrees to the immediate release of the deposit funds to the Seller without the requirement of further documentation from Buyer.

The purchase and sale contract that the highest bidder was required to execute contained the following prevailing party attorney's fee provision:

6. Special Clauses:
....
M.... In any litigation, including breach, enforcement or interpretation arising out of this Contract, the prevailing party in such litigation shall be entitled to recover from the non-prevailing party, reasonable attorney's fees, costs and expenses.

B. The Auction

On November 10, 2011, the auction of both homes was held in the living room of one of the homes. Fisher Auction's auctioneer explained at the auction that the homes would be sold using the "High Bidder's Choice" method, whereby the highest bidder in the first round would choose which of the two homes to purchase at that high bid. If, however, the high bidder in the first round had registered to bid on both homes, as did Haas, the high bidder could purchase both homes for two times the high bid amount; and, if the high bidder exercised this option, the auction would be over.

In the auction's first round, Haas, through Mr. Wadsworth, was the high bidder, bidding $6.2 million. At the fall of the gavel, the auctioneer asked if Mr. Wadsworth wanted to exercise the option to take both homes at "two times the bid." Mr. Wadsworth indicated he did wish to exercise the option, which decision was clearly acknowledged by the auctioneer. After exercising the option, the auctioneer announced that the high bidder had taken both homes and, thus, the auction was over. The auctioneer stated:

He takes them both, folks. It's times two's the money. He takes both properties at $6.2 million. Auction's over folks. Ladies and gentlemen, I want you to understand, that's what's happened. Remember I told you the high bidder could take them, two times the bid. He's indeed done that.

After the auction, Mr. Wadsworth signed a Bid Acknowledgment Form that indicated that the bid price was "6.2M" rather than twice that number. After Mr. Wadsworth executed the Bid Acknowledgement Form, Fisher Auction's executive vice president, Francis Santos, who was also in attendance, handwrote "x2" next to the bid price on the form. Mr. Santos then took the Bid Acknowledgment Form to the "contract room," where a Fisher Auction employee filled in blanks on the form, including the ten percent buyer's premium ($620,000) provided for in the General Terms and Conditions of Sale, and the total purchase price ($6,820,000).

While he signed the Bid Acknowledgment Form, Mr. Wadsworth refused both: (i) to execute the two purchase and sale agreements; and (ii) to pay an additional deposit ($364,000) as required by the General Terms of Conditions of Sale. Mr. Wadsworth stated that he believed that he had purchased both homes for the $6.2 million bid. The Foxes then ended up selling the two homes to other buyers for well less than $6.2 million each, resulting in a significantly smaller amount of sales proceeds to the Foxes after sales commissions were deducted.

C. The Lawsuit

In November 2011, the Foxes filed the underlying action in the Miami-Dade County Circuit Court. In their Amended Complaint, the Foxes brought: (i) a claim against Haas for breach of a third-party beneficiary contract (i.e., the General Terms and Conditions of Sale) (Count I), seeking to retain, as liquidated damages, the $1,000,000 Haas had deposited with Newman Title in order to bid on the two homes at the auction; and (ii) a claim against Haas and Fisher Auction for declaratory relief (Count II) regarding the Foxes' entitlement to the $1,000,000 deposit.

Haas filed an Amended Counterclaim for breach of contract against the Foxes, alleging that the Bid Acknowledgement Form created a binding contract requiring the Foxes to sell both properties to Haas for $6.2 million. Haas also filed a Second Amended Crossclaim against Fisher Auction alleging: (i) breach of contract (Count I), based on Fisher Auction's purported breach of the Bid Acknowledgment Form; (ii) material alteration (Count II) of the Bid Acknowledgment Form, based on Mr. Santos's adding "x2" next to the bid price; and (iii) deceptive and unfair trade practices (Count III).

During the course of the proceedings, the Foxes served a request for admissions on Haas. Haas denied those admissions that were directed to the events that took place at the auction, including Mr. Wadsworth's understanding of, and actions at, the auction.

The parties also served proposals for settlement on each other. Specifically, Haas served a separate proposal for settlement on each of the four Foxes, offering to settle all claims and counterclaims in exchange for Haas paying each of the Foxes $28,151 and each of the Foxes executing a general release of their claims to the $1,000,000 deposit then being held by Newman Title. The Foxes, jointly, served a single, un-apportioned proposal for settlement on Haas, offering to settle the Foxes' claims for $799,999.00. According to the Foxes' proposal, the settlement would be paid from the $1,000,000 deposit then being held by Newman Title, with $799,999.00 going to the Foxes and the remaining $200,001.00 going to Haas. Fisher Auction served a proposal for settlement on Haas, offering to settle Haas's crossclaims against it in exchange for paying Haas $1,000. None of the proposals for settlement were accepted.

D. The Trial

The trial court conducted a two-day bench trial in April 2016. In a detailed, thirty-nine page order outlining findings of fact and conclusions of law, the trial court concluded that: (i) the Bid Acknowledgment Form was not a "fully-integrated expression of the parties' agreement" to sell the Foxes' homes to Haas for $6.2 million; (ii) the General Terms and Conditions of Sale, the Bid Acknowledgment Form, and the purchase and sale contract all worked together to establish and memorialize the auction process; (iii) the auctioneer plainly and clearly explained the auction methods; (iv) Haas breached the General Terms and Conditions of Sale by failing to execute the purchase and sale contracts for the two properties; (v) the Foxes were intended third-party beneficiaries of the General Terms and Conditions of Sale; and (vi) the liquidated damages provision of the General Terms and Conditions of Sale did not constitute an unenforceable penalty provision. The trial court also rejected Haas's crossclaim against Fisher Auction for deceptive and unfair trade practices. These findings of fact and conclusions of law were incorporated into a June 7, 2016 final judgment, awarding to the Foxes, as liquidated damages, the $1 million Haas had previously deposited with Newman Title. Haas timely appealed this final judgment (appellate case number 3D16-1692).

E. Attorney's Fees Awarded to the Foxes

Shortly thereafter, the parties litigated whether the Foxes and Fisher Auction were entitled to recover their attorney's fees from Haas. The trial court concluded that the Foxes were entitled to attorney's fees based upon: (i) the prevailing party attorney's fees provision contained in the unexecuted purchase and sale contracts; (ii) Haas's rejection of the Foxes' joint proposal for settlement; and (iii) Haas's denial of certain of the Foxes' requests for admission with respect to the events that took place at the auction, including Mr. Wadsworth's understanding of, and actions at, the auction. Commendably, the parties thereafter stipulated to the amount of attorney's fees to which the Foxes were entitled to recover under each ground, with Haas reserving the right to appeal the trial court's entitlement determination. On January 4, 2017, the trial court entered a final attorney's fees judgment for the Foxes in the amount of $207,172.61, including taxable costs, that Haas also has appealed (appellate case number 3D17-173).

F. Attorney's Fees Awarded to Fisher Auction

The trial court concluded that Fisher Auction was also entitled to attorney's fees based upon: (i) the prevailing party attorney's fees provision contained in the unexecuted purchase and sale contracts; and (ii) Haas's rejection of Fisher Auction's proposal for settlement. Once again, the parties thereafter stipulated to the amount of attorney's fees to which the Foxes were entitled to recover under each ground, with Haas reserving the right to appeal the trial court's entitlement determination. On January 4, 2017, the trial court entered a final attorney's fees judgment against Haas in the amount of $53,604.24, including taxable costs, for Fisher Auction, that Haas also has appealed (appellate case number 3D17-174).

II. Analysis

A. The Judgment on the Merits (3D16-1692)

We review a judgment rendered after a bench trial to ensure that the trial court's findings of fact are supported by competent, substantial evidence. Underwater Eng'g Servs., Inc. v. Util. Bd. of City of Key West, 194 So.3d 437, 444 (Fla. 3d DCA 2016) ("In reviewing a judgment rendered after a bench trial, 'the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous.' Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 535 (Fla. 3d DCA 2015). Thus, they are reviewed for competent, substantial evidence."). We review the trial court's purely legal conclusions de novo . Id. (noting that a trial court's contractual interpretations rendered after a bench trial are subject to de novo review). The final judgment in this case implicates both standards.

The record contains ample competent, substantial evidence supporting the trial court's factual findings that: (i) the auction process was memorialized by several documents-to wit, the General Terms and Conditions of Sale, the purchase and sale contract and the Bid Acknowledgement Form; (ii) Haas, as the high bidder, was bound by the General Terms and Conditions of Sale; (iii) Haas breached the General Terms and Conditions of Sale when it failed to execute the purchase and sale contracts; and (iv) the Foxes were intended third party beneficiaries of the General Terms and Conditions of Sale agreement.

Similarly, the trial court did not err in its legal conclusion that the liquidated damages clause contained in the General Terms and Conditions of Sale is not an unenforceable penalty. See San Francisco Distrib. Ctr., LLC v. Stonemason Partners, LP, 183 So.3d 391, 394 (Fla. 3d DCA 2014) (concluding that a liquidated damages provision in a real estate sale contract will not be considered a penalty where the "sum stipulated to be forfeited [is] not [ ] grossly disproportionate to any damages that might reasonably be expected to follow from a breach," noting that "Florida courts addressing this issue have held that a forfeiture amount of ten percent or less of the total purchase price is not unconscionable") (quoting Lefemine v. Baron, 573 So.2d 326, 328 (Fla. 1991) ).

We, therefore, affirm the final judgment on the merits in favor of the Foxes and Fisher Auction.

B. The Attorney's Fees Judgments (3D17-173) and (3D17-174)

As noted earlier, the trial court determined that the Foxes were entitled to the recovery of their attorney's fees on three separate bases: (i) the attorney's fees provision of the purchase and sale contracts; (ii) the Foxes' proposal for settlement; and (iii) Haas's denial of requests for admission the Foxes propounded upon it. The trial court also determined that Fisher Auction was entitled to the recovery of its attorney's fees based upon (i) the attorney's fees provision of the purchase and sale contracts, and (ii) Fisher Auction's proposal for settlement. We address each basis of entitlement below.

1. Contractual Attorney's Fees

The trial court determined that both the Foxes and Fisher Auction were entitled to recover attorney's fees from Haas based on the prevailing party attorney's fees provision contained in the purchase and sale contracts. We disagree and disallow any fee award on this basis.

Haas never executed the purchase and sale contracts despite the express requirement in the General Terms and Conditions of Sale. Indeed, Haas's failure to execute these purchase and sale agreements formed the basis of Haas's breach. Without Haas having signed them, the purchase and sale contracts were unenforceable; and, though the General Terms and Conditions of Sale may have referenced the purchase and sale contracts, there was nothing in the General Terms and Conditions of Sale incorporating any of the provisions of the purchase and sale contracts into the General Terms and Conditions of Sale. Indeed, paragraph 16 of the General Terms and Conditions of Sale confirms that "this Agreement embodies the entire agreement between the parties relative to the subject matter, and there are no oral or written agreements between the parties, or any oral representations made by either party relative to the subject matter, which are not expressly set forth herein." Had Fisher Auction and the Foxes intended for the prevailing party to recover attorney's fees under the particular circumstances of this case, then a prevailing party attorney's fees provision also should have been set forth in the General Terms and Conditions of Sale-the document that Haas did sign. Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001) ("It is not clear that the parties intended to provide for an attorney's fee provision in the Agreement for Deed. However, it is clear that they knew how to draft such a provision since one appears in the Purchase Agreement. Absent the clear intention to include such a provision ... the trial court's award of attorney's fees ... was improper."). We therefore reverse that portion of both attorney's fees judgments purporting to entitle recovery on the attorney's fees provision found in the purchase and sale contracts. See id. at 418-19 (reversing the trial court's award of attorney's fees pursuant to a prevailing party attorney's fees provision contained in a purchase agreement where (i) the purchase agreement was referenced by, but not expressly incorporated into, the parties' subsequent deed agreement, and (ii) the deed agreement contained a provision providing that "[t]his Agreement ... contains the entire Agreement of the parties"); Meyerson v. Cohen, 348 So.2d 930, 931 (Fla. 3d DCA 1977) ("In an effort to attach individual liability against Meyerson on the attorneys fees, Cohen argues that the mortgage provision for attorneys fees is incorporated into the purchase and sale agreement which Meyerson signed. We cannot agree. There is no language in the purchase and sale agreement which evinces the slightest intent to incorporate any of the provisions of the mortgage agreement and Cohen cites us to none.").

2. The Proposals for Settlement

As an alternate basis, the trial court found that the Foxes and Fisher Auction were entitled to recover attorney's fees from Haas based on Haas's rejection of their respective proposals for settlement. We affirm the trial court's entitlement determination as to Fisher Auction, but reverse as to the Foxes.

a. Fisher Auction's Proposal for Settlement

Fisher Auction served a proposal for settlement on Haas, offering to settle Haas's crossclaims against Fisher Auction for $1,000. On May 23, 2016, the trial court entered judgment in favor of Fisher Auction on Haas's crossclaims. On June 17, 2016, Fisher Auction filed its motion for attorney's fees, but did not attach a copy of its proposal for settlement to the fees motion. On July 26, 2016, after the trial court bifurcated the issues of fee entitlement and fee amount, Fisher Auction filed a copy of the proposal for settlement.

Without citation to any authority, Haas argues that, under Florida Rule of Civil Procedure 1.442(d) and section 768.79 of the Florida Statutes, proposals for settlement must be filed prior to the time a party seeks to enforce an entitlement to attorney's fees. Therefore, according to Haas, Fisher Auction's proposal for settlement is invalid because Fisher Auction did not attach a copy of its proposal to its motion for attorney's fees. We disagree.

Rule 1.442(d) provides that "[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule." Section 768.79(3) of the Florida Statutes (2016) provides that "[t]he offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section." Plainly, neither the rule nor the statute require that the proposal for settlement be filed either before moving for fees or when moving for fees. Both simply require that the movant file the proposal for settlement when "necessary" to enforce provisions of the rule and the statute. Fla. R. Civ. P. 1.442(d) ; § 768.79(3), Fla. Stat. (2016) ; see Frosti v. Creel, 979 So.2d 912, 915 (Fla. 2008) (recognizing that "neither rule 1.442 nor section 768.79 delineates a specific period within which to file a proposal for settlement").

In Frosti, the Florida Supreme Court found it permissible for a party to file a proposal for settlement after a jury verdict, but before entry of a final judgment, noting that neither rule 1.442 nor section 768.79"unambiguously defines when a proposal for settlement should be filed." Id. at 916. For analogous reasons, we find it permissible for Fisher Auction to have filed its proposal for settlement after the filing of the motion for attorney's fees, but before the hearing on the motion. We therefore reject Haas's argument that Fisher Auction's proposal for settlement was invalid, and affirm the trial court's fee entitlement judgment on this basis. Pursuant to the parties' commendable stipulation on amount, the attorney's fees award should be reduced to $33,635.50, plus interest.

b. The Foxes' Proposal for Settlement

The Foxes, collectively, served on Haas a single, un-apportioned proposal for settlement that stated, in relevant part:

1. The Foxes make this proposal for settlement to Haas.
2. This proposal for settlement is to resolve all claims that were asserted by the Foxes against Haas in this action and all claims that could have been asserted by the Foxes against Haas in this action that arose from the same nucleus of operative facts.
....
4. The Foxes propose to settle this case in exchange for a payment by Haas to the Foxes in the amount of SEVEN HUNDRED NINETY-NINE THOUSAND NINE HUNDRED NINETY-NINE DOLLARS AND NO CENTS (U.S. $799.999.00), to be paid in the manner set forth in paragraph 5.
5. The Foxes and Haas will jointly execute a letter ... directing Newman Guaranty Title Insurance Agency to disburse from its escrow account (i) the sum of $799,999.00 to the Foxes in a check made payable to Isicoff, Ragatz & Koenigsberg and delivered to the Foxes' counsel; and (ii) the sum of $200,001.00 to Haas in a check made payable to Haas Automation, Inc. and delivered to Haas' counsel.

Section 768.79 of the Florida Statutes provides the substantive basis for attorney fee entitlement, and rule 1.442 provides the procedural framework to implement section 768.79's substantive requirements. See Kuhajda v. Borden DairyCo. of Ala., LLC., 202 So.3d 391, 395 (Fla. 2016). Section 768.79(2)(b) requires all proposal for settlement offers to "[n]ame the party making [the offer] and the party to whom [the offer] is being made." § 768.79(2)(b), Fla. Stat. (2016) (emphasis added). In part, rule 1.442(c)(3) implements this requirement by allowing offerors to make a joint offer, so long as the "joint proposal ... state[s] the amount and terms attributable to each party."

Fla. R. Civ. P. 1.442(c)(3). Rule 1.442(c)(3)'s apportionment requirement "must be strictly construed because it, as well as the offer of judgment statute, is in derogation of the common law rule that each party is responsible for its own fees." Pratt v. Weiss, 161 So.3d 1268, 1271 (Fla. 2015) ; Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla. 2003) (holding that in order for a section 768.79 settlement offer to be valid, "an offer from multiple plaintiffs must apportion the offer among the plaintiffs" as provided by rule 1.442(c)(3) ).

The Foxes argue, though, that rule 1.442(c)(4)'s "indirect liability" exception to rule 1.442(c)(3)'s apportionment requirement applies because the two Fox couples were treated as one plaintiff entity throughout the litigation. Rule 1.442(c)(4) excuses the apportionment requirement when the joint offeror "is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract." Fla. R. Civ. P. 1.442(c)(4). In that instance, the offeror is not required to apportion its offer between itself and the other liable party. Id. (providing that "a joint proposal made by ... such a party need not state the apportionment ... as to that party"). But, rule 1.442(c)(4)'s exception is applicable only when the alleged liability of the joint offerors is exclusively indirect as a matter of law, i.e., derivative, vicarious, etc. Id.

The Foxes' joint proposal sought to settle both couples' liquidated damages claims occasioned by Haas's failure to execute the purchase and sale contracts for the two auctioned properties. The Foxes do not have any indirect liability for the Foxes' own claims against Haas. The Foxes' reliance upon rule 1.442(c)(4)'s exception to rule 1.442(c)(3)'s apportionment requirement is misplaced, and the trial court therefore erred in awarding the Foxes attorney's fees on this basis.

3. The Foxes' Request for Admissions

As an alternate basis, the trial court found that the Foxes were entitled to recover attorney's fees from Haas under Florida Rule of Civil Procedure 1.380(c) based on Haas's denial of certain of the Foxes' requests for admission. We find that the trial court did not abuse its discretion in awarding fees on this ground.

Rule 1.380(c) authorizes the trial court to award expenses, including attorney's fees, against a party that fails to admit the truth of a request for admission made under Florida Rule of Civil Procedure 1.370 :

If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys' fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

Here, during discovery, Haas denied several of the Foxes' requests for admission directed at the events that took place at the auction, including Mr. Wadsworth's understanding of, and actions at, the auction. Without specifying which of these denials the trial court was basing its fee entitlement determination on, the trial court awarded the Foxes attorney's fees under rule 1.380(c) at the attorney's fees hearing.

In Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1113 (Fla. 3d DCA 2000), this Court recognized an important distinction between requests for admission that would resolve the ultimate issues in the case if admitted, and requests for admission that simply go to establishing a relevant fact in the case. This Court held that "expenses incurred by a successful litigant as a result of the opposing party's failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case" because "to assess attorneys' fees whenever a party refuses to admit a fact that is the central issue of fact in the case would render prevailing party attorneys' fees the rule, rather than the exception." Id.

Based on Arena Parking, Haas argues that all of the subject requests for admission went to hotly contested issues in the case; hence, the trial court erred in awarding any fees under rule 1.380(c). We disagree. While, as even the Foxes conceded and the trial court found below, certain of the subject requests were most assuredly directed at hotly contested issues, we cannot say that the trial court abused its discretion in awarding attorney's fees based on Haas's denial of at least some of them. We therefore affirm the trial court's determination that the Foxes are entitled to recover attorney's fees under rule 1.380(c). Given the parties' commendable stipulation on the amount of fees awardable based on this particular finding, the attorney's fees award should be reduced to $57,500, plus interest.

III. Conclusion

In appellate case number 3D16-1962, we affirm the trial court's entry of final judgment in favor of the Foxes and Fisher Auction, concluding that the trial court's factual determinations are supported by competent, substantial evidence and that the court committed no legal error.

In appellate case number 3D16-173, we affirm the trial court's determination that the Foxes are entitled to recover attorney's fees from Haas only under rule 1.380(c) ; we reverse those parts of the attorney's fees judgment awarding attorney's fees pursuant to the purchase and sale contracts and the Foxes' proposal for settlement. Pursuant to the parties' stipulation on amount, we remand with instructions that the attorney's fees award be reduced to $57,500, plus interest.

In appellate case number 3D16-174, we affirm the trial court's determination that Fisher Auction is entitled to recover attorney's fees from Haas only pursuant to Fisher Auction's proposal for settlement; we reverse that part of the attorney's fees judgment awarding attorney's fees pursuant to the purchase and sale contracts. Pursuant to the parties' stipulation on amount, we remand with instructions that the attorney's fees award be reduced to $33,635.50, plus interest.

Affirmed in part, reversed in part, remanded with directions.

      Prior to the auction, Haas executed a document acknowledging that Haas's board of directors had authorized Albert Wadsworth to participate in the auction and to execute the necessary documents to bind Haas to all written instruments related to the auction of the properties.

      A blank copy of the purchase and sale contract was provided to all bidders in the bidder packet.

      The General Terms of Conditions of Sale allowed the auctioneer to set the bidding process:
      7. ANNOUNCEMENTS
      All announcements from the Auction Block at the Auction will take precedence over all previously printed material and any other oral statements made; provided however that the Auctioneer shall not be authorized to make any representation or warranty (express or implied) with respect to the Property. In the event of a dispute over the bidding process, the Auctioneer shall make the sole and final decision and will have the right either to accept or reject the final bid or re-open the bidding. Bidding increments shall be at the sole discretion of the Auctioneer.

      The auction was memorialized with an audio and video recording. The trial court admitted the recordings in the lower proceeding over Haas's objections.

      A blank copy of the Bid Acknowledgment Form was given to all bidders in the bidder packet.

      At trial, the auction clerk testified that "12.4M" was not included on the form because that was not the "bid price."

      The record reflects that, after the auction, Haas's lawyer spoke with representatives of Fisher Auction and explained that, "our guy [Wadsworth] screwed up." Notably, at his deposition, Mr. Wadsworth admitted that he knew, prior to the auction, that the Foxes had separately listed the homes with real estate brokers for $11.5 million and $12.9 million, respectively.

      The trial court found that subsequent sales resulted in a net loss of $660,000 to Dr. Steven and Sherri Fox and a net loss of $1,800,000 to Dr. Robert and Helene Fox.

      Newman Title was originally a defendant in this action. The Foxes dropped Newman Title as a defendant after Newman Title wired Haas's $1,000,000 escrow deposit to the Foxes' counsel's trust account.

      Earlier in the proceedings, the trial court entered final summary judgment in favor of the Foxes and Fisher Auction. We reversed, concluding that genuine issues of material fact regarding ambiguities in the Bid Acknowledgment Form precluded summary judgment. Haas Automation Inc. v. Fox, 156 So.3d 505 (Fla. 3d DCA 2014) ("Haas I"). In that appellate case, both Haas and the Foxes moved this Court for an award of appellate attorney's fees, with both parties citing to their respective proposals for settlement and with Haas also relying upon the attorney's fees provision contained in the unexecuted real estate sale contracts. Because Haas prevailed in having the summary judgment reversed, this Court granted Haas's motion for appellate attorney's fees, conditioned upon Haas ultimately prevailing in the case on remand. Our order did not specify the grounds for conditionally granting Haas's motion for fees.

      See Networkip, LLC v. Spread Enters., 922 So.2d 355, 358 (Fla. 3d DCA 2006) ("A third party is considered a beneficiary to the contract only if the contracting parties intend to primarily and directly benefit the third party.... [T]he test is whether the parties to the contract intend that a third person be benefited by the contract ....").

      Haas does not challenge the trial court's award of taxable costs contained in both attorney's fees judgments.

      Appellate courts generally review a trial court's award of attorney's fees for abuse of discretion. See US Acquisition, LLC v. Tabas, Freedman, Soloff, Miller & Brown, P.A., 87 So.3d 1229, 1234 (Fla. 4th DCA 2012). Where the award of contractual attorney's fees hinges on the interpretation of a contractual provision, however, we review that provision as a pure matter of law, de novo . Id;see Point E. Four Condo. Corp. v. Zevuloni & Assocs., Inc., 50 So.3d 687, 687 (Fla. 4th DCA 2010).

      "An appellate court applies the de novo standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 because a 'proposal for settlement is in the nature of a contract.' " Miami-Dade Cty. v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006) (quoting Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002) ).

      Because the Foxes' joint proposal failed to apportion the settlement demand between the two Fox couples, we need not, and therefore do not, address whether it was necessary to apportion the settlement demand between each of the four Fox plaintiffs. See Cobb v. Durando, 111 So.3d 277, 278 (Fla. 2d DCA 2013) (setting aside an award of attorney's fees pursuant to a proposal for settlement for failure to apportion liability between two offerors-spouses in a breach of contract action against a roofer-as required by rule 1.442(c)(3) ).

      The standard of review of the grant or denial of a request for attorney's fees under rule 1.380(c) is abuse of discretion. See Maynoldi v. Archbishop Coleman F. Carroll High School, Inc., 62 So.3d 1149, 1150 (Fla. 3d DCA 2011).

      Ordinarily, this Court would remand for the trial court to determine upon which of the denials its entitlement determination was based, and to make an award only with respect to those denials. See Arena Parking, 768 So.2d at 1113 ("[W]e reverse and remand on the attorney's fee issue for the trial court to apportion and make an award to Arena Parking for those fees and expenses which were incurred in proving the other matters which the defendants should have admitted as provided under rule 1.380(c).") (footnote omitted). In light of the parties' stipulation on the amount of fees given the trial court's ruling on this issue, however, we find this unnecessary.


author: SLEET, Judge.

text:
    STATE of Florida, Petitioner, v. William Charles SPUHLER, Respondent.
    Case No. 2D17-3152
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Petitioner.
    Kathleen A. Smith, Public Defender, and Elizabeth Heffington, Assistant Public Defender, Fort Myers, for Respondent.
   SLEET, Judge.

The State seeks certiorari review of the order denying its motion seeking the imposition of release conditions on William Spuhler pursuant to Florida Rule of Criminal Procedure 3.212(d). Because the trial court did not depart from the essential requirements of law in denying the State's motion, we deny the petition, but we write to address the availability of release conditions for defendants who are incompetent but do not qualify for involuntary commitment under section 916.13, Florida Statutes (2016).

Spuhler was charged with driving while license suspended and driving while license suspended causing death, and he was determined to be incompetent and not restorable in July 2016. The parties initially agreed that he would be placed on one year of conditional release. As the end of that year approached, the State sought an additional period of conditional release pursuant to rule 3.212(d). The trial court denied its motion, determining that because Spuhler did not meet the criteria for commitment under section 916.13, conditional release was not available and the State's only remedy was under the Baker Act, if appropriate.

"[C]ertiorari review is proper when it is alleged that the circuit court's interpretation of a statute violates clearly established law or when it fails to follow the dictates of a statute[ ] and the error is sufficiently egregious as to result in a miscarriage of justice." McCray v. State, 230 So.3d 495, 497 (Fla. 2d DCA 2017) (quoting In re Asbestos Litig., 933 So.2d 613, 616 (Fla. 3d DCA 2006) ); see also Abreu-Gutierrez v. James, 1 So.3d 262, 266 (Fla. 4th DCA 2009) (explaining that the proper method to challenge a nonfinal commitment order is by certiorari).

In its motion, the State sought imposition of release conditions pursuant to rule 3.212(d), which provides:

If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions. The court may order that the defendant receive outpatient treatment at an appropriate local facility and that the defendant report for further evaluation at specified times during the release period as conditions of release.

In his response, Spuhler contends that rule 3.212(d)"is only relevant when a defendant has the possibility of being restorable." This is incorrect. See McCray, 230 So.3d at 497 ; Dep't of Children & Family Servs. v. Barnett, 124 So.3d 430, 433 (Fla. 2d DCA 2013) (concluding that the trial court "should consider whether appropriate conditions may again be lawfully imposed under rule 3.212(d)" when releasing a defendant who was ineligible for further commitment under section 916.13 because he was not restorable to competency); Dep't of Children & Families v. C.Z., 201 So.3d 78, 79 (Fla. 3d DCA 2015) (stating that because the respondent was ineligible for involuntary civil commitment under the Baker Act, "[b]y default, the only option the trial court had available to provide placement ... was through conditional release, pursuant to ... [rule] 3.212(d)"); Abreu-Gutierrez, 1 So.3d at 267 (recommending that the trial court base the defendant's release on conditions imposed pursuant to rule 3.212(d) if it determined on remand that he could not be restored to competency).

We agree with the State's argument that the trial court erred in concluding that the State was limited to civil commitment proceedings and was not entitled to the imposition of release conditions under rule 3.212(d) solely because Spuhler could not be restored to competency. "[T]he proper course when an incompetent defendant does not meet the criteria for commitment[ ] and cannot be restored to competency[ ] is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant 'on appropriate conditions' as provided in [r]ule 3.212(d)." McCray, 230 So.3d at 497 (quoting Dep't of Children & Family Servs. v. Amaya, 10 So.3d 152, 157 (Fla. 4th DCA 2009) ). However, because this ruling does not amount to a departure from the essential requirements of law, we deny the State's petition.

"A departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. (quoting Fassy v. Crowley, 884 So.2d 359, 363-64 (Fla. 2d DCA 2004) ). "Unlike the application of incorrect law, 'a misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level,' i.e., 'a violation of a clearly established principle of law resulting in a miscarriage of justice.' " Mahany v. Wright's Healthcare & Rehab. Ctr., 194 So.3d 399, 402 (Fla. 2d DCA 2016) (quoting Fassy, 884 So.2d at 364 ). Although the trial court misinterpreted rule 3.212(d) to the extent that it determined that the rule was inapplicable to nonrestorable defendants, it considered and applied the correct rules and statutes applicable to a motion seeking imposition of release conditions on an incompetent defendant.

Furthermore, rule 3.212(d) does not mandate that a trial court impose release conditions. The language of the rule is permissive: "If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions." Fla. R. Crim. P. 3.212(d) (emphasis added). It is within the trial court's discretion to "exercise[ ] its informed judgment to craft a solution balancing [the defendant's] liberty interests with the need to provide for his own protection, as well as that of the public." McCray, 230 So.3d at 497.

Accordingly, the petition is denied.

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: MORRIS, Judge.

text:
    Michael Gene KANIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-687
    District Court of Appeal of Florida, Second District.
    Opinion filed April 11, 2018
    Howard L. Dimmig, II, Public Defender, and Mark J. O'Brien, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Michael Kania appeals his convictions after a jury trial for traveling to meet a minor after use of a computer, see § 847.0135(4), Fla. Stat. (2012), and unlawful use of a two-way communications device, see § 934.215, Fla. Stat. (2012). We affirm his conviction and sentence for traveling to meet a minor, but we reverse his conviction and sentence for unlawful use of a two-way communications device.

Kania argues that his two convictions violate double jeopardy because they were based on acts that occurred within the same criminal episode and the elements of unlawful use of a two-way communications device are subsumed within the traveling to meet a minor count. He contends that only the traveling count should stand. He did not raise this specific issue below, but a double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. See Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014) (citing Bell v. State, 122 So.3d 958, 959 n.1 (Fla. 2d DCA 2013) ).

In Mizner, this court held that the offense of unlawful use of a two-way communications device under section 934.215 is subsumed within the offense of traveling to meet a minor under section 847.0135. 154 So.3d at 399. This court further held that because the State charged single counts of each offense during the three-day period at issue and because the State charged each of the offenses over the same time period, the evidence could not "support convictions for each offense as occurring during a separate criminal episode." Id. at 400. "The State did not charge the offenses as occurring during separate criminal episodes; rather, it charged them as occurring during a single criminal episode." Id. This court vacated the conviction for unlawful use of a two-way communications device. Id.

In Rubio v. State, 233 So.3d 482 (Fla. 2d DCA 2017), this court relied on Mizner and held that the defendant's convictions for traveling to meet a minor and unlawful use of a two-way communications device violated double jeopardy "because the amended information charged [the defendant] with committing both of those offenses within the same time period, i.e., 'on or between June 9, 2013[,] and June 11, 2013.' " Id. at 483 (second alteration in original); see e.g., Bermudez v. State, 235 So.3d 1057, 1057 (Fla. 2d DCA 2018) ; Holt v. State, 173 So.3d 1079, 1084 (Fla. 5th DCA 2015) ; Hamilton v. State, 163 So.3d 1277, 1279 (Fla. 1st DCA 2015).

Here, the charge against Kania for unlawful use of a two-way communications device was subsumed within the charge of traveling to meet a minor, and both offenses were charged as having occurred during the same time period, i.e., "on or about June 11, 2013." In accordance with our prior decisions, we conclude that Kania's convictions violate double jeopardy and we reverse Kania's conviction and sentence for unlawful use of a two-way communications device with directions that the conviction be vacated. We have considered the other issues raised on appeal and have found them to be without merit.

We also note that the jury found Kania guilty of the additional offense of use of a computer to solicit a child, see § 847.0135(3), but the trial court correctly recognized that the prohibition against double jeopardy prevented Kania from being adjudicated and sentenced on both traveling to meet a minor and use of a computer to solicit. See State v. Shelley, 176 So.3d 914, 919 (Fla. 2015) (approving this court's decision in Shelley v. State, 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014) ). Because we are affirming the traveling conviction, on remand the trial court shall vacate the conviction for use of a computer to solicit a child.

Affirmed in part; reversed in part; remanded.

BLACK and BADALAMENTI, JJ., Concur.

      He was sentenced to seven years in prison followed by eight years' sex offender probation on the traveling count and to five years' sex offender probation on the unlawful use count, to run concurrently with the probation on the traveling count.


author: LINDSEY, J.

text:
    WINDHAVEN INSURANCE COMPANY, Petitioner, v. BISCAYNE REHAB CENTER, INC., Martinez Chiropractic, LLC, Palmetto Wellness Clinic, LLC, Progressive Rehabilitation and Orthopedic Services, LLC, and West Kendall Rehab Center, Inc., Respondents.
    Nos. 3D18-0250
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018.
    Akerman LLP, Marcy Levine Aldrich, Nancy A. Copperthwaite, and Ross E. Linzer, for petitioner.
    The Coyle Law Firm, P.A., and Melisa Lee Coyle, for respondents.
    Before EMAS, FERNANDEZ and LINDSEY, JJ.
    ON CONFESSION OF ERROR
   LINDSEY, J.

In this petition for writ of certiorari, Windhaven Insurance Company ("Windhaven") seeks reinstatement of eighteen consolidated appeals which were dismissed by the appellate division of the circuit court for failure to timely file an initial brief. Upon commendable confession of error by Respondents Biscayne Rehab Center, Inc. Martinez Chiropractic, LLC, Palmetto Wellness Clinic, LLC and West Kendall Rehab Center, Inc., and because the appellate division of the circuit court entered conflicting orders and failed to afford Windhaven notice that the appeals would be dismissed, we grant the petition and quash the order of dismissal.

In late 2016, Windhaven filed notices of appeals of summary judgments entered by the county court in Respondents' favor. The appeals were subsequently consolidated by an administrative judge of the appellate division of the circuit court. On February 23, 2017, April 26, 2017, June 29, 2017, and September 18, 2017, Windhaven filed unopposed motions for extension of time to file its initial brief. Each of the four orders granting these extensions is stamped with the notation: "Failure to comply with this order may result in dismissal of the appeal or other sanction." The fourth order granted an extension through October 5, 2017.

On October 4, 2017, just one day prior to the deadline imposed by the fourth order granting an extension, Windhaven filed a fifth motion for extension of time to file its initial brief. On October 5, 2017, Respondents filed their objection to Windhaven's fifth motion and moved for dismissal of the appeals, contending that the initial brief had not been filed by the October 5, 2017 deadline and no motion for continuance had been granted. Moreover, Respondents requested dismissal "based upon the undue delay of [Windhaven] in filing its [i]nitial [b]rief."

Thereafter, on October 6, 2017, an associate administrative judge of the appellate division granted Windhaven's fifth motion and entered an order extending the time through December 4, 2017 for the filing of the initial brief. The extension order is stamped with the notation: "No further extensions will be granted and failure to comply with this order will result in the dismissal of this appeal."

On October 20, 2017, Windhaven filed its response in opposition to Respondents' motion to dismiss the appeals, requesting that the motion be denied as moot and frivolous in light of the fact that an order granting Windhaven's fifth motion for an extension through December 4, 2017 had already been entered. On October 25, 2017, just five days after Windhaven had filed its response in opposition to Respondents' motion to dismiss the appeals, the appellate panel entered an unelaborated order granting Respondents' motion to dismiss Windhaven's appeals.

On November 6, 2017, Windhaven filed a motion for rehearing and clarification, requesting that the appellate panel vacate the order of dismissal on the grounds it conflicts with the October 6, 2017 extension order entered by the associate administrative judge and violates Windhaven's due process rights. On November 8, 2017, Respondents filed their response to the motion for rehearing and clarification, wherein they conceded that the appellate panel erred procedurally and should have issued a direction to file the initial brief with a warning that failure to do so would result in dismissal.

On December 4, 2017, Windhaven filed its initial brief. On December 14, 2017, Respondents filed a motion for extension of time to file their answer brief. On December 18, 2017, another associate administrative judge of the appellate division granted an extension through February 24, 2018 for the filing of the answer brief. On January 23, 2018, the appellate panel, in an unelaborated order, denied Windhaven's motion for rehearing and clarification. This petition for writ of certiorari follows.

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) to review final orders of circuit courts acting in their review capacity. In considering a petition for second-tier certiorari review, this Court "exercises its discretion to grant review only when the circuit court has not afforded procedural due process or has violated a clearly established principle of law resulting in a miscarriage of justice." I Creatives, Inc. v. Premier Printing Solutions, Inc., 163 So.3d 606, 607 (Fla. 3d DCA 2015) (citing Ivey v. Allstate, 774 So.2d 679, 680 (Fla. 2000) ).

" Florida Rule of Appellate Procedure 9.300(b) provides for tolling proceedings pending disposition of certain motions. A motion for extension of time to file a brief tolls the time for filing until the motion is ruled on." Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 397 (Fla. 3d DCA 2009) (citing Kuznik v. State, 604 So.2d 37 (Fla. 2d DCA 1992) ).

Here, Windhaven filed its fifth motion for extension of time on October 4, 2017, just one day prior to the October 5, 2017 deadline imposed by the order granting the fourth motion for an extension. Respondents argued that Windhaven's appeals should be dismissed because the initial brief had not been filed by October 5, 2017 and no motion for continuance had been granted. However, pursuant to Rule 9.300(b), the time was tolled by the filing of Windhaven's fifth motion-on October 4, 2017-until disposition of that motion.

Although an appeal may be dismissed for failure to file an initial brief, it is well settled "that dismissal of an appeal without a prior notice warning of imminent dismissal is a denial of due process." I Creatives, Inc., 163 So.3d at 607-608 ; United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004) ("[T]he great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fair warning, in advance, that this consequence may flow from a late filing."); see also Nicaragua Trader Corp., 19 So.3d at 397 ("The failure to timely file a brief has not been deemed serious enough to warrant the sanction of dismissal."). Although the appellate rules do not specify the number of days of notice that must be given prior to granting a motion to dismiss an appeal, this Court has indicated that a ten-day warning is likely to be sufficient. I Creatives, Inc., 163 So.3d at 607 (citing United Auto. Ins. Co., 870 So. 2d at 869 n.3 ).

Here, the appellate panel gave Windhaven no warning that the appeals would be dismissed. As in Nicaragua Trader Corp., the first four orders granting extensions of time for filing the initial brief stated that "failure to comply with this order may result in dismissal ...." 19 So.3d at 397 (quashing the dismissal order where "the record shows no order specifically warning the appellant that his appeal would be dismissed if the brief was not filed within ten days"). In contrast, the fifth extension order stated that "failure to comply with this order will result in the dismissal of this appeal." (Emphasis added).

The dismissal order and the order denying Windhaven's motion for rehearing and clarification entered by the appellate panel both conflict with the fifth extension order entered by the associate administrative judge. Moreover, this fifth extension order was entered prior to the entry of either of the foregoing orders. In addition, Windhaven filed its initial brief in compliance with the fifth extension order's deadline of December 4, 2017. Because Windhaven was given no notice of imminent dismissal of its appeals, Windhaven was deprived of procedural due process and we "conclude that there has been a departure from the essential requirements of law, as the law in this area is well-established." United Auto. Ins. Co., 870 So.2d at 869 ; accord Miami-Dade Med. Ctrs., Inc. v. MGA Ins. Co., 908 So.2d 1175 (Fla. 3d DCA 2005).

Accordingly, Respondents' confession of error is well taken. Therefore, we grant the petition for writ of certiorari, quash the order of dismissal, and remand for reinstatement of the appeals.

Petition granted; order quashed.

      Given the flurry of activity in the case below in a relatively short period of time which extended over the end of the year holiday season, perhaps the relevant filings and orders were unavailable to the appellate panel at the time it entered its orders dismissing Windhaven's appeals and denying Windhaven's motion for rehearing and clarification of the order of dismissal.


text:
    Courtney S. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3243
    District Court of Appeal of Florida, First District.
    April 17, 2018
    David J. Joffe, Joffe Law, P.A., Ft. Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Courtney S. Brown ("Appellant") appeals her convictions and sentences for attempted second-degree murder, shooting at or into a building, possession of a firearm by a convicted felon, and throwing a deadly missile into a building. We affirm in all respects and write only to explain why the trial court properly denied Appellant's motion for judgment of acquittal.

Appellant, Richard Golden, and LaPorshia Patterson were charged with attempted first-degree murder (count I) and shooting at or into a building (count II). Appellant also was charged with possession of a firearm by a convicted felon (count III) and throwing a deadly missile into a building (count V).

During the state's case-in-chief, testimony was presented that LaPorshia Patterson was involved in a fistfight with Erica Kimble in the presence of Appellant and her boyfriend, Richard Golden. Later that evening, Golden picked up Appellant and drove her to a trailer. Ebony Walker, Kianna Powell, Erica Kimble, Paradise Kimble, Jermaine Walker, and Johnayshin Wade lived in the trailer and were asleep. Appellant got out of Golden's car and repeatedly knocked on the door. When no one answered, Golden saw Appellant throw something through the trailer's window. Ebony Walker and Kianna Powell woke up after a brick was thrown through the kitchen window. They went to the door and saw Appellant getting into the front passenger seat of Golden's car.

Appellant accused someone of hitting her at a nightclub and demanded that they come outside. When Walker responded that she did not know what Appellant was talking about, Appellant reached across Golden and started shooting repeatedly. Walker, Powell, and Golden identified Appellant as the shooter. After Appellant started shooting, a truck came around the corner, and Powell saw LaPorshia Patterson shooting from the truck. After the shooting, Walker read the following post on Patterson's Facebook page: "Dese hoes feeln like dey bullet proof. Bang, bang in my Gotti voice." Appellant responded, "Pow. Damn sho can show em better then I can tell em."

Officer Federico of the Tallahassee Police Department testified that he stopped a vehicle driven by Golden. Appellant was in the front passenger seat, and Courtney Barnes and Cortlandt Barnes were in the back seat. A video and audio recording was played of a conversation between Appellant and Golden in the back seat of Federico's patrol car. Federico testified that he heard Golden tell Appellant that she had gunpowder on her hands and that Appellant responded, "That's what I'm saying, like." Afterwards, Golden told Federico that he was the shooter. At trial, Golden admitted initially telling the police that he had the gun, that he was the only person doing the shooting, and that Appellant had nothing to do with it, but claimed that he did this to give Appellant time to clean the gunpowder off her hands.

After the state rested, defense counsel moved for a judgment of acquittal, which was denied by the trial court. During the defense's case, Courtney Barnes, Cortlandt Barnes, and Appellant testified that Richard Golden was the shooter and that Appellant was not involved in the shooting. After the defense rested, defense counsel renewed the motion for judgment of acquittal, which again was denied by the trial court. The jury returned a verdict finding Appellant guilty of the lesser included offense of attempted second-degree murder as to count I and guilty as charged as to counts II, III, and V with the specific finding that Appellant actually possessed and discharged a firearm. The trial court adjudicated Appellant guilty and sentenced her to concurrent prison terms of thirty years with a twenty-year mandatory minimum on count I and fifteen years on counts II, III, and V. This appeal followed.

On a motion for judgment of acquittal, the trial court should not grant the motion unless the evidence, viewed in a light most favorable to the state, does not establish a prima facie case of guilt. Dupree v. State , 705 So.2d 90, 93 (Fla. 4th DCA 1998) (en banc). Because a motion for judgment of acquittal raises an issue of law, the court's ruling on the motion is reviewed under the de novo standard. Jones v. State , 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). Like the trial court, the appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the state. Id.

In this case, Appellant claims that the trial court erred in denying her motion for judgment of acquittal. In doing so, Appellant asserts that (1) her convictions were based wholly on circumstantial evidence; (2) the evidence was insufficient to establish Appellant's guilt because the witnesses told conflicting stories concerning who actually did the shooting; and (3) none of the witnesses, except Appellant, could testify as to Appellant's intent. The state correctly responds that the evidence against Appellant was not wholly circumstantial because (1) three eyewitnesses, Ebony Walker, Kianna Powell, and Richard Golden, testified that they saw Appellant holding and firing a gun; and (2) one eyewitness, Richard Golden, testified that he saw Appellant throw the brick through the window of the trailer.

Furthermore, the mere fact that there was conflicting witness testimony does not justify a judgment of acquittal because any conflicts in the evidence must be viewed in a light most favorable to the state. See Nelson v. State , 753 So.2d 648, 649 (Fla. 3d DCA 2000) ("On review, the appellate court must view the conflicting evidence in a light most favorable to the state."). Appellant is improperly asking this court to reweigh the evidence and assess the credibility of the witnesses. See State v. Konegen , 18 So.3d 697, 700 (Fla. 4th DCA 2009) ("Where there is contradictory, conflicting testimony, 'the weight of the evidence and the witnesses' credibility are questions solely for the jury,' and 'the force of such conflicting testimony should not be determined on a motion for judgment of acquittal.' ").

Finally, the state correctly responds that issues of intent are generally not resolved on a motion for judgment of acquittal. See Manuel v. State , 16 So.3d 833, 835 (Fla. 1st DCA 2005) ("Because direct evidence of intent is rare, and intent is usually proven through inference, 'a trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.' "). Viewed in a light favorable to the state, Appellant's actions of traveling to the victims' trailer in the middle of the night following a prior dispute, throwing a brick through the window of the trailer when the occupants refused to come out, repeatedly firing a gun into the occupied trailer, and making incriminating comments on Facebook after the shooting were legally sufficient to establish that (1) Appellant intentionally committed an act that was imminently dangerous to another and demonstrated a depraved mind without regard for human life so as to support a conviction for attempted second-degree murder in violation of section 782.04(2), Florida Statutes ; (2) Appellant wantonly or maliciously threw a deadly missile into a building in violation of section 790.19, Florida Statutes ; and (3) Appellant wantonly or maliciously shot into a building in violation of section 790.19, Florida Statutes. Accordingly, the trial court properly denied Appellant's motion for judgment of acquittal.

AFFIRMED.

Jay, Winsor, and M.K. Thomas, JJ., concur.