text:
    Toland Jerome BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5582
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, for Appellee.
   Per Curiam.

Appellant Toland J. Bonner raises three issues in this criminal appeal. First, he contends that it was error under Williams v. State , 186 So.3d 989 (Fla. 2016), and Gartman v. State , 197 So.3d 1181 (Fla. 1st DCA 2016), for his sentences for robbery with a firearm (Count 1) and attempted robbery with a firearm (Counts 2 through 6), to be imposed consecutively to each other under section 775.087(2)(d), Florida Statutes (2015), the "10-20-Life" statute, because the crimes arose from a single criminal episode and the firearm was not discharged. Second, he contends that the trial court erred by including a mandatory minimum term in his sentence for aggravated battery while actually possessing a firearm (Count 8), because the mandatory minimum term was not orally pronounced at the sentencing hearing. Third, he contends that the judgment and sentence erroneously labeled the convictions for attempted robbery with a firearm (Counts 2 through 6) as first-degree felonies. For the reasons set forth below, we vacate the sentences and remand for resentencing and to correct a scrivener's error.

I.

On January 6, 2015, six friends gathered for a birthday dinner at Los Rancheros Mexican Restaurant in Pensacola. After dinner, the friends were hanging out in the parking lot when Bonner approached them with a firearm and demanded money. Bonner moved towards the first victim and pointed the firearm directly at him, within inches from his head, and demanded money. Once Bonner realized the victim did not have any money, he moved on. He walked up to each victim and pointed the firearm directly at each one, except he pointed the firearm generally into a truck where two victims were sitting. One victim threw cash on the ground, and another victim was struck with the firearm. At no point was the firearm discharged.

The jury found Bonner guilty of the armed robbery, attempted armed robbery, and aggravated battery. For each of these counts, the jury found that Bonner actually possessed a firearm. The jury also found Bonner guilty of fleeing or attempting to elude a law enforcement officer and resisting arrest without violence.

The trial court sentenced Bonner to twenty years for the armed robbery and ten years for each conviction of attempted armed robbery, all to run consecutively. The trial court also imposed a consecutive sentence of ten years for the aggravated battery. The court did not mention a mandatory minimum term for this count during the hearing. The trial court imposed a sentence of five years for fleeing or attempting to elude a law enforcement officer and one year for resisting arrest without violence, to run concurrently with the sentence of ten years for the aggravated battery.

While this appeal was pending, and before Bonner filed a brief, he filed a rule 3.800(b)(2) motion to correct two sentencing errors. The first error alleged was the imposition of consecutive mandatory minimum sentences of ten years for the armed robbery and attempted armed robbery convictions. He argued that imposing these mandatory minimum sentences as consecutive to each other was impermissible because the offenses in this case arose from or were part of a single criminal episode, and no evidence showed-and the jury did not find-that any firearm was discharged in the course of any of those crimes. The second error alleged was that the sentence for aggravated battery with a firearm included a mandatory minimum term of ten years, pursuant to section 775.087(2), but the trial court did not orally impose any mandatory minimum term as part of that sentence. The trial court denied the motion.

II.

The first issue is whether the consecutive sentences for multiple firearm offenses are proper. In Williams , the Florida Supreme Court held that "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." 186 So.3d at 993 ; accord Walton v. State , 208 So.3d 60, 64 (Fla. 2016) ( Walton II ), quashing Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013) ( Walton I ). The supreme court further held that "[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Williams , 186 So.3d at 993.

Here, there is no dispute that Bonner did not discharge the firearm. This Court and other district courts have consistently reversed and remanded cases for resentencing where trial courts have sentenced defendants to consecutive terms for multiple firearms offenses even when a firearm was not discharged.

But this appeal is slightly different because it turns on whether Bonner's actions constituted a single criminal episode, i.e., whether the multiple firearm offenses were committed contemporaneously. The State relies on a series of cases to establish distinct acts but they are distinguishable because each involved discharging a firearm. In contrast, where a defendant does not fire a firearm, stacking consecutive sentences has generally not been authorized. Some older caselaw involved situations where multiple offenses within a single criminal episode justified consecutive sentences, such as a capital felony committed with a non-capital felony, or when the imposition of mandatory minimum sentences is authorized under two separate and distinct statutes. None of these provides definitive guidance in this case.

Bonner pointed the firearm at, threatened, and attempted to take (or took) money multiple times as to six different victims, all at a single location within a short amount of time (no more than five minutes). His course of conduct is similar to that used against the multiple victims in Palmer v. State , 438 So.2d 1 (Fla. 1983) (brandishing firearm in funeral home filled with mourners, but pointing the gun directly at one victim), where stacking of consecutive sentences was not permitted. Indeed, it is close to that in Walton II , which quashed our en banc decision in Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013). See also State v. Ames , 467 So.2d 994 (Fla. 1985) ; Lanham v. State , 60 So.3d 532 (Fla. 1st DCA 2011) ; Roberts v. State , 990 So.2d 671 (Fla. 4th DCA 2008) ; Perry v. State , 973 So.2d 1289 (Fla. 4th DCA 2008) ; Irizarry v. State , 946 So.2d 555 (Fla. 5th DCA 2006). Accordingly, we hold that Bonner's course of conduct occurred within a single criminal episode, and because the firearm was not discharged, the consecutive sentences are impermissible.

The second issue is whether the trial court erred by including a mandatory minimum term in his sentence for aggravated battery while actually possessing a firearm because the mandatory minimum term was not orally pronounced at the sentencing hearing. The State concedes that Bonner is entitled to a new sentencing hearing so that he can be present when the trial court announces the mandatory minimum.

In Dunbar v. State , the 8trial court orally pronounced a life sentence for robbery with a firearm, but failed to include in its oral pronouncement the ten-year mandatory minimum term required by section 775.087(2), Florida Statutes, for the offense. 89 So.3d 901, 903 (Fla. 2012). Later that day and without the parties present, the trial court entered a written sentencing order including the mandatory minimum term. Id. The lead opinion explained that "a defendant's 'right to be present extends to the hearing where her sentence will be reconsidered' because sentencing is 'a critical stage of every criminal proceeding.' In fact, the right to be present at sentencing is 'explicitly provided in the Florida Rules of Criminal Procedure' which requires that '[i]n all prosecutions for crime the defendant shall be present ... at the pronouncement of judgment and the imposition of sentence.' " Id. at 907 (Polston, J.) (quoting Jackson v. State , 767 So.2d 1156, 1160 (2000) and citing Fla. R. Crim. P. 3.180(a) ) (internal citations omitted).

Likewise here, although the trial court was required to impose the mandatory minimum sentence pursuant to section 775.087(2) regardless of the oral pronouncement, Bonner had the right to have the mandatory minimum announced at the hearing. The trial court properly declined to strike the required mandatory minimum sentence, but the case needs to be remanded for a sentencing hearing for the trial court to announce the mandatory minimum in Bonner's presence.

The third issue is whether the designation on the judgment and sentence that the convictions for five counts of attempted armed robbery with a firearm are first-degree felonies, instead of second degree felonies, is a reversible error. There is no question that the designations are incorrect and need to be corrected. While armed robbery is a first-degree felony, see section 812.13(2)(a), Fla. Stat. (2017) ("If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree ...."), attempted armed robbery is a second-degree felony. See § 777.04(4)(c), Fla. Stat. (2017) ("[I]f the offense attempted, solicited, or conspired to is a life felony or a felony of the first degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the second degree ...."). The question is whether the error can be corrected through this appeal.

"Sentencing errors" are "harmful errors in orders entered as a result of the sentencing process." Jackson v. State , 983 So.2d 562, 572 (Fla. 2008) (citation omitted). They are "related to the ultimate sanctions imposed, whether involving incarceration, conditions of probation, or costs," id. at 573, and can be corrected on direct appeal only if they are preserved in some way, either through a contemporaneous objection or the filing of a motion under rule 3.800(b)(2) during the pendency of the appeal. Id. at 569. This special preservation rule applies to scrivener's errors and fundamental errors alike. Id. (regarding fundamental errors); Latson v. State , 193 So.3d 1070, 1071 (Fla. 1st DCA 2016) (regarding scrivener's errors).

The incorrect labeling of the offenses in this case is not harmful and does not affect the ultimate sanction imposed; for this reason, the Court has corrected this type of error in other cases. See Danzy v. State , 603 So.2d 1320, 1323 (Fla. 1st DCA 1992) ("Accordingly, the trial court is instructed to correct this judgment on remand to reflect that the offenses to which Danzy pleaded are second degree felonies, not first degree felonies."). Because the case is being remanded for resentencing, the trial court should address the error for the sake of efficiency.

III.

In conclusion, the case is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

Ray, Makar, and Winsor, JJ., concur.

      See Simmons v. State , 215 So.3d 162, 163 (Fla. 1st DCA 2017) (noting that concurrent sentences were required for convictions of second-degree murder and attempted second-degree murder based on shooting of two people by co-defendant because jury found that appellant only possessed a firearm); Clark v. State , 208 So.3d 853, 854 (Fla. 1st DCA 2017) (holding that consecutive sentences were improper for convictions of attempted armed robbery and aggravated battery because the two offenses arose from the same criminal episode and jury found that appellant only possessed, as opposed to discharged, a firearm); Gartman , 197 So.3d at 1182 (holding that no portion of the sentence for conviction of possession of a firearm by a convicted felon could run consecutive to sentence for conviction of armed robbery); Mobley v. State , 197 So.3d 648, 648-49 (Fla. 1st DCA 2016) (holding that consecutive sentences were improper for convictions of two counts of aggravated assault with a firearm and possession of a firearm by a convicted felon because the firearm was not discharged).

      See State v. Sousa , 903 So.2d 923 (Fla. 2005) (Sousa II ); State v. Christian , 692 So.2d 889 (Fla. 1997) ; State v. Thomas , 487 So.2d 1043 (Fla. 1986).

      See State v. Ames , 467 So.2d 994, 996 (Fla. 1985) (disapproving stacking two mandatory minimum terms for armed burglary, armed robbery, and armed sexual battery of one victim, without firing weapon, because they occurred during a single, continuous criminal episode); Lanham v. State , 60 So.3d 532, 532 (Fla. 1st DCA 2011) (disapproving stacking two mandatory minimum terms for assaulting two victims with a firearm because the offenses arose out of the same criminal episode-insufficient temporal or spatial break-and appellant displayed, but never fired, his weapon), receded from in Walton I , 106 So.3d 522 ; Roberts v. State , 990 So.2d 671, 674-75 (Fla. 4th DCA 2008) (disapproving stacking four life sentences for sexual battery with a firearm, armed kidnapping, burglary with an assault or battery, and armed robbery, where firearm was used, but not fired, and offenses were committed within the same criminal episode-one victim, one place, and over forty-five minutes to an hour); Perry v. State , 973 So.2d 1289, 1289-90 (Fla. 4th DCA 2008) (disapproving stacking minimum mandatories for kidnapping, carjacking, sexual battery, and aggravated fleeing and eluding where offenses did not occur during different criminal episodes and appellant used, but never fired, his gun); Irizarry v. State , 946 So.2d 555, 558 (Fla. 5th DCA 2006) (finding appellant's pointing of a gun at two movie theatre employees did not authorize consecutive minimum mandatories because appellant never fired his weapon or harmed anyone).

      See, e.g. , Downs v. State , 616 So.2d 444, 445 (Fla. 1993) (stating "[w]hen the same crime is committed in a nonsimultaneous manner or when different crimes are committed in the same episode, however, minimum mandatory sentences can be consecutive," and affirmatively answering the question of whether a trial judge can stack mandatory minimum sentences in cases involving capital felonies together with non-capital felonies); McDonald v. State , 564 So.2d 523, 525 (Fla. 1st DCA 1990) (approving stacking a five-year mandatory minimum sentence on a drug-trafficking charge with a three-year minimum for using a firearm during an aggravated assault because, "although appellant's separate crimes occurred in a single criminal episode, the nature of his crimes subjected him to the imposition of mandatory minimum sentences under two separate and distinct statutes").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ira L. LANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1982
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Ira L. Lane, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Ira L. Lane appeals the summary denial of his sworn motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the postconviction court failed to attach any court records to its order to refute Lane's motion, we reverse and remand for further proceedings.

Lane was convicted after trial of second-degree murder, false imprisonment, and robbery; and his convictions were affirmed by this court on direct appeal. See Lane v. State , 979 So.2d 240 (Fla. 5th DCA 2008). In his present motion, Lane requested that DNA testing be performed on a Schwinn bicycle that he alleged was used by the murderer to fracture the victim's skull, resulting in his death. Lane admits that he and the victim engaged in a physical altercation in the victim's apartment and that he left the victim lying there in a fetal position, with his hands and feet bound. Lane alleged that the crime scene photos admitted into evidence at his trial showed that the victim's body was found not in a fetal position but with the bicycle on top of him. Lane asserted, however, that the victim was alive when Lane left, and he denied using the bicycle during the altercation. Lane further averred in his motion that: (1) he is innocent of the murder; (2) according to the testimony from the medical examiner, the victim died from blunt force trauma to the head and neck area; (3) the victim was found by the police lying face up, without his hands and feet bound; (4) one of the witnesses at trial testified to seeing other individuals entering and leaving the victim's apartment long after Lane had last left the apartment; (5) DNA testing was not previously performed on the bicycle; (6) the bicycle was last in the possession of the Orlando Police Department's Evidence Division; and (7) DNA testing of the bicycle will exonerate Lane and provide forensic evidence of the identity of the murderer.

Rule 3.853(c) procedurally provides that if the postconviction court concludes that the motion for DNA testing is facially sufficient then, as was done here, it must order the prosecuting attorney to respond to the motion. Upon receipt and review of the State's response, the court must either enter an order on the merits of the motion or set the motion for hearing. Furthermore, because the sworn allegations of a defendant's motion must be taken as true, at least until conclusively refuted by the record, Montez v. State , 86 So.3d 1243, 1245 (Fla. 2d DCA 2012), if the postconviction court denies a legally and facially sufficient motion for DNA testing without a hearing, it must attach to its order those portions of the record conclusively refuting the claim. Poole v. State , 225 So.3d 418, 419 (Fla. 5th DCA 2017) ; Padgett v. State , 15 So.3d 35, 36 (Fla. 1st DCA 2009) ; Schofield v. State , 861 So.2d 1244, 1245 (Fla. 2d DCA 2003).

In summarily denying Lane's motion, the postconviction court articulated two bases in support of its conclusion that Lane had not demonstrated that there is a reasonable possibility that DNA testing of the bicycle, although likely admissible evidence at trial, would lead to an acquittal or lesser sentence. See King v. State , 808 So.2d 1237, 1247-49 (Fla. 2002) (affirming denial of motion for DNA testing when the defendant could not show that the results would raise a reasonable probability of an acquittal or lesser sentence). First, the court observed that in his motion, Lane admitted that "about 10 punches were thrown" during his fight with the victim and that he had left the victim in a fetal position with his hands and feet bound. Second, the court noted that Lane had also admitted that a detective testified that no fingerprints were recovered from the bicycle connected to Lane.

We conclude that the lower court erred in denying Lane's motion without attaching any court records to its denial order. By failing to do so, there is nothing before us refuting Lane's claims that someone else murdered the victim using the bicycle long after Lane left the victim alive and that there is a reasonable probability that DNA evidence will be found on the bicycle providing the true identity of the killer, thus raising a reasonable doubt as to Lane's guilt. Moreover, the reasons provided by the court for denying the motion fail to refute the sworn facts alleged in Lane's motion that the victim was found in an entirely different position than the position in which Lane left the victim and that the DNA of the actual killer, and not Lane's DNA, will be found on the bicycle.

Accordingly, we reverse the order summarily denying Lane's rule 3.853 motion for postconviction DNA testing of the bicycle, and we remand for the court either to conduct an evidentiary hearing on the motion or to attach to its order those parts of the record that conclusively refute Lane's claim.

REVERSED and REMANDED.

TORPY, BERGER and LAMBERT, JJ., concur.

      See Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief [sought in a rule 3.853 motion], unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.").


author: BADALAMENTI, Judge.

text:
    James Leigh FERRIS, Appellant, v. Dianna WINN f/k/a Dianna M. Ferris, Appellee.
    Case No. 2D17-1075
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018.
    Michael E. Chionopoulos of Absolute Law, P.A., Fort Myers, for Appellant.
    Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee.
   BADALAMENTI, Judge.

The former husband, James Ferris (the "father"), appeals the trial court's nonfinal order granting the former wife's, Dianna Winn (the "mother"), verified emergency motion ("verified motion") to suspend a mediated postdissolution timesharing agreement and prohibiting the father from contacting their three minor children. On appeal, the father argues that he was deprived of his procedural due process rights because nineteen hours' notice of the hearing on the mother's verified motion was insufficient. We agree and reverse.

Procedural due process "is comprised of 'both fair notice and a real opportunity to be heard.' " In re C.K., 88 So.3d 975, 977 (Fla. 2d DCA 2012) (quoting Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002) ). "The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance ... [while] the opportunity to be heard must be at a meaningful time and in a meaningful manner." Id. (alteration in original) (quoting Borden, 818 So.2d at 607 ).

Section 61.518(1), Florida Statutes (2017), mandates that "[b]efore a child custody determination is made under this part, notice and an opportunity to be heard ... must be given to ... any parent whose parental rights have not been previously terminated." The legislature defines "[c]hild custody determination" as a "judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order." § 61.503(3). Further, Florida Rule of Civil Procedure 1.090(d) requires a party to serve a copy of any written motion and a copy of the notice of the hearing "a reasonable time before the time specified for the hearing." "While there are no hard and fast rules about how many days constitute a 'reasonable time,' the party served with notice must have actual notice and time to prepare." Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). That said, a parent's "right to due process may give way when an emergency situation exists, 'such as where a child is threatened with physical harm or is about to be improperly removed from the state.' " Bahl v. Bahl, 220 So.3d 1214, 1216 (Fla. 2d DCA 2016) (quoting Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006) ).

As an initial matter, the parties do not dispute, and we agree, that no emergency situation existed based on the mother's verified motion so as to allow the father's procedural due process rights to "give way." See id. In Bahl, the mother filed an emergency petition for change in her timesharing agreement with the father. Id. at 1215. There were no allegations that the father threatened the child with physical harm. Id. at 1216. Instead, the mother alleged " 'ongoing parental alienation perpetrated' by the father towards the mother." Id. Our court explained that while "the allegations by the mother ... were serious and warranted consideration by the trial court, they did not rise to the level of harm that would excuse the trial court from providing the father with an opportunity to be heard." Id.

Here, the mother's verified motion alleged that the father engaged in extreme parental alienation while the children were assimilating to living with her in Indiana.

Specifically, the mother asserted that the father emailed their minor children urging the children to not obey the mother. She further contended that the father "wrongfully and consistently tried to alienate the minor children's feelings towards [her]" by posting "hateful, inflammatory, outrageous and false allegations" on social media about the mother. Like Bahl, the mother here made allegations that the father acted to alienate the children from her through communications with the children. See id. Also like Bahl, the mother did not allege that the children were in threat of physical harm by the father. See id. Although the father's alleged conduct here is serious and warrants consideration by the trial court, the alleged conduct set forth in the verified motion did not establish an emergency situation so as to quell the father's procedural due process rights. See id.; Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997) (noting that a court may enter an order granting a motion for temporary custody without affording notice to the opposing party where an emergency exists, such as "where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state").

Having identified that there was no emergency situation set forth in the verified motion, we next address whether the notice provided to the father was adequate to protect the father's procedural due process rights. The mother filed her verified motion on February 8, 2017, at 10:14 a.m. At 3:17 p.m. on that same day, the father and an attorney who had represented the father for a portion of the postdissolution proceedings were served via email by the mother's attorney with notice that a hearing on the mother's emergency motion would take place on February 9, 2017, at 10:30 a.m. Approximately one hour later, the father's former attorney filed a "Notice of Non-Representation," advising the trial court that he no longer represented the father and therefore would not be attending the hearing.

Neither the father nor any attorney representing the father attended the February 9 hearing, which took place approximately nineteen hours after the mother's attorney sent email notice of that hearing. The trial court subsequently entered an order suspending the father's timesharing arrangement with the children, suspending all contact from the father with the children, and ordering that the father undergo a psychiatric examination, among other requirements.

After careful review, we hold that the father's procedural due process rights were violated because he was provided inadequate notice of the hearing on the mother's verified motion. Although determining whether notice provided is reasonable depends upon the circumstances of each case, we have not identified a single case where less than twenty-four hours' notice of a hearing impacting an individual's parental rights was upheld as reasonable. See Hayman v. Hayman, 522 So.2d 531, 532 (Fla. 2d DCA 1988) (concluding that the court deprived former wife of her procedural due process rights by entering order granting custody of children to former husband where former wife received written notice of the hearing on former husband's contempt motion the morning of the hearing); Brouard v. McLean, 753 So.2d 601, 602 (Fla. 4th DCA 2000) (reversing entry of order suspending father's visitation with his daughter on the basis of inadequate notice when former husband was provided with less than twenty-four hours' notice of the hearing). Although the father was represented by counsel throughout some portions of the dissolution and postdissolution proceedings, the father was unrepresented by counsel at the time of the filing of the mother's verified motion. Less than one day's notice to retain counsel and prepare for an evidentiary hearing on the mother's verified motion is not reasonable. Indeed, the mother's counsel laudably concedes this on appeal. Accordingly, we reverse the February 9, 2017, order of the trial court.

In closing, we commend the trial court on acting promptly in this difficult familial dispute impacting minor children, which has stretched for several years and has involved numerous contentious filings. We are compelled, however, to reverse and remand the case so that the issues raised in the mother's verified motion can be resolved by the trial court after each party receives proper notice and an opportunity to be heard. See Brouard, 753 So.2d at 602. We express no opinion as to the merits of the mother's verified motion.

Reversed and remanded for further proceedings consistent with this opinion.

SILBERMAN and CRENSHAW, JJ., Concur.


author: VILLANTI, Judge.

text:
    Vanessa MUSSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D17-1208
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Vanessa Musson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius Demps, Assistant Attorney General, Tampa, for Respondent.
   VILLANTI, Judge.

In her petition filed under Florida Rule of Appellate Procedure 9.141(d), Vanessa Musson raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition in part and deny it in part.

A jury found Ms. Musson guilty of simple battery, aggravated battery, kidnapping with intent to inflict bodily harm or terrorize, grand theft of a motor vehicle, and armed robbery. She appealed her judgment and sentences, and this court reversed the kidnapping conviction, describing the facts as follows:

In the late afternoon of September 14, 2012, Bobbie Jo Curtis and her son, Bryan Curtis, tied seventy-one-year-old Joseph Bruno to a chair inside his house, repeatedly threatened him, beat him severely, took his handgun and van keys, and robbed him of his personal property. At some point during the commission of these crimes, Ms. Curtis decided to enlist the aid of her friend Ms. Musson. Depending on one's view of the evidence, Ms. Musson's role upon arriving at Mr. Bruno's house was either (a) limited to assisting the Curtises with packing and disposing of Mr. Bruno's van and, at some point, battering [the victim's] well-meaning neighbor who came inside the house to investigate what was happening or (b) actively participating in nearly the entire enterprise, including Mr. Bruno's beating, armed robbery, and kidnapping.
At trial neither Mr. Bruno nor the neighbor could positively state whether Ms. Musson had any interaction with Mr. Bruno, nor could they describe her involvement with the robbery. Ms. Curtis and Ms. Musson did not testify. Bryan Curtis, who had reached a prior plea agreement with the State, testified as a State witness. Mr. Curtis provided the only trial testimony about the details of the robbery, the aggravated battery of Mr. Bruno, and Ms. Musson's participation in these crimes. Mr. Curtis claimed that early on in the robbery, after binding Mr. Bruno to the chair, his mother left in Mr. Bruno's van to pick up Ms. Musson. According to Mr. Curtis, Ms. Musson arrived at the house while he was still gathering Mr. Bruno's effects and while Mr. Bruno was still conscious. Mr. Curtis testified that Ms. Musson emptied Mr. Bruno's wallet, found a debit card, and demanded that Mr. Bruno tell her his personal identification number. Mr. Curtis recounted that when Mr. Bruno refused, Ms. Musson proceeded to threaten and strike Mr. Bruno repeatedly with a baseball bat. According to Mr. Curtis, Ms. Musson also struggled with the neighbor, striking him on the head with a hammer while the three of them (Ms. Musson, Ms. Curtis, and Mr. Curtis) were loading Mr. Bruno's property into the van. Finally, Mr. Curtis stated that the three of them fled the house together in Mr. Bruno's van.
Ms. Musson recalled a quite different version of events in her video-recorded police interview, which was presented to the jury. Ms. Musson admitted she arrived at Mr. Bruno's house at Ms. Curtis' behest, entered the kitchen, helped load Mr. Bruno's effects into his van, struck a neighbor (because, she claimed, he attacked her), and drove the van away from the house. However, Ms. Musson maintained she never participated in any violence against Mr. Bruno because, according to Ms. Musson, she was never aware that Mr. Bruno was even in the house.
To support her theory of defense and undermine Mr. Curtis' credibility, Ms. Musson sought to introduce the testimony of Twila Baccile. Ms. Baccile had, at some point, while being transported in a police van, engaged in a conversation through a grate with a man she believed to be Mr. Curtis. She claimed that they discussed these crimes during the ride. Ms. Baccile would have testified Mr. Curtis made statements to her that he was "going to blame it all [on] Vanessa ... [and] come to court and ... point fingers at Vanessa." Ms. Baccile would have further testified that Mr. Curtis told her that he had "threatened Vanessa's life," that Ms. Musson was "an easy target," and that he "was going to blame it on Vanessa because she was outside."
The trial court ruled that Ms. Baccile's testimony was inadmissible hearsay as it was offered "for the truth of the matter asserted, because the truth of the matter asserted is he plans to blame it all on her."

Musson v. State, 184 So.3d 575, 577-78 (Fla. 2d DCA 2016) (alterations in original) (footnotes omitted). We held that the trial court abused its discretion by ruling that Ms. Baccile's testimony was inadmissible hearsay because Mr. Curtis' statements to Ms. Baccile were offered to impeach his credibility as a witness and not as substantive evidence. Id. at 578. Because "[t]he trial in this case appeared to turn on one or two witnesses' recollection of events," this court held that "Ms. Baccille's [sic] testimony about one witness' alleged bias or motive would be of vital relevance," so the State could not establish that the error was harmless. Id. at 579. In footnote three, this court wrote, "For reasons that are not clear to us, on appeal, Ms. Musson only challenges the propriety of her kidnapping conviction." Id. at 578 n.3. Accordingly, this court reversed only Ms. Musson's kidnapping conviction.

Ms. Musson then filed a petition alleging ineffective assistance of appellate counsel, asserting in ground one that her appellate counsel was ineffective for failing to argue that the trial court's abuse of discretion in excluding Ms. Baccile's testimony was harmful error as to all of her convictions. She asserted in ground two that her appellate counsel was ineffective for not filing a motion for rehearing or clarification to point out to this court that she argued in her amended initial brief that the error required reversal of her "convictions." She further asserted that if her appellate counsel had filed such a motion, this court would have "taken a closer look at their decision and seen that their decision should have encapsulated each one of the charges against Ms. Musson and not just the kidnapping charge."

Analysis

To establish a claim of ineffective assistance of appellate counsel, a petitioner must show that her appellate counsel performed deficiently and that "the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result." Downs v. Moore, 801 So.2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla. 1985) ). "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In making this decision, this court must determine "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. Under this test, we agree with Ms. Musson that her appellate counsel unreasonably failed to argue that the trial court's error in excluding the impeachment testimony was also harmful as to the simple battery conviction and that this omission was deficient performance that undermines confidence in the outcome of the appeal.

Deficient Performance

This court's records reflect that Ms. Musson's appellate counsel filed her initial brief on January 30, 2015. That brief challenged only the sufficiency of the evidence for the kidnapping conviction. The first paragraph of the statement of the case and facts states the following:

This is an appeal from a conviction of simple battery on Joseph Bruno, aggravated battery of David Ragon, grand theft motor vehicle, kidnapping and robbery. Although Ms. Musson continues to assert that she was not involved in the battery of Mr. Bruno, this appeal is regarding the conviction of the kidnapping. Specifically, the State failed to prove by competent substantial evidence that Ms. Musson was involved in the kidnapping of Mr. Bruno. Ms. Musson was sentenced to life without parole on the conviction of the charge of kidnapping.

(Emphasis added.)

Later that day, Ms. Musson's appellate counsel filed an amended initial brief that added as issue one the trial court's error in excluding the impeachment testimony. Appellate counsel offered no argument regarding how the error affected the individual verdicts, instead simply asserting: "The error and abuse of discretion by the trial court allowed the testimony of the State's witness to go unchallenged and could have changed the jury's verdict in this matter. Accordingly, the convictions of Ms. Musson must be reversed and the matter remanded for a new trial." Notably, appellate counsel refers to a single verdict but plural convictions. Ms. Musson's appellate counsel did not alter or delete the first paragraph in the statement of the case and facts. And even after this court issued its opinion pointing out in footnote three that "[f]or reasons that are not clear to us, on appeal, Ms. Musson only challenges the propriety of her kidnapping conviction," Ms. Musson's appellate counsel still did not file a motion for rehearing to explain why he referred to Ms. Musson's "convictions" in issue one and asserted that she was not involved in the simple battery but still only challenged her kidnapping conviction. Musson, 184 So.3d at 578 n.3. Accordingly, cumulatively, counsel's omissions in advocating this issue were unreasonable under the "prevailing professional norms" and constitute deficient performance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."). If Ms. Musson's appellate counsel had intended to challenge Ms. Musson's other convictions, the prevailing professional norms would have required him to expressly do so; alternatively, if appellate counsel intended to challenge only the kidnapping conviction, this decision was unreasonable.

Prejudice

The direct appeal record reflects that Ms. Musson's recorded interview with the police was played for the jury. She admitted that Ms. Curtis called her and asked for her help emptying a safe. Ms. Curtis told her that the homeowner was not there. Ms. Musson stated that the Curtises had piled things by the door and that she moved them into the van. She consistently stated that she did not see the victim of the kidnapping and simple battery. However, she admitted to stealing the victim's firearms and his van, and she admitted that when the victim's neighbor approached her as she was putting the victim's property into his van, she hit the neighbor with a firearm.

Thus, Ms. Musson admitted to aggravated battery of the neighbor and grand theft of a motor vehicle. She also admitted to facts that constitute armed robbery. Section 812.13, Florida Statutes (2012), states:

(1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
....
(3)(a) An act shall be deemed "in the course of committing the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or commission.
(b) An act shall be deemed "in the course of the taking" if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

In Thomas v. State, 36 So.3d 853, 856 (Fla. 3d DCA 2010), the Third District held that the "force, violence, assault, or putting in fear" need not "be exerted against the person from whom the property was taken, so long as it was exerted in the course of the taking." See also Santilli v. State, 570 So.2d 400, 402 (Fla. 5th DCA 1990) ("[T]he continuity of [the appellant's] progression from the store to his forceful act against the [pursuing] officer with his car outside the store justified submission of the robbery offense to the jury."); Rumph v. State, 544 So.2d 1150, 1151-52 (Fla. 5th DCA 1989) ("Appellant's use of force to shove [a store employee] out of his way and into the door as he fled with [stolen property] constitutes the use of force in flight after the taking and provides the evidence to sustain appellant's conviction for robbery.").

Accordingly, the evidence of Ms. Musson's guilt of armed robbery, grand theft of a motor vehicle, and aggravated battery of the neighbor did not hinge on Mr. Curtis' credibility. Had Ms. Musson's appellate counsel specifically challenged the trial court's ruling in excluding the impeachment evidence as to each of these convictions, the State would have been able to establish that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

But Ms. Musson did not admit to facts that constitute the elements of simple battery of the victim. As with the kidnapping charge, the evidence of Ms. Musson's guilt hinged on Mr. Curtis' testimony. Because this court held that Mr. Curtis' credibility was critical as to the kidnapping charge, if Ms. Musson's appellate counsel had also specifically challenged the simple battery conviction, this court would have necessarily also reversed the circuit court's judgment of conviction for simple battery. Thus, confidence in the outcome of the appeal is undermined.

Based on the foregoing, we must grant Ms. Musson's petition in part and deny it in part. We grant the petition only as to the simple battery conviction; because a new appeal would be redundant, we reverse Ms. Musson's conviction for simple battery and remand for a new trial on that charge. See Johnson v. Wainwright, 498 So.2d 938, 939 (Fla. 1986). We deny the petition as to the aggravated battery, grand theft of a motor vehicle, and armed robbery convictions.

Petition granted in part and denied in part.

KHOUZAM and BADALAMENTI, JJ., Concur.

      The State charged Ms. Musson with aggravated battery in this count, but the jury found her guilty of the lesser-included offense of battery.


text:
    E.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-924
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   PER CURIAM.

We grant E.C.'s motion for rehearing, withdraw our opinion of March 7, 2018, and replace it with the following opinion.

E.C., a juvenile, was charged with burglary of an unoccupied structure and criminal mischief after having been caught at a closed school construction site. After an adjudicatory hearing, E.C. was found guilty of the lesser included offense of trespass and absolved of the criminal mischief charge. To have trespassed, as charged, E.C. had to have entered a "structure." § 810.08(1), Fla. Stat. (2016). A "structure" is defined as a building with "a roof over it." § 810.011(1), Fla. Stat. (2016). The facts in evidence indicate that E.C. entered the site at an early enough phase of construction that a building with a roof on it did not then exist. See I.L. v. State, 3D17-1108 (Fla. 3d DCA Feb. 21, 2018).

Accordingly, we reverse E.C.'s conviction and remand for proceedings consistent herewith.

Reversed and remanded.


author: SCALES, J.

text:
    Arvin PELTZ, Appellant, v. TRUST HOSPITALITY INTERNATIONAL, LLC, et al., Appellees.
    No. 3D17-428
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018
    Arvin Peltz, in proper person.
    Leto | Bassuk, and Larry Bassuk, Miami, and Brian L. Elstein, Ft. Lauderdale, for appellees.
    Before SUAREZ, SCALES and LINDSEY, JJ.
   SCALES, J.

Appellant, plaintiff below, Arvin Peltz seeks review of a judgment awarding attorney's fees to appellees, defendants below, Trust Hospitality, LLC ("Hospitality") and Trust Hospitality International, LLC ("International") based on appellees' joint proposal for settlement served on Peltz. We reverse, because appellees' joint proposal did not apportion liability between the two offerors as required by Florida Rule of Civil Procedure 1.442(c)(3).

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Peltz, an attorney, sued appellees along with an additional defendant, Tecton Management Services Company, LLC ("Tecton"), seeking approximately $94,000 in legal fees for services Peltz performed for Tecton. Peltz's claims against Tecton were based on open account, account stated, and breach of oral contract. Peltz claimed that appellees were liable for Tecton's obligations based on theories of breach of oral contract, unjust enrichment, and quantum meruit. In the latter claims, Peltz asserted that appellees "[a]ssumed control over the day to day operations of TECTON" and that appellees directly and unjustly benefited from Peltz's legal work for Tecton.

Pursuant to rule 1.442 and section 768.79 of the Florida Statutes, appellees served on Peltz a single, joint proposal for settlement, offering to pay Peltz $10,001 in full settlement of Peltz's claims against appellees. Appellees' proposal, though, did not apportion between them the amount of the proposal attributable to each offeror. Peltz rejected the proposal.

The trial court ultimately entered a final summary judgment in appellees' favor, and appellees then sought to recover their attorney's fees against Peltz based on their proposal for settlement. The trial court entered the judgment on appeal, awarding appellees fees and costs in the amount of $52,760. Peltz timely appeals this judgment.

II. ANALYSIS

Section 768.79 of the Florida Statutes provides the substantive basis for the recovery of attorney's fees as a sanction for one party's rejection of another party's settlement proposal; and, rule 1.442 provides the procedural framework to implement the statute's substantive requirements. See Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 395 (Fla. 2016). Rule 1.442(c)(3) -requiring, inter alia , that all joint proposals state the amount and terms attributable to each offeror-implements section 768.79(2)(b)'s requirement that all settlement offers "[n]ame the party making it and the party to whom it is being made." Because the fee-shifting provisions of section 768.79 and rule 1.442 are in derogation of the common law rule that each party pay its own fees, the statute and rule are strictly construed. Kuhajda, 202 So.3d at 394. A proposal for settlement not strictly conforming to rule 1.442(c)(3)'s apportionment requirement is unenforceable. See 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) ).

Peltz argues that appellees' joint proposal was invalid, and therefore unenforceable, because the proposal did not apportion the $10,001 settlement offer between Hospitality and International, the proposal's co-offerors, as required by rule 1.442(c)(3). Citing to rule 1.442(c)(4)'s exception to rule 1.442(c)(3)'s apportionment requirement, appellees argue that apportionment in their joint proposal was unnecessary because any liability they may have had for Tecton's debt was solely derivative, by operation of law.

Appellees, though, misapprehend rule 1.442(c)(4)'s exception to rule 1.442(c)(3)'s apportionment requirement. In this case, the exception would apply only if Peltz had alleged that appellees/co-offerors' liability was exclusively derivative in nature, i.e., their liability for Tecton's debt arose by operation of law, rather than as a result of any act or omission of the offerors. As recognized by rule 1.442(c)(4), apportionment between the co-offerors would be unnecessary in such a case because, from the liability and damages standpoint of the appellant/offeree, the co-offerors would be legally indistinguishable. Cf. Grobman, 863 So.2d at 1235 ("The vicariously liable party is responsible to the plaintiff to the same extent as the primary actor; both are jointly liable for all of the harm that the primary actor has caused.").

Peltz's claims against appellees, though, are direct claims; Peltz alleged that appellees directly benefited from Peltz's legal work, and that appellees' actions directly induced Peltz to continue performing legal work for the benefit of Tecton and appellees. In our de novo review of Peltz's Amended Complaint, we could not find any allegations suggesting that appellees were solely derivatively liable for Tecton's obligations, as required to implicate rule 1.442(c)(4)'s exception. Indeed, appellees prevailed in this case because they were not responsible, derivatively or otherwise, for Peltz's claims against Tecton. In fact, Peltz may still recover a judgment against Tecton, despite Peltz's claims against appellees having been dismissed. Thus, appellees' very success in this litigation severely undercuts their argument that rule 1.442(c)(4)'s apportionment exception applies to their joint settlement proposal.

Finally, appellees suggest that, because the damages Peltz sought against them are not entirely distinct from the damages Peltz still seeks to recover from Tecton, any liability of appellees to Peltz would be derivative, thereby implicating rule 1.442(c)(4)'s exception to apportionment. We find this argument unpersuasive. As succinctly stated by our sister court, "[t]he focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable for the full amount of damages, but rather, it is whether the claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability." Saterbo v. Markuson, 210 So.3d 135, 138 (Fla. 2d DCA 2016) (footnote omitted). Irrespective of the extent of appellees' liability, Peltz's claims against appellees were direct claims that did not implicate rule 1.442(c)(4)'s exception to the apportionment requirement.

CONCLUSION

Peltz's claims against appellees were direct claims, based on those appellees' actions, and were not derivative claims. Therefore, rule 1.442(c)(4)'s exception to rule 1.442(c)(3)'s apportionment requirement is inapplicable. Because appellees' proposal for settlement did not apportion the offer between the co-offerors, the proposal is unenforceable. We therefore reverse the trial court's attorney's fee judgment for appellees.

Reversed.

      Collectively, we refer to Hospitality and International herein as "appellees."

      A different panel of this Court affirmed the final summary judgment on appeal. See Peltz v. Trust Hospitality, LLC, 3D16-2136, 2018 WL 735609 (Fla. 3d DCA Feb. 7, 2018).

      In determining whether a proposal for settlement comports with rule 1.442 and section 768.79, we employ a de novo standard of review. See Miami-Dade Cty. v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006).

      Rule 1.442(c)(3) provides that "[a] proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party."

      Rule 1.442(c)(4) reads, in its entirety, as follows:
      Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.

      "Cases of derivative liability ... 'involve wrongful conduct by both the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another.' " Grobman v. Posey, 863 So.2d 1230, 1235-36 (Fla. 4th DCA 2003) (quoting William D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious, Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L. Rev. 617, 619 (2003) ). "Derivative liability is similar to vicarious liability in that (1) there is no cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused." Id. at 1236.

      By way of example, a vehicle's owner, despite no active negligence, is, by operation of law, liable for the torts of a driver permissively using the owner's vehicle. See Richbell v. Toussaint, 221 So.3d 764, 768 (Fla. 4th DCA 2017). Thus, when an injured plaintiff sues both the owner and operator of a negligently driven vehicle, the owner and operator may, pursuant to rule 1.442(c)(4)'s exception, serve the plaintiff with a single, joint, un-apportioned settlement offer. See Miley v. Nash, 171 So.3d 145, 149-50 (Fla. 2d DCA 2015).


author: Roberts, J.

text:
    K.D., Mother of C.D., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-50
    District Court of Appeal of Florida, First District.
    April 13, 2018
    Susan Barber, Assistant Regional Conflict Counsel, Tallahassee; Crystal M. Frusciante of Frusciante Law Firm, P.A., Sunrise; and Megan O. Peak, Assistant Regional Conflict Counsel, Panama City, for Appellant.
    Sarah J. Rumph of Children's Legal Services, Tallahassee, for Appellee Florida Department of Children and Families.
    Jesse Ryan Butler of Dickinson & Gibbons, P.A., Sarasota; Thomasina F. Moore and Sara Goldfarb, Sanford, for Guardian Ad Litem Program.
   Roberts, J.

K.D., the mother, appeals an order terminating her parental rights. K.D. does not contest the grounds for termination, but argues that the Department of Children and Families (the Department) failed to prove by clear and convincing evidence that termination was the least restrictive means of protecting the child, C.D. We disagree and affirm the order terminating the mother's parental rights to C.D.

The mother has suffered from chronic substance abuse for over a decade. Since 2008, the Department has removed seven older children from her care, primarily due to her substance abuse problems. The instant appeal concerns her child, C.D., born on October 27, 2016. C.D. tested positive for cocaine and marijuana at birth and was sheltered three days later based on the drug exposure. The mother was found in violation of her drug offender probation and was criminally committed to an inpatient substance abuse treatment facility, A Woman's Addiction Recovery Effort (AWARE). At the time of the adjudicatory hearing on termination, the mother had been living at AWARE for almost three months and was, by all accounts, doing very well. The mother does not dispute that AWARE was providing for all of her needs and she was not living independently.

Based on her chronic substance abuse and her history with the Department, the Department did not offer the mother a case plan, but instead filed an expedited petition to terminate her parental rights under sections 39.806(1)(c), (i), (j), and (l), Florida Statutes (2016). The Department alleged termination was the least restrictive means to protect C.D. because the mother's chronic substance abuse, which had not been remedied despite services offered to her in the past, posed a significant risk of harm to the child. After an adjudicatory hearing in which the trial court received testimony from the mother, C.D.'s caregiver, the child protection investigator, the assigned case manager, the guardian ad litem, and the AWARE program director as well as documentary evidence related to the removals of the mother's seven older children, the trial court found the Department had established by clear and convincing evidence the four grounds for termination alleged in the petition. The court also found by clear and convincing evidence that termination of the mother's parental rights was the least restrictive means to protect C.D. from harm.

On appeal, the mother only challenges the trial court's finding of least restrictive means because termination was effectuated without the Department offering her a case plan. Our review, confined to the least restrictive means prong of the termination order, is "highly deferential" and limited to whether competent, substantial evidence supports the trial court's judgment and whether we " 'cannot say that no one could reasonably find such evidence to be clear and convincing.' " J.P. v. Fla. Dep't of Children & Families , 183 So.3d 1198, 1203 (Fla. 1st DCA 2016) (quoting N.L. v. Dep't of Children & Family , 843 So.2d 996, 1000 (Fla. 1st DCA 2003) ). Our role is not to reweigh the evidence heard by the trial court. J.P. , 183 So.3d at 1204.

Because parental rights are a fundamental liberty interest, termination must be the "least restrictive means of protecting the child from serious harm." Padgett v. Dep't of Health & Rehab. Servs. , 577 So.2d 565, 571 (Fla. 1991). This means that the Department ordinarily must show that it has made a good faith effort to rehabilitate the parent and to reunify the family, often through a case plan and related services. Id. However, a case plan is not a mandatory prerequisite to termination. Under section 39.806(2), Florida Statutes (2016), reasonable efforts to preserve and reunify families are not required when termination is proven under sections 39.806(1)(b) through (d) or (1)(f) through (m). Termination, here, was premised on sections 39.806(1)(c), (i), (j), and (l) ; therefore, the Department was not obligated to offer the mother a case plan before seeking to terminate her parental rights. The Florida Supreme Court has recognized in "extraordinary circumstances," termination without a case plan is the least restrictive means. In re T.M. , 641 So.2d 410, 413 (Fla. 1994). The "extraordinary circumstances" here, namely the mother's decade-long substance abuse and involvement with the Department, allowed the Department to swiftly remove C.D. and seek termination due to the child's substantial risk of potential harm from the mother's continued involvement. See R.W. v. Dep't of Children & Families , 228 So.3d 730, 733 (Fla. 5th DCA 2017) (recognizing "extraordinary circumstances" for termination without a case plan include termination based on continuing abuse through continued involvement under section 39.806(1)(c) ). We find no merit to the mother's argument that termination was improper without her first being offered a case plan.

The mother seems to suggest that termination was improperly based solely on events occurring in and around 2008 when she failed to engage in services offered to her and had some of her children removed. She suggests that she is doing well in AWARE now and should have another chance to engage in a case plan and services. The mother's narrow view of the past decade ignores her chronic substance abuse that led to the removal of seven of her children. Most importantly, she glosses over her own admitted drug use while pregnant with C.D., who was born suffering the consequences. The trial court received evidence that the mother was presently doing well, and acknowledged her progress, but appropriately recognized that the case was not all about the mother as the ultimate welfare of the child remains paramount. We agree with the trial court and decline the mother's invitation to reweigh the evidence. The least restrictive means prong is not "intended to preserve parental bonds at the cost of a child's future. Instead, this test requires that 'those measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child bond.' " A.H. v. Dep't of Children & Families , 144 So.3d 662, 665-66 (Fla. 1st DCA 2014) (quoting L.W. v. Dep't of Children & Families , 71 So.3d 221, 224 (Fla. 4th DCA 2011) ). Under the "extraordinary circumstances" of this case, termination was the least restrictive means of protecting C.D. from serious harm.

Based on the foregoing, the order terminating the mother's parental rights as to C.D. is AFFIRMED .

Lewis and Jay, JJ., concur.

      The father voluntarily surrendered his parental rights to C.D.


author: PALMER, J.

text:
    Mary WILKERSON, Appellant, v. MV TRANSPORTATION, INC., Appellee.
    Case No. 5D17-1080
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Desiree Ellison Bannasch, of Desiree E. Bannasch, PA, Orlando, for Appellant.
    Michael R D'Lugo, of Wicker Smith O'Hara McCoy & Ford, PA, Orlando, for Appellee.
   PALMER, J.

Mary Wilkerson appeals the final order entered by the trial court dismissing her negligence complaint filed against MV Transportation, Inc. (MVT). Because the trial court failed to properly consider the Kozel factors before entering the dismissal order, we reverse.

Wilkerson filed a negligence complaint against MVT, and MVT filed a motion to dismiss the complaint. Upon the request of the parties, the trial court entered an agreed order on the pending motion to dismiss, ruling that the dismissal motion was granted without prejudice and granting Wilkerson ten days from the date of the entry of the order to amend the complaint.

Twenty-one days later, Wilkerson filed a second-amended complaint. MVT filed a motion to dismiss the complaint, arguing that dismissal was warranted because the court-mandated deadline had passed by the time the complaint was filed. The trial court conducted a hearing on the motion. During the hearing, counsel for Wilkerson indicated that she did not receive the agreed order in the mail until eleven days after the order was entered. Notwithstanding this representation, the trial court struck Wilkerson's second-amended complaint, granted MVT's motion to dismiss, and entered a final order of dismissal.

Wilkerson argues that the trial court abused its discretion by dismissing her complaint without first considering the Kozel factors. We agree.

In Bank of New York Mellon v. Sandhill, we explained:

The Florida Supreme Court laid out six factors for a trial court to consider in determining whether dismissal is the appropriate sanction "in those situations where the attorney, and not the client, is responsible for the error." [ Kozel, 629 So.2d at 818 ]. The Kozel factors are:
1) [W]hether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.
Id. Before ordering dismissal, the trial court must consider all of the Kozel factors ....

202 So.3d 944, 945 (Fla. 5th DCA 2016).

MVT concedes that a reversal for consideration of the Kozel factors would be warranted if the issue had been properly preserved below, but argues that the issue was not properly preserved. We disagree. During the hearing, counsel for Wilkerson preserved the argument that the Kozel factors needed to be considered before dismissal was granted.

Accordingly, we reverse the dismissal order and remand for the trial court to apply the Kozel factors in deciding whether Wilkerson's second-amended complaint should be dismissed.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

      Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).


author: Per Curiam.

text:
    Reva Shayne GREENE n/k/a Reva Bass, Appellant, v. Hunter GREENE, Appellee.
    No. 1D17-2120
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Wesley R. Stacknik of Stacknik Law, Seminole, for Appellant.
    Donald R. Curtis, III, of the Curtis Law Firm, P.A., Perry, for Appellee.
   Per Curiam.

At the time of Spring Break, the parties could not agree on interpretation of the timesharing plan regarding their child. Threats were made, texts exchanged, and the police were called. Subsequently, Appellant sought relief in the trial court. Appellant argues that the trial court abused its discretion by 1) denying her Motion for Civil Contempt/Enforcement based on its finding that her interpretation of the timesharing provision of a Final Judgment of Dissolution of Marriage was unreasonable; and 2) awarding attorney's fees to Appellee. We affirm the trial court's interpretation of the timesharing plan as it relates to the holidays in dispute. Thanksgiving break begins from the time school adjourns on Wednesday until school resumes the following Monday. Spring Break holiday is from the time school adjourns on Friday preceding the break until school resumes again the following Monday. However, because the trial court abused its discretion in awarding attorney's fees to Appellee, we reverse that portion of the Order.

In the Order denying the motion, the trial court pronounced, "[t]hat the Court, on its inherent authority to award attorney's fees finds that the [Appellee] is entitled to recover reasonable attorney's fees." No specific findings or reasoning as to the basis for the award of attorney's fees was detailed other than a citation to Moakley v. Smallwood , 826 So.2d 221 (Fla. 2002). Neither party requested attorney's fees based on financial reasons.

The trial court has authority to award attorney's fees under the inequitable conduct doctrine when a party has acted with egregious conduct or in bad faith. Bitterman v. Bitterman , 714 So.2d 356, 365 (Fla. 1998). Such an award is "reserved for those extreme cases where a party acts 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' " Id. (quoting F.D. Rich Co. v. United States ex rel. Industrial Lumber Co. , 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974) ).

When awarding fees under the inequitable conduct doctrine, the trial court is not compelled to make any express findings of a party's financial need or inability to pay. Becker v. Becker , 778 So.2d 438, 439 (Fla. 1st DCA 2001). However, the trial court must make express findings of bad faith conduct, "supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees." Moakley , 826 So.2d at 227. The finding must also be based on a "high degree of specificity in the factual findings." Id. The reasons warranting an award of attorney's fees to an opposing party must be directly correlated to the amount of attorney's fees and costs imposed on said opposing party through the specific bad faith conduct. Id.

Here, the lower court's award of attorney's fees to Appellee was an abuse of discretion because the court's blanket finding simply lacks the required "high degree of specificity." See id. The trial court's only support for the award was a finding that Appellant's, " ... interpretation of the Court's Judgment was incorrect and unreasonable." The Order also noted that Appellant called law enforcement on several occasions and sent a text message to Appellee threatening arrest. These findings lack the specificity required for an award of attorney's fees under the inequitable conduct doctrine. Further, the record does not support a finding of bad faith conduct required for such an award. Accordingly, the award of attorney's fees to Appellee is reversed.

AFFIRMED in part, REVERSED in part.

Lewis, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Jarrod MCDOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1776
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Jared McDowell, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Kelsey v. State , 206 So.3d 5 (Fla. 2016).

Roberts, Wetherell, and Bilbrey, JJ., concur.


text:
    Stephanie M. SOUSIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1703
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), involves three Walton County cases-a 2014 conviction as to which Appellant violated her probation, and two new law offenses in 2016 that triggered the violation. We affirm Appellant's convictions and sentences, and instruct the lower court to correct a scrivener's error on the judgment, which includes a count that had been dismissed.

The 2014 conviction was charged as grand theft under sections 812.014(1)(a), (b), (2)(b), Florida Statutes (2014). The judgment on appeal cites this crime as Count I of Case No. 14-CF-598, "Larceny greater than $20K but less than $100k." The record reflects, however, that this count was dismissed during the original proceedings. It does not appear on the original judgment, the order revoking probation, or the scoresheets in the record. On remand the trial court shall enter an amended judgment deleting this reference. See King v. State , 201 So.3d 206 (Fla. 1st DCA 2016) (affirming an Anders appeal but remanding for correction of scrivener's errors in the written judgment); Washington v. State , 37 So.3d 376 (Fla. 1st DCA 2010) (same).

AFFIRMED and REMANDED with instructions.

Lewis, Kelsey, and Winsor, JJ., concur.


author: Per curiam.

text:
    Shelby BURCH and Margaret Milstead-Burch, Appellants, v. Cheryl M. DAVIS and Travis G. Davis, Appellees.
    No. 1D18-1191
    District Court of Appeal of Florida, First District.
    May 10, 2018
    John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellants.
    Rhonda B. Boggess of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellees.
   Per curiam.

DISMISSED . The Court declines to relinquish jurisdiction as requested by the Appellant in the response to the Court's March 27, 2018, order. See Demont v. Demont , 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    Patrice KERR, Petitioner, v. SECOND JUDICIAL CIRCUIT COURT, Respondent.
    No. 1D18-1392
    District Court of Appeal of Florida, First District.
    May 10, 2018
    Patrice Kerr, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied as premature. See Smartt v. First Union Nat'l Bank , 771 So.2d 1232 (Fla. 5th DCA 2000).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Albert DELON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0292
    District Court of Appeal of Florida, First District.
    May 11, 2018
    Albert Delon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Marsarius S. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0206
    District Court of Appeal of Florida, First District.
    May 11, 2018
    Marsarius S. Evans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied.

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    Caren HALL, Appellant, v. FREEDOM MORTGAGE CORPORATION, et al., Appellee.
    No. 1D17-3839
    District Court of Appeal of Florida, First District.
    May 10, 2018
    James H. Cerveny, Gainesville, for Appellant.
    Robert Edwards of Choice Legal Group, P.A., Fort Lauderdale; Sonia Henriques McDowell of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Appellee.
   Per Curiam.

In light of Appellee's confession of error, we reverse the order on appeal and remand for a hearing to resolve Appellant's exceptions to the magistrate's report.

Wolf, Bilbrey, and Kelsey, JJ., concur.


author: Per Curiam. Makar, J., concurring.

text:
    S.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1894
    District Court of Appeal of Florida, First District.
    May 17, 2018
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED. See Brown v. State , 428 So.2d 250, 252 (Fla. 1983) ; Bradshaw v. State , 509 So.2d 1306 (Fla. 1st DCA 1987).

Lewis and Osterhaus, JJ., concur; Makar, J., concurs with opinion.

Makar, J., concurring.

The biblical injunction to flee from, and not keep company with, bad influences applies to college dormitories, where the close proximity of ne'er-do-well roommates and after-hours verboten jollities meld, raising the question: who possessed the marijuana and mason jar on the anteroom table in the downstairs "common area" in a compact four-bedroom townhouse located in Edith McCollum Hall on the Florida State University campus at 4:10 a.m. on October 23, 2016?

When FSU Officer Cherry Martina responded to a complaint from dorm staff of loud music and marijuana fumes wafting from the townhouse (staff had intervened earlier, but their requests to tone it down were ignored), she immediately smelled the pungent aroma in the hallway leading to the townhouse. It grew much stronger when a resident of the townhouse opened the downstairs entry door. Just inside, the officer saw a table, couch, chairs, and video screen in the "common area," which was strewn with beer bottles, beer cans, marijuana "shake" in a mason jar, cigarette wrapper casings (from which tobacco had been removed), and a bottle cut and shaped into a smoking apparatus. Five young men-four playing videogames and all appearing to be "under the influence" of drugs or alcohol-were present in the "common area," each disclaiming use or ownership of the contraband (one had a "grinder" in his pocket, which he claimed was not his). As citations for possession of marijuana were being written, an offer was made by the group that they play "rock, paper, scissors to see who could take the charge."

S.S., a seventeen-year-old co-resident of the townhouse, was charged with possession of cannabis and paraphernalia. S.S., who the arresting officer said had bloodshot eyes and delayed speech and movement (though she couldn't say precisely from what substance), denied that the marijuana or mason jar were his. At trial, a roommate-who was playing videogames with his friends before the officer arrived-testified that S.S. neither used nor possessed the marijuana and mason jar; instead it was the roommate and his three buddies who did so (they'd been toking all day). The roommate avowed that he'd never seen S.S. possess marijuana or drug paraphernalia at any time and that S.S. was never present when the marijuana's use occurred in the townhouse. On the evening in question, S.S. was "probably like getting ready for bed, like eating or something. Like the dorm is two stories, so like he could have been there but not been like downstairs ...." Consistent with his testimony on this point, the officer who entered the townhouse said that S.S. was downstairs but towards the back of the room by the stairwell that led to the second floor bedrooms.

At the close of evidence in the bench trial, S.S. moved for a judgment of dismissal, his attorney arguing:

[S.S.] was not at any time in possession of these items. He was not aware of these items. And he did not have the ability to exercise dominion and control over them. Simply because he's a resident of the home occupied by four different people, and clearly with the number of visitors, does not indicate that he had knowledge or the ability to exercise dominion and control. And an inference is not necessary where direct evidence to the contrary has been presented.

The trial court denied the motion (but made no factual findings), found S.S. guilty of possession of cannabis and paraphernalia, withheld adjudication of delinquency, and sentenced S.S. to three months of probation.

On appeal, S.S. claims that denial of his motion for judgment of dismissal was error, urging that nothing-other than S.S.'s physical presence in the townhouse at the time of the officer's entry-establishes a basis for S.S.'s constructive possession of the contraband (actual possession is not an issue, there being no evidence of such). He positions the case as a purely circumstantial one for which he provided a reasonable hypothesis of innocence (lack of knowledge and control over the contraband). The State counters that someone who jointly occupies a townhouse and is physically present in its common area where drugs and paraphernalia are in plain sight and smell can be deemed to have constructive possession of the contraband. ("Because the contraband was in [S.S.'s] presence, in plain view, in a common area of his own dorm, emitting a strong and distinct odor, and causing [S.S.] to exhibit indications of impairment,[ ] there was sufficient evidence to create a question for the trier of fact about constructive possession.").

Our review of the denial of S.S.'s motion for judgment of dismissal is de novo with evidence viewed "in a light most favorable to the State, drawing all reasonable inferences in its favor." Ramos v. State , 89 So.3d 1119, 1122 (Fla. 1st DCA 2012). Viewed in this way, the evidence showed that S.S. was a resident of the four-bedroom townhouse and was near the stairwell into the common area where the marijuana and mason jar were in conspicuous view on a table. The lingering vapors of marijuana smoke were easily detectable, and the detritus of loud, late-night merrymaking was strewn about; S.S. also had signs of being "under the influence," though the influencer wasn't clear.

A constructive possession theory required the State "to prove two elements: that [S.S.] had (1) dominion and control over the contraband and (2) knowledge that the contraband was within his presence." Knight v. State , 186 So.3d 1005, 1012 (Fla. 2016). This type of claim can be proven by circumstantial evidence, but it is subject to the "circumstantial evidence standard," which requires that "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt[,] a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Id. at 1009 (quoting Jaramillo v. State , 417 So.2d 257, 257 (Fla. 1982) ). A major limitation, however, is that the "circumstantial evidence standard of review applies only where all of the evidence of a defendant's guilt-i.e., the evidence tending to show that the defendant committed or participated in the crime-is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence." Knight , 186 So.3d at 1010 (emphasis added).

To begin, the case against S.S. is not based entirely on circumstantial evidence. Like the situation in Knight , which involved a traffic stop where marijuana was found in a suitcase in the back seat of a car occupied by three acquaintances, Officer Martina's "testimony about the location of the cannabis [is] direct evidence of dominion and control" as to S.S., who was located by the townhouse's internal stairwell adjoining the common area when the officer discovered the contraband. Id. at 1012 (emphasis added). The same is true as to her testimony about the intensity of the smell of marijuana inside the townhouse where S.S. resides and S.S.'s lack of sobriety. As such, the "circumstantial evidence standard" does not apply because some of the evidence tending to show S.S.'s constructive possession of the contraband is direct evidence. For this reason, appellate review of the denial of S.S.'s motion for judgment of dismissal is de novo, and his conviction will be reversed if "not supported by competent, substantial evidence." Id. at 1012. A "conviction is supported by sufficient evidence where a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the State." Id.

Turning to the elements of constructive possession, and going in reverse order, the second element-knowledge of the contraband's presence-is met. No question exists that a rational judge could conclude that S.S. saw the marijuana (and smelled its burnt odor) in the common area of the townhouse based on the officer's testimony. Perhaps S.S. didn't see or smell it, but a conclusion that he did is reasonable under the circumstances.

The first element-dominion and control over the contraband-is more knotty because the only supporting evidence is that S.S. was a joint resident in the four-bedroom townhouse, and that the marijuana and mason jar were openly displayed on the table in the common area during the early morning hours when Officer Martina paid a visit. That S.S. resided in the townhouse, and was not just a visitor or guest that evening, results in a more stringent legal standard because a resident is presumed by law to have a degree of dominion and control over the property that a visitor or guest lacks. See, e.g. , J.S.M. v. State , 944 So.2d 1143, 1144 (Fla. 2d DCA 2006) (Because no evidence existed that the minor "was an occupant of the room rather than a guest, the court could not infer that he had the ability to control the contraband simply because it was in plain view."). To implement this presumption, the standard legal test for a joint possessor of a home, townhouse, or other similar property states: "If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, ... knowledge of the contraband's presence and the ability to control it will not be inferred from the ownership but must be established by independent proof." Brown , 428 So.2d at 252 ; see Bradshaw v. State , 509 So.2d 1306, 1308-09 (Fla. 1st DCA 1987) (same). To establish the "control element of possession" the "independent proof" may consist of "fingerprints, an admission, or evidence of other incriminating statements or circumstances; a defendant's mere proximity to the contraband is not sufficient." Smith v. State , 175 So.3d 900, 903 (Fla. 1st DCA 2015). So, for example, if the marijuana and mason jar had been found hidden from view in the back of a kitchen cupboard, independent proof-such as S.S.'s fingerprints on the jar-would be required to show control.

One form of independent proof of control, however, is "when contraband is located in plain view , control over the item may be inferred from evidence that the defendant has exclusive control over the place where it was discovered." Id. (emphasis added). If S.S. were the only resident in the townhouse, this principle would apply. But a related principle applies under the supreme court's decision in Brown , which addressed the following certified question: "Does ownership and joint occupancy of a premises where illegal drugs are discovered in plain view, in the presence of the owner, constitute sufficient evidence to support a conviction for constructive possession as to the owner or as to a lessee under the same circumstances?" 428 So.2d at 251. Brown, who owned a home where he and two co-tenants resided, was found to have constructive possession of drugs strewn throughout the residence due to his "superior possessory rights."

In answering the certified question affirmatively, the supreme court said:

Brown claims that he could be convicted of constructive possession on the instant facts only if the jury impermissibly piled inference upon inference. We do not find, however, that the jury would have to have drawn an impermissible inference. In the instant case the knowledge element is met because the contraband was in plain view in common areas throughout the house. The dominion and control element is met because Brown, as resident owner of his home , had control over the common areas . Therefore, the elements of knowledge and control have been satisfied, and, as the district court found, the facts presented at trial were sufficient to create a jury question as to constructive possession.

Brown , 428 So.2d at 252 (emphasis added) (footnote omitted). The highlighted sentence establishes that a "resident owner" has "dominion and control" over the "common areas" of his home, which, in combination with the resident owner being present when contraband is found, amounts to constructive possession. The supreme court in Brown went further, however, issuing the same pronouncement as to co-tenants, answering affirmatively the following certified question: "Where two or more persons jointly occupy premises and illegal drugs are discovered in plain view, in their presence, is such proof, without more, sufficient to support a conviction for constructive possession as to each person?" 428 So.2d at 251. It viewed this question as "virtually identical to the first question" except as to the issue of ownership, which it found to be immaterial. Id. at 252. In sum, the court held that "joint occupancy, with or without ownership of the premises , where contraband is discovered in plain view in the presence of the owner or occupant is sufficient to support a conviction for constructive possession." Id. (emphasis added).

By its holding, the supreme court effectively did away with the distinction between whether a conviction can be "based upon evidence of knowledge and control over the place where the contraband is located , in this case a residence, as opposed to evidence of control over the contraband itself ." Brown , 412 So.2d at 423 (Anstead, J., concurring) (emphasis added). Instead, physical presence in a jointly-occupied space where contraband is in plain view is legally sufficient to convict.

Brown has many ramifications, a few applicable to this case. The first is a practical one. It is possible, if not likely, that a college student living in a multi-bedroom townhouse on a college campus may have a roommate at some point who possesses or uses illegal drugs openly (or, as is pertinent to minors such as S.S., lawfully possesses and uses alcohol) and leaves them in "plain view" in a "common area" of the townhouse from time to time. Under Brown , evidence of actual control of the contraband itself is unnecessary; all that is required to sustain a conviction based on a constructive possession theory is that the defendant be a resident of a jointly-occupied apartment, townhouse, or condominium and that contraband be found in plain view in his presence. Brown effectively held that a jury is not legally compelled to find any independent evidence linking the joint occupant to the particular drug seized under these circumstances. "On the contrary, the jury is permitted to infer that the joint occupant 'controlled' the illegal drugs based merely on evidence that the illegal drugs were discovered in plain view and in his presence." Robert J. Surrette, Constructive Possession of Illegal Drugs , 12 STETSON L. REV. at 522.

An otherwise blameless dormmate-whose only transgression is being present when contraband is found in a common area of a living room, dining area, or kitchen-can be swept into the same category as those actually using or possessing the illegal items, leaving the fact-finder much discretion to decide guilt versus innocence. Applied here, a fact-finder could conclude that S.S. was present during the marijuana festivities in the common area of the townhouse, but lacked control over the situation and the raucous partiers in his midst; he was in the wrong place at the wrong time, having nothing to do with those raising Cain. See Wade v. State , 558 So.2d 107, 108 (Fla. 1st DCA 1990) ("After thoroughly reviewing the record, we have concluded that the State proved only that appellant was in the room at the same time four other people were there."). A fact-finder could just as readily find S.S. to have constructive possession of the contraband, as the trial judge did, notwithstanding the testimony to the contrary by S.S.'s roommate, which may have been disbelieved. Either outcome would be permissible on this record, even if one more closely approximates the truth.

Another ramification is the breadth of Brown 's holding. Years ago, before Brown was decided, our Court in a constructive possession case said:

We decline to presume that all inhabitants and guests in a private home are in control and constructive possession of marijuana being smoked by one or merely some of them . [Defendant's] movement to close the door once opened [after police had knocked] betrayed his consciousness that marijuana was in the place, but hardly was additional evidence of his possession of it. The officers' sense of smell reliably told them that marijuana was being consumed within, but it could not and did not identify [Defendant] or any other occupant as a misdemeanant or felon.

Britton v. State , 336 So.2d 663, 665 (Fla. 1st DCA 1976) (emphasis added). Brown effectively weakened the italicized language, such that any occupant who is physically present in a common area of a jointly-occupied dwelling where contraband is in plain view is subject to a constructive possession charge. By this prevailing legal standard, the record contains competent, substantial evidence by which the trial judge could conclude that S.S. had constructive possession of the marijuana and mason jar. For this reason, it was proper to deny S.S.'s motion for judgment of dismissal.

      See McCollum Hall , HOUSING.FSU.EDU, https://housing.fsu.edu/_commonContent/residencehalls/mccollum-hall.html (last visited Mar. 26, 2018) ("Edith McCollum served as the Director of Housing at the Florida State College for Women/Florida State University from 1941-1970. McCollum Hall was completed and occupied before receiving its name, simply known as 'Hall X' until given its namesake.").

      See Shake , Urban Dictionary , https://www.urbandictionary.com/define.php?term=shake (last visited Mar. 23, 2018) (defining "shake" as "[t]he cruddy end bits of a large bag of weed" or "loose marijuana in the bottom of any bag"). The mason jar had so few remnants that the defense asserted they could not find any, but the prosecutor was able to locate some.

      The apparatus was not retained as evidence. A "grinder" was also present, but it was never in S.S.'s presence in the common area; instead, one of the visitors had secreted it in his pocket (when Officer Martina arrived), where it was found later.

      S.S. pled no contest to a third charge, criminal mischief, arising from damage he caused to university property after he learned he was being cited for possession and spoke to his father on the phone.

      Despite this statement in the State's answer brief and its similar statement during closing argument, no evidence supports that S.S. smoked marijuana, reeked of its odor, or was inebriated by it. No one testified that S.S. smoked marijuana; his roommate testified to the contrary. S.S. appeared to be "under the influence" but the arresting officer said she couldn't make a judgment whether it was due to alcohol, marijuana, or something else. She testified that the smell of marijuana was present at all times, including when she interviewed S.S. She never said, however, that the odor emanated directly from S.S. Given the State's claim that S.S. smoked and was inebriated by marijuana, it is unclear why the trial judge refused to allow reference to test results from the Juvenile Probation Office, which reflected that S.S. tested "negative for all substances," the record not providing an unequivocal explanation.

      S.S. does not dispute that the small living space, where occupants of the four-bedroom townhouse have communal rights of use, is a "common area" for purposes of a constructive possession theory. Evidence could show that access, use, or control of a "common area" might, in actuality, be off-limits to a roommate whose co-tenants have excluded him; but that is not the case here. Indeed, this case is similar to Bradshaw v. State , 509 So.2d 1306 (Fla. 1st DCA 1987), where Bradshaw lived in the house along with her siblings. Five people, including Bradshaw, were present in the house when a search warrant was executed. Officers found a plastic baggie containing cocaine on the top of the kitchen counter, although Bradshaw was not in the kitchen when the officers entered the house. Id. at 1308. Citing Brown v. State , 428 So.2d 250, 252 (Fla. 1983), this Court found "that the evidence that cocaine in a plastic baggie was in plain view on the counter top in the kitchen, a common area of appellant's house over which she had control, was sufficient to create a question for the trier of fact as to constructive possession of the cocaine." Id. at 1309 (emphasis added). That a "common area" is involved distinguishes S.S.'s situation from the juvenile in D.K.W. v. State , 398 So.2d 885, 886 (Fla. 1st DCA 1981), which reversed a charge of constructive possession of marijuana. In D.K.W. , two juveniles were found near marijuana, one claimed it was his alone, and both were found by police in the presence of a nearby "roach." Id. at 885. The marijuana in D.K.W. was located "in a public place, behind a wall at a school, in spacial proximity equally near both boys," rather than in a townhouse units' common area. Id. at 886. As such, that case-upon which S.S. relies heavily-is inapplicable.

      Knowledge of the illicit nature of the contraband was eliminated legislatively in 2002. See Ch. 2002-258, § 1, at 1848, Laws of Fla; § 893.101(2), Fla. Stat. (2018) ("[K]nowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.").

      Brown v. State , 412 So.2d 420, 422 (Fla. 4th DCA 1982), approved , 428 So.2d 250 (Fla. 1983).

      The Florida Supreme Court recently said that the two elements of construction possession theory are "(1) dominion and control over the contraband and (2) knowledge that the contraband was within his presence." Knight , 186 So.3d at 1012 (emphasis added). But the italicized statement appears to be shorthand for control over the place where contraband was located, not the contraband itself. In Knight , at issue was whether a suitcase with a luggage tag bearing Knight's name, found in the back seat of a vehicle driven by Knight, was within his control. The supreme court concluded that it was, saying the "State demonstrated Knight's dominion and control over the cannabis by introducing evidence that Knight owned the suitcase containing it. Although Knight did not testify that he owned the luggage, the jury could have instead accepted [the arresting deputy's] testimony that the suitcase contained a luggage tag identifying Knight as its owner." Id.

      Soon after Brown was decided, a commentator said the "effect of the Florida Supreme Court's holding is that a joint occupant living with others who insist on using illegal drugs must either vacate the premises or report the violation." Robert J. Surrette, Constructive Possession of Illegal Drugs: The Inferential Leap from Joint Occupancy to Joint Control , 12 Stetson L. Rev. 512, 524 (1983). In the higher education context, immediately vacating a dormitory may be difficult, but not impossible; reporting the situation, though the admirable and upstanding choice, may cause ostracism, retaliation, or worse, but reporting does not forestall a constructive possession charge, it merely presents the reporter in a better light if charged. Another option is to insist that roommates keep common areas drug-free, which presents its own challenge-known in economics as the "tragedy of the commons"-where everyone has an equal right to use a common resource, resulting in over-utilization because no one can be excluded; attempts to self-regulate a "common area" in a multi-bedroom townhouse or dormitory presents a similar challenge, particularly where group quarters are shared with strangers. See Robert C. Ellickson, Informal Order Around the Hearth , 112-13 (2008) ("Some colleges and universities encourage students who are roommates to negotiate detailed written contracts to govern behavior in shared space. These contracts make sense, if they ever do, when roommates are total strangers, such as entering freshman.").


text:
    James D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0827
    District Court of Appeal of Florida, First District.
    May 11, 2018
    James D. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED . See Fla. R. App. P. 9.141(c)(5)(A).

Lewis, Makar, and M.K. Thomas, JJ., concur.