author: SCALES, J.

text:
    Shane BURNETT, Petitioner, v. TARGET CORPORATION, Respondent.
    No. 3D17-2625
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Shane Burnett, in proper person.
    Bowman & Brooke, LLP, Lake Mary, and Stephanie M. Simm and Shawn Y. Libman, Coral Gables, for respondent.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

Petitioner Shane Burnett seeks second-tier certiorari review of an order by the Appellate Division of the Miami-Dade Circuit Court ("Circuit Court") dismissing his appeal of an order rendered against him by the Miami-Dade County Court's Small Claims Division. We grant Burnett's petition because the circuit court dismissed Burnett's appeal without affording him the requisite procedural due process.

I. Relevant Facts and Procedural Background

In April of 2017, Burnett appealed to this Court an order of the Miami-Dade County Court Small Claims Division dismissing, with prejudice, Burnett's Statement of Claim against Target Corporation (case number 3D17-994). Contemporaneously with his notice of appeal, Burnett filed with this Court a Motion to Appear in Forma Pauperis, seeking, pursuant to Florida Rule of Appellate Procedure 9.430, a waiver of the statutorily required appellate filing fee. Without ruling on Burnett's Forma Pauperis motion, we, sua sponte , transferred Burnett's appeal, including Burnett's Forma Pauperis motion, to the Circuit Court.

In May of 2017, Burnett filed his initial appellate brief in the Circuit Court, and Target responded by filing a June 5, 2017 motion to dismiss Burnett's appeal. Target's dismissal motion asserted, among other things, that Burnett's appeal should be dismissed for Burnett's failure to pay the $287.00 filing fee for the appeal. On June 15, 2017, the appellate panel of the Circuit Court entered two separate orders: (i) an order granting Burnett's Motion to Appear in Forma Pauperis; and (ii) a related order denying Target's motion to dismiss Burnett's appeal.

On June 20, 2017, Target then filed a detailed Motion for Rehearing, arguing that the Circuit Court should not have granted Burnett's Forma Pauperis motion. Target argued that Burnett had failed to complete the required Application for Determination of Civil Indigent Status ("Application") and that Burnett had filed some eighteen civil cases during the preceding two years, paying thousands of dollars in filing fees. Target further argued that the Circuit Court failed to take into consideration that, in the same two-year period, Burnett had been declared indigent in only three of twenty-five criminal matters in which Burnett had been named as a defendant.

It appears that on August 28, 2017, the appellate panel of the Circuit Court signed an order granting Target's June 20th rehearing motion. The panel checked the "Granted" box in the form order; then the order states: "Appellant shall file the Application for Determination of Civil Indigent Status within thirty (30) days of the date of this order. Failure to do so may result in the granting of motion to dismiss appeal." This order does not vacate either of the June 15th orders; and, oddly, both this order, and the Circuit Court's docket sheet, indicate that this order was not docketed by the Circuit Court until September 27, 2017 ("September 27 Order").

Then, prior to the expiration of the thirty days referenced in the September 27 Order (regardless of whether this 30 days is calculated from August 28 or September 27), the same appellate panel signed an unelaborated order denying Target's June 20th Motion for Rehearing. This order-plainly contradicting the September 27 Order-is both signed and docketed on September 28, 2017 ("September 28 Order").

On October 5, 2017, Burnett filed a motion seeking clarification of the Circuit Court's "competing orders." Target filed no response to Burnett's clarification motion. Rather, on November 8, 2017, Target filed a renewed motion to dismiss Burnett's appeal alleging that, among other things, Burnett failed to file an Application as required by the September 27 Order. Target's motion makes no mention of the "competing" September 28 Order. On November 17, 2017, the Circuit Court's appellate panel entered an order denying Burnett's October 5th motion for clarification. The order states that Burnett has "failed to comply with the court order dated August 28, 2017." Again, this November 17 order vacates neither of the same panel's June 15th orders, nor the September 28 Order denying Target's June 20th Motion for Rehearing.

Finally, on November 29, 2017, a different appellate panel of the Circuit Court entered the challenged unelaborated order granting Target's November 8th renewed dismissal motion. Burnett sought to challenge this November 29, 2017 dismissal order both by appealing the order and petitioning this Court for mandamus relief; we treated Burnett's challenge to the order as a petition seeking certiorari review and ordered briefing accordingly. With his notice of appeal, Burnett also filed with this Court a Motion to Appear in Forma Pauperis (seeking waiver of the statutorily required filing fee); and we carried this Forma Pauperis motion with the case.

II. Standard of Review

We employ second-tier certiorari review of an order of the circuit court's appellate division dismissing an appeal, Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 396 (Fla. 3d DCA 2009), and grant certiorari relief only when the circuit court has not afforded procedural due process or has violated a clearly established principle of law resulting in a miscarriage of justice. I Creatives Inc. v. Premier Printing Sols., 163 So.3d 606, 607 (Fla. 3d DCA 2015).

Our analysis is guided by two well-settled principles: (i) due process requires giving a litigant reasonable notice of a deadline before that deadline arrives; and (ii) Florida's public policy favors deciding controversies on their merits. Nicaragua Trader Corp., 19 So.3d at 396-97. We are also mindful that dismissal of an appeal is regarded as an extreme sanction and is therefore normally reserved for the most flagrant violations of the appellate rules. See United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004).

III. Analysis

Burnett argues that he was not afforded adequate procedural due process when the Circuit Court dismissed his appeal because the Circuit Court's conflicting orders failed to provide the requisite notice that his appeal would be dismissed if he did not complete the Application.

While not clear from the Circuit Court's unelaborated November 29th dismissal order, it appears the Circuit Court dismissed Burnett's appeal because Burnett failed to complete the Application as required by the September 27 Order granting Target's June 20th rehearing motion. Yet, three Circuit Court orders belie any such requirement: (i) the June 15, 2017 order granting Burnett's motion to appear in Forma Pauperis, (ii) the related June 15, 2017 order denying Target's motion to dismiss Burnett's appeal for failure to pay a filing fee, and (iii) the September 28 Order expressly denying Target's June 20th rehearing motion directed toward these June 15, 2017 orders. Even when the inconsistency between the September 27 Order and these three orders was specifically brought to the attention of the Circuit Court by Burnett's October 5th Motion for Clarification, none of these three orders was ever vacated by the Circuit Court.

Thus, Burnett was put in the unenviable position of having to divine: (i) whether his Forma Pauperis motion "remained" granted, (ii) which Circuit Court orders were effective, and (iii) which Circuit Court orders were erroneous or impliedly had been set aside. Because the September 28 Order-plainly denying Target's June 20 rehearing motion-was rendered after the September 27 Order purportedly granting Target's June 20th rehearing motion (and containing the requirement that Burnett complete the Application within thirty days), and because this September 28 Order was never vacated by the Circuit Court, it was not entirely unreasonable for Burnett to conclude that the Circuit Court simply had revisited its earlier September 27 Order, and was denying Target's June 20th rehearing motion.

While on this record we cannot be certain, the Circuit Court's September 28 Order probably was erroneous and entered accidentally; and, to be on the safe side, Burnett either should have paid the filing fee or completed the Application, especially because Burnett's initial briefing of his appeal was complete. Given the unique circumstances of this case, however, as well as the confusion caused by the Circuit Court's "competing orders," Burnett's due process argument is well taken.

If it were the Circuit Court's desire for the parties to ignore the September 28 Order, or for that order to have no force and effect, the Circuit Court should have-either sua sponte or as part of its adjudication of Burnett's October 5th Motion for Clarification-vacated or otherwise set aside the order. The September 28 Order, though, was not set aside; and because this September 28 Order materially conflicted with the September 27 Order, we conclude that the Circuit Court did not provide reasonable notice that Burnett's appeal would be dismissed if Burnett did not complete the Application. Burnett's appeal was therefore dismissed without affording Burnett the requisite procedural due process. See I Creatives, 163 So.3d at 608.

IV. Conclusion

We therefore grant the petition, quash the November 29, 2017 dismissal order, and remand for further proceedings.

      While neither the record nor the Circuit Court's docket sheet makes reference to an earlier order adjudicating Burnett's October 5th clarification motion, the Circuit Court's docket sheet contains an October 23, 2017 entry indicating that an order denying Burnett's clarification motion was received by return mail on this date.

      See Fla. R. App. P. 9.040(c).

      We also grant Burnett's December 7, 2017 Motion to Appear in Forma Pauperis filed with this Court in conjunction with this case, which motion we carried with the case's merits. Our adjudication of this December 7th motion, however, should not be construed as adjudicating or opining upon Burnett's May 2017 Motion to Appear in Forma Pauperis, initially filed in this Court in case number 3D17-994 and transferred to the Circuit Court.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Rita D. GARCIA, Appellant, v. FIRST COMMUNITY INSURANCE COMPANY, Appellee.
    No. 3D17-968
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Lopez & Best, and Virginia M. Best and Johanna M. Menendez, for appellant.
    Klein Glasser Park & Lowe, P.L., and Joseph H. Lowe, Andrew M. Feldman, and Nicole M. Reid, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   LAGOA, J.

Rita D. Garcia ("Garcia") appeals from a final summary judgment entered in favor of First Community Insurance Company ("First Community"). Because genuine issues of material fact exist as to the cause of the loss, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Garcia owns property located at 3730 S.W. 84th Avenue in Miami (the "property"). The property was insured under a homeowner's policy assigned to First Community. The relevant provision of the policy at issue provides:

COVERAGE A-DWELLING and COVERAGE B-OTHER STRUCTURES
We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property.
....
We do not insure, however, for loss:
....
2. Caused by:
....
h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.
i. Any of the following:
(1) Wear and tear, marring, deterioration;

On or about March 29, 2014, Garcia discovered water damage within the property, allegedly due to a roof leak. Garcia gave notice of the loss to First Community. First Community retained forensic engineer, Ivette Acosta ("Acosta"), to inspect the property. Acosta inspected the property on June 10, 2014. Following an investigation, which included the findings of Acosta's inspection of the property, First Community denied coverage.

On August 19, 2015, Garcia filed a complaint against First Community alleging breach of contract. Garcia subsequently filed an amended complaint on August 4, 2016, adding her husband, Abelardo Alvare ("Alvare"), as a plaintiff. The amended complaint alleged that "[o]n or about, March 29, 2014, Plaintiffs discovered water damage within the insured property due to a roof leak, which is a covered loss under the insurance policy." Garcia and Alvare alleged that they provided First Community with a damage estimate in the amount of $22,986.66. They further alleged that the policy "provides coverage for direct physical loss to the Plaintiffs's [sic] property due to roof leak mentioned herein."

First Community filed an answer and affirmative defenses to the amended complaint. As its sixth affirmative defense, First Community alleged that the damages, if any, were caused by the "age and wear and tear of the roof."

First Community filed a motion for summary judgment and argued that the claimed damages were not subject to coverage under the policy. First Community relied on Acosta's conclusions in her report that "[t]he cause of the water intrusion through the roof [was] a result of a combination of age-related deterioration, tree branch abrasions, and construction defects" and Acosta's conclusions that "[t]he face nails observed on the shingles create[d] a direct path for water to penetrate the structure[, which] is considered a construction defect."

In opposition to First Community's motion for summary judgment, Garcia and Alvare filed the affidavit and report of a professional engineer, Alfredo Brizuela ("Brizuela"), who inspected the property on March 28, 2017, and also reviewed Acosta's report. Brizuela attested that "there is insufficient evidence to rule out that the damages were caused by hail impact or wind uplift damage caused by a one-time occurrence." He further attested that based on his own findings and inspection, "there is no evidence to support any contention that the damages reported by the insured in this claim are age-related or long term in nature." In Brizuela's report, which was attached to his affidavit, Brizuela concluded that "the damages observed are systematic of high rain and/or wind events that occurred in the days leading up to and on the D.O.L. The dynamic force of the winds caused an opening in the roofing system by uplifting and debonding the shingles (causing damage to the underlayment) through which rain water was able to enter, causing water damage to the interior of the building."

Following a hearing on First Community's motion for summary judgment, the trial court subsequently granted First Community's motion and entered final judgment in favor of First Community. This timely appeal ensued.

II. STANDARD OF REVIEW

The standard of review for a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Moreover, in reviewing a summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. Tropical Glass & Const. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009) ; see also Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008) ; Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

III. ANALYSIS

"Summary judgment is proper if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law." Tropical Glass, 13 So.3d at 158 ; see also Vander Voort v. Universal Prop. & Cas. Ins. Co., 127 So.3d 536, 538 (Fla. 4th DCA 2012) ("Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law."); Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789, 790 (Fla. 3d DCA 2010) ("A trial court may enter a summary judgment when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter of law."). "It is well established that on a motion for summary judgment, the movant has the burden 'to demonstrate that the facts show that the party moved against cannot prevail.' " Alfre Marble Corp. v. Twin Stone Designs & Installations, Inc., 44 So.3d 193, 194 (Fla. 3d DCA 2010) (quoting Fla. E. Coast Ry. Co. v. Metro. Dade County, 438 So.2d 978, 980 (Fla. 3d DCA 1983) ). Once the movant establishes that there are no genuine issues of material fact, " 'the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.' " R. Plants, Inc. v. Dome Enters., Inc., 221 So.3d 752, 754 (Fla. 3d DCA 2017) (quoting Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) ); see also McNabb v. Taylor Elevator Corp., 203 So.3d 184, 185 (Fla. 2d DCA 2016) ("Once a movant meets his or her initial burden, the burden shifts to the opposing party to come forward with evidence to the contrary.").

Of particular relevance here, "[i]n ruling on a motion for summary judgment, the court may neither adjudge the credibility of the witnesses nor weigh the evidence." Sierra, 767 So.2d at 525 ; see also Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA1999) ("In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence."); Pita v. State St. Bank & Tr. Co., 666 So.2d 268, 268 (Fla. 3d DCA 1996) ("On a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."). Furthermore, "[i]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991) ; see also Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000) ("[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.").

We agree with Garcia that the trial court erred in granting summary judgment in favor of First Community where the conflicting reports of the parties' experts established that there was a genuine issue of material fact as to the cause of the loss. In its motion for summary judgment, First Community argued that the claimed damages were not subject to coverage under the policy because there was no evidence of any openings in the roof, and because coverage for the loss was equally excluded under the policy's "wear and tear" exclusion. In support of its motion for summary judgment, First Community relied upon the report produced by its engineer, Acosta, in which she concluded that "[t]he cause of the water intrusion through the roof is a result of a combination of age-related deterioration, tree branch abrasions, and construction defects."

In response to First Community's motion, Garcia filed the affidavit and report of her engineer, Brizuela. In his report, Brizuela opined that "the damages observed are systematic of high rain and/or wind events that occurred in the days leading up to and on the D.O.L. The dynamic force of the winds caused an opening in the roofing system by uplifting and debonding the shingles (causing damage to the underlayment) through which rain water was able to enter, causing water damage to the interior of the building."

The conclusions reached by the opposing engineers are clearly at odds. Given this conflict in the material evidence as to the cause of loss, the trial court erred in entering final judgment in favor of First Community. See Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) ("If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it."); Sierra, 767 So.2d at 525 ("If the 'slightest doubt' exists, then summary judgment must be reversed.").

First Community asserts that Brizuela's opinion was properly rejected by the trial court, as Brizuela's inspection of the property occurred three years after the date of the loss, whereas First Community's expert inspected the property less than three months after the date of loss. The consideration of the timing of Brizuela's inspection of the property in relation to that of First Community's engineer, however, goes to the credibility and weight of Brizuela's opinion regarding the cause of loss. It is well-established that issues of credibility and weight of the evidence are not appropriate in a summary judgment determination. See Byrd v. BT Foods, Inc., 948 So.2d 921, 923 (Fla. 4th DCA 2007) ("Where credibility issues impact the determination of material facts, summary judgment is not appropriate."). Indeed, a "trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding." Juno Indus., Inc. v. Heery Int'l, 646 So.2d 818, 822 (Fla. 5th DCA 1994).

IV. CONCLUSION

Because a genuine issue of material fact exists as to the cause of the loss to the property, entry of final summary judgment in favor of First Community was improper. Accordingly, we reverse the final summary judgment entered in favor of First Community and remand the cause to the trial court for further proceedings.

Reversed and remanded.


author: LINDSEY, J.

text:
    Dennis ZARUDNY, Appellant, v. Evgeniya ZARUDNY, Appellee.
    No. 3D17-451
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Michael P. Mirer, for appellant.
    Evgeniya Zarudny, in proper person.
    Before EMAS, FERNANDEZ, and LINDSEY, JJ.
   LINDSEY, J.

Appellant Dennis Zarudny (the "husband") appeals the trial court's Final Judgment of Injunction for Protection Against Domestic Violence with Child(ren) (the "Final Injunction") entered on February 16, 2017. This Court has jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(1)(A). Because the Final Injunction was supported by competent, substantial evidence, we affirm.

I. BACKGROUND

Dennis and Evgeniya Zarudny had been married for nearly seven years when things began to unravel during the fall of 2016. However, it is the events commencing on New Year's Eve of 2016, culminating with the Petition filed on January 5, 2017 by Evgeniya Zarudny (the "wife") For Injunction For Protection Against Domestic Violence With Children (the "Petition"), that bring this case before us.

In the Petition, the wife alleged that the husband is addicted to alcohol, abuses marijuana, and refuses to take medication for his mental disability. The wife further alleged that on December 30, 2016, she got into a verbal conflict with the husband over booking flights for a vacation. Following the argument, the wife stated that the husband was upset and began drinking while she took their daughter to the swimming pool. The wife further stated that on December 31, 2016, she woke up and found the husband asleep on the couch after a night of drinking and that the husband started drinking again around 7:30 a.m. and proceeded to consume alcohol throughout the rest of the day.

The wife alleged that a physical confrontation between her and the husband occurred later that day when the husband disabled the lock to their twenty-month-old daughter's bedroom door in order to gain entry while the wife was putting the daughter down for a nap. The wife stated that, despite her protest that their daughter needed to sleep, the husband began playing with the daughter and shoved the wife into the door to prevent the wife from stopping him. She further stated that a verbal argument followed, after which the wife left the apartment with their daughter for a few hours.

The wife and the daughter returned later in the evening of December 31, 2016, whereupon the wife stated that the husband asked her to prepare everything for New Year's Eve while he took a nap on the couch. The wife also stated that the husband was upset that she woke him up only twenty minutes before midnight and that she only bought one bottle of champagne. Thereafter, according to the wife, in the early morning hours of January 1, 2017, the husband continued to drink heavily and, despite the fact that she and the daughter were sleeping nearby, the husband purposefully turned the television volume extremely loud. The wife stated that after she disabled the television by cutting the cable cord, the husband broke the bedroom lock and attempted to physically remove the wife from the bed by flipping the mattress and ripping the sheets off. In addition, the wife stated that the husband then, while still very intoxicated, proceeded to play with their crying daughter despite the wife's pleas to stop. Afraid for the safety of the daughter, the wife stated that she eventually was able to pack a bag and leave the apartment with the child around 1:00 or 2:00 a.m.

Then, the wife stated, when she and the daughter returned the following morning, she and the husband got into a heated verbal argument during which the husband threatened to send the wife back to Russia and take away the daughter. The wife took cellphone videos during the verbal argument that showed the husband continually screaming at the wife in a threatening manner. Fearing for her own safety as well as the daughter's safety, the wife alleged, she called the police.

On January 5, 2017, the wife filed the Petition and a temporary injunction was issued. A hearing was held, after proper notice on February 16, 2017, where the wife testified as to the allegations in the Petition. The wife described physical abuse by the husband within the last three years, explaining how she had previously called police because of alleged physical violence. The wife further described the husband's harassing behavior between December 31, 2016 and January 1, 2017, when he relentlessly followed the wife around the apartment to prevent her from having time to herself.

After viewing and considering the cellphone videos, the testimony of the wife and the husband, as well as the demeanor of the witnesses throughout the hearing, the trial court concluded that the wife was in reasonable fear of the husband and was a victim of domestic violence. The trial court further found the husband's threatening and violent behavior especially concerning because it occurred in front of the daughter. The Final Injunction, issued on February 16, 2017, was for a period of one year and required the husband to attend the Batterer's Intervention Program, complete anger management classes, and be evaluated for alcohol abuse. Additionally, the trial court explained at the conclusion of the injunction hearing that the husband's visitation rights with the daughter, the living arrangements between the husband and the wife, and the temporary child support, among other issues, would have to be resolved with the Case Manager or through the Family Court. The Final Injunction also incorporated the Case Manager's recommendation that the wife temporarily have 100 percent time-sharing responsibility of the daughter, while the husband was permitted one scheduled, supervised visit per week. This timely appeal follows.

II. STANDARD OF REVIEW

A trial court's conclusion of law that a petitioner is entitled to a final judgment of injunction against domestic violence is reviewed de novo . See Achurra v. Achurra, 80 So.3d 1080, 1082 (Fla. 1st DCA 2012) (citing Puskar v. Puskar, 29 So.3d 1201 (Fla. 1st DCA 2010) ). "When evaluating whether competent, substantial evidence supports a trial court's ruling, [l]egal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal." Stone v. Stone, 128 So.3d 239, 240 (Fla. 4th DCA 2013) (alteration in original) (quoting Brilhart v. Brilhart ex rel. S.L.B., 116 So.3d 617, 619 (Fla. 2d DCA 2013) ).

III. ANALYSIS

The husband contends the trial court abused its discretion when it entered a permanent injunction against him because it was not based on competent, substantial evidence. The husband further contends the trial court committed reversible error when it awarded sole custody of the husband and wife's minor daughter to the wife and limited the husband's contact with the daughter to supervised visitation without first considering whether it was in the best interest of the daughter.

Under section 741.30, Florida Statutes (2017), a trial court may grant an injunction when "the petitioner is either the victim of domestic violence" or where there is "reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." § 741.30(6)(a). Under section 741.28(2), Florida Statutes (2017), "[d]omestic violence" is defined as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." § 741.28(2). Thus, domestic violence "requires some showing of violence or a threat of violence," while general relationship problems and uncivil behavior are not enough. See Leal v. Rodriguez, 220 So.3d 543, 545 (Fla. 3d DCA 2017) (first quoting Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005) ; and then citing Randolph v. Rich, 58 So.3d 290, 292 (Fla. 1st DCA 2011) ).

In order for a trial court to issue an injunction for protection against domestic violence, the petitioner must demonstrate that he or she has an objectively reasonable apprehension that they are in "imminent danger of becoming the victim of any act of domestic violence." Randolph, 58 So.3d at 291 (quoting § 741.30(1)(a) ). When determining whether a petitioner has reasonable cause to believe he or she is in such imminent danger, the trial court "must consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole." Leal, 220 So.3d at 545 (quoting Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (internal quotations omitted) ).

Here, based on the testimony and evidence in the record, we conclude, as the trial court did, that the wife sufficiently demonstrated an objectively reasonable belief that she was in imminent danger of becoming a victim of domestic violence. Contrary to the claims of the husband, the Final Injunction order was not an abuse of discretion by the trial court because it was based on competent, substantial evidence.

After considering the cellphone videos of the husband's frightening screams and the testimony of the wife and husband, as well as the demeanor of the witnesses during the hearing, the trial court found the wife to be "very credible," the victim of domestic violence, and in reasonable fear of continued domestic violence at the hands of the husband. Moreover, the husband repeatedly testified as to how he was angry and upset with the wife and did in fact consume large quantities of alcohol between December 30, 2016 and January 1, 2017. The husband also confirmed that he "disabled all locking mechanisms" throughout the apartment and that the wife previously called the police because "she was afraid that I'm gonna beat her up." Although the husband denied shoving the wife into the door on December 31, 2016, he did admit to "[m]aybe a touch."

The instant case is similar to Leal, where this Court found sufficient evidence to support a domestic violence injunction. 220 So.3d at 546 ("[T]here was competent substantial evidence supporting the trial court's finding that [the wife] had a reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence."). In Leal, there was evidence of prior violence and angry abusive conduct, as well as controlling behavior by the husband that included threats to the wife's immigration status. Id. Here, too, we have evidence of angry and abusive conduct-which occurred at times in front of the minor child-as well as evidence of prior violence.

There is also evidence of controlling behavior by the husband, such as his threats to send the wife back to Russia and to take away the daughter. Furthermore, there is evidence that the husband has a serious substance abuse problem and did in fact become physical with the wife on December 31, 2016. Thus, we conclude that there was competent, substantial evidence supporting the trial court's Final Injunction order.

Lastly, the husband argues the trial court erred in approving a temporary time-sharing plan where the wife was awarded 100 percent of the time-sharing, while he was only permitted one supervised visit per week, because the trial court failed to first consider whether it was in the best interest of the child. More specifically, the husband contends that the trial court failed to properly consider the factors enumerated in section 61.13(3)(a)-(t), Florida Statutes (2017). We disagree.

"The shared parental responsibility law, section 61.13, Florida Statutes (2002), applies to custody disputes between unmarried parents as well as married parents." Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003) (citing Stepp v. Stepp, 520 So.2d 314 (Fla. 2d DCA 1988) ). Although separate findings as to each factor in section 61.13(3) are not required to sustain a temporary award, nevertheless, the record or the final judgment must reflect that the custody determination was made in the best interests of the child. Id. at 503 (citing Williams v. Williams, 845 So.2d 246 (Fla. 2d DCA 2003) ); see also Ryan v. Ryan, 784 So.2d 1215 (Fla. 2d DCA 2001) ; Julian v. Bryan, 710 So.2d 1037 (Fla. 2d DCA 1998) ; Bader v. Bader, 639 So.2d 122 (Fla. 2d DCA 1994) (en banc); Armstrong v. Panzarino, 812 So.2d 512 (Fla. 4th DCA 2002). In Spano v. B.B., this Court noted that "where custody, visitation and support considerations are implicated in the context of alleged domestic violence, the better practice is for the trial court to enter a temporary order under Chapter 741 while directing the parties to litigate custody and visitation matters in family court." Spano v. BB ex rel. Bruce, 947 So.2d 635, 636 (Fla. 3d DCA 2007) (citing Cleary v. Cleary, 711 So.2d 1302 (Fla. 2d DCA 1998) ).

A review of the injunction hearing transcript reveals that the trial court was especially cognizant of the child's best interest and that the husband's threatening and abusive behavior occurred "in front of th[e] child." The trial court also considered how violent and verbal abuse is exacerbated in situations, like here, where children see and hear it. The length of the marriage, history of violence and prior abuse, mental health of the husband, and financial disposition of the parties were all considered. The wife repeatedly testified that she was afraid for the safety of the daughter, and that the daughter's wellbeing was her priority throughout this process. Thus, the trial court clearly considered the factors set forth in section 61.13(3)(a)-(t), Florida Statutes (2017), in determining that the wife temporarily have 100 percent time-sharing responsibility for the daughter. In addition, the trial court advised the husband of the temporary nature of the determination and the opportunity to pursue a change in the time-sharing arrangement through proceedings in the Family Court. Accordingly, we conclude there was competent, substantial evidence supporting the trial court's findings and the Final Injunction.

AFFIRMED.

      Pursuant to section 741.30(6)(b), when determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, a court "shall consider and evaluate all relevant factors," including, but not limited to: (i) "[t]he history between the petitioner and the respondent, including threats, harassment, stalking, physical abuse"; (ii) "[w]hether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner"; (iii) "[w]hether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children"; (iv) "[w]hether the respondent has physically restrained the petitioner from leaving the home"; (v) and "[w]hether the respondent has destroyed personal property" belonging to the petitioner. § 741.30(6)(b)(1) -(10).


author: EISNAUGLE, J.

text:
    Saira HASHMI-ALIKHAN, M.D., Health First, Inc., Health First Physicians Group, Inc., Cape Canaveral Hospital, Inc. and Cape Canaveral Hospital Foundation, Inc., Appellants, v. Geraldine J. STAPLES, as Personal Representative of the Estate of Glenn Staples, Randall B. Rigdon, M.D., Randall B. Rigdon, LLC, Daniel J. Calabrese, P.A., Firas R. Muwalla, M.D., et al., Appellees.
    Case No. 5D16-3735
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018 Rehearing Denied April 24, 2018
    Wilbert R. Vancol and Mary Jaye Hall, of McEwan, Martinez, Dukes & Hall, P.A., Orlando, for Appellants.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Appellee Geraldine J. Staples, as Personal Representative of the Estate of Glenn Staples.
    No Appearance for Remaining Appellees.
   EISNAUGLE, J.

Appellants, Saira Hashmi-Alikhan, M.D., Health First, Inc., Health First Physicians Group, Inc., Cape Canaveral Hospital, Inc., and Cape Canaveral Hospital Foundation, Inc., appeal the trial court's order granting a new trial in favor of Appellee, Geraldine Staples, as Personal Representative of the Estate of Glenn Staples, based upon the finding that the jury's verdict was contrary to the manifest weight of the evidence. In its order, the trial court concluded that Appellants' expert witnesses "gave more general opinions, and were not as knowledgeable to the hematological intricacies of the case." We reverse because the record does not support the trial court's reasons for granting a new trial.

Appellee's husband, Glenn Staples, a sixty-year-old male, presented to the emergency room at Cape Canaveral Hospital at 5:00 p.m. on February 9, 2010, with a platelet count of 1000. A platelet count of 10,000 is considered critically low, a normal count is about 250,000 for a sixty-year-old. At such a low platelet count, life-threatening and organ-threatening bleeds are a concern because the human body cannot adequately form blood clots with so few platelets. By 7:30 p.m., Mr. Staples was diagnosed with acute immune (or idiopathic) thrombocytopeniapurpura ("ITP"), a blood disorder that required treatment to halt his body's destruction of platelets.

Mr. Staples' treating physician, Dr. Alikhan, examined Mr. Staples and consulted with Dr. Muwalla, an on-call hematologist, to assist in managing her patient's rare blood disorder. Dr. Muwalla elected to return to the hospital to personally examine Mr. Staples. At Dr. Muwalla's recommendation, Dr. Alikhan ordered that Mr. Staples receive prednisone, a corticosteroid, and intravenous immunoglobulin ("IVIG"), to treat Mr. Staples' ITP. Dr. Alikhan did not order a platelet transfusion for Mr. Staples, and Dr. Muwalla only recommended a platelet transfusion in the event of a "life-threatening hemorrhage."

Mr. Staples was admitted to the hematology floor of the hospital at 8:40 p.m. His nurse commenced administering IVIG at 10:20 p.m.; however, he experienced an adverse reaction to the IVIG within fifteen minutes (sweating and vomiting), so the nurse discontinued the IVIG and notified Dr. Muwalla. Dr. Muwalla ordered the nurse to restart the IVIG as soon as Mr. Staples stabilized. Around midnight, the nurse called Dr. Muwalla again to report on her inability to restart the IVIG due to Mr. Staples' continuing condition. In response, Dr. Muwalla ordered the nurse to discontinue the IVIG. The nurse conceded she never administered the ordered prednisone to Mr. Staples. The following morning at 5:37 a.m., Mr. Staples was found unresponsive and without a pulse, which was about twelve and a half hours after he presented to the emergency room. Although efforts to resuscitate Mr. Staples were partially successful, he was significantly compromised, never regained consciousness, and was declared brain dead at 9:45 a.m. A CAT scan of Mr. Staples' brain showed a catastrophic intracerebral hemorrhage, and he was pronounced dead at 4:16 p.m. His cause of death was acute cerebral hemorrhage from thrombocytopenia.

During a two-week jury trial, the parties presented expert testimony on the standard of care applicable to Dr. Alikhan, Dr. Muwalla, and the nurse who administered the IVIG. Appellee offered expert testimony that Mr. Staples' condition was treatable, and that Dr. Alikhan and Dr. Muwalla breached the standard of care by (1) failing to order that the IVIG be administered at a reduced rate initially to reduce the risk of an adverse reaction, (2) failing to order both IVIG and prednisone"stat," and (3) failing to order a platelet transfusion for Mr. Staples. On the other hand, Appellants offered expert testimony that (1) all three health care professionals met the standard of care, and (2) given Mr. Staples' extreme condition, there was nothing that could have saved his life.

Importantly, although a great deal of the evidence and argument at trial pertained to IVIG and prednisone, the experts on both sides agreed that IVIG and prednisone take at least twenty-four hours to take effect, and usually longer. Therefore, given that Mr. Staples suffered a catastrophic intracerebral hemorrhage about twelve and a half hours after presenting to the hospital, and was declared brain dead about seventeen hours after presentation, the experts agreed that platelets were the only treatment that could have saved Mr. Staples' life. This testimony was uncontroverted.

The experts could not agree, however, on the propriety of ordering a platelet transfusion. Appellants' expert testified that there are medical risks to ordering platelets, and that platelets should only be ordered in the event of a life-threatening bleed, which the experts agreed Mr. Staples did not have when he was examined by Dr. Alikhan and Dr. Muwalla. In contrast, Appellee's expert opined that the only proper course of action was to order platelets"stat" immediately upon Mr. Staples' admission. Appellee's expert conceded that there are medical risks associated with a platelet transfusion, but opined that the risk of not administering platelets outweighed the risks of doing so.

The jury returned a defense verdict. In response, Appellee filed a motion for a new trial, arguing that the jury's verdict was against the manifest weight of the evidence. The trial court ultimately agreed and granted the motion. On appeal, Appellants argue that the trial court abused its discretion in granting a new trial because the record does not reflect that Appellants' expert witnesses testified only generally or that they were less knowledgeable regarding the hematological intricacies of the case. We agree.

"When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge ...." Cloud v. Fallis , 110 So.2d 669, 673 (Fla. 1959) (citations omitted). "[T]he trial judge can and should grant a new trial if the manifest weight of the evidence is contrary to the verdict." Smith v. Brown , 525 So.2d 868, 870 (Fla. 1988) (citation omitted). Thus, a trial court should grant a new trial "if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record." Cloud , 110 So.2d at 673 (citations omitted). "In making this decision, the trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence." Smith , 525 So.2d at 870 (citation omitted). Nevertheless, the trial court may not act as a seventh juror by substituting its verdict for that of the jury, and "should only intervene when the manifest weight of the evidence dictates such action." Id. ; see also Brown v. Estate of Stuckey , 749 So.2d 490, 494-95 (Fla. 1999). "Not every verdict which raises a judicial eyebrow should shock the judicial conscience." Wackenhut Corp. v. Canty , 359 So.2d 430, 435 (Fla. 1978) (quoting Laskey v. Smith , 239 So.2d 13, 14 (Fla. 1970) ).

Once on appeal, we review a trial court's order granting a new trial for an abuse of discretion. Smith , 525 So.2d at 870. "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Baptist Mem'l Hosp., Inc. v. Bell , 384 So.2d 145, 146 (Fla. 1980) (citation omitted). Moreover, "[t]he fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion." Brown , 749 So.2d at 498. Indeed, "[t]he trial judge's discretion permits the grant of a new trial although it is not clear, obvious, and indisputable that the jury was wrong." Id. at 497 (internal marks omitted).

That said, a trial court's discretion is not unbridled, even in the context of a motion for new trial. Wackenhut , 359 So.2d at 434. For instance, it is well-settled that a trial court abuses its discretion when its reasons for granting a new trial are not supported by the record. Id. at 435-36. "Consequently, to facilitate intelligent appellate review of such orders the reasons which produced the need for the new trial must be set forth in the order." Id. at 434 (citation omitted); see also Fla. R. Civ. P. 1.530(f) ; Baptist Mem'l Hosp. , 384 So.2d at 146.

Here, the trial court abused its discretion because its reasons for granting a new trial are not supported by the record. The pertinent portion of the order granting a new trial states:

The Court finds that the Plaintiff's expert witnesses were clearly more credible than the Defendants' expert witnesses. Plaintiff's experts concisely "zeroed in" on the relevant facts of the case and applied those facts to the standards of care applicable to the health care providers. On the other hand, Defendants' experts gave more general opinions, and were not as knowledgeable to the hematological intricacies of the case.

We have reviewed the expert testimony at trial and find no support for the trial court's conclusion that Appellee's experts "zeroed in" on the relevant facts of the case any more than Appellants' experts. Nor did Appellants' experts give more general opinions or demonstrate less knowledge of the "hematological intricacies of the case."

Although the parties spent considerable time on whether IVIG and prednisone were administered properly, according to the undisputed record evidence, the case turned on whether Mr. Staples' treating physicians should have ordered a platelet transfusion. Mr. Staples coded and remained in an unresponsive state about twelve and a half hours after admission to the hospital. The evidence was undisputed that IVIG and prednisone do not take effect for at least twenty-four hours. Thus, IVIG and prednisone were irrelevant to the cause of Mr. Staples' death, and Appellee's hematologist conceded as much when he testified that only platelets could have saved Mr. Staples' life.

The order granting a new trial is an abuse of discretion as to the nurse who cared for Mr. Staples because she could not have caused Mr. Staples' death. While there was disputed evidence at trial as to whether she met her standard of care in the administration of IVIG and prednisone, the evidence was undisputed that this could not have caused Mr. Staples' death. Moreover, Appellee presented no evidence that the nurse had any authority to order platelets, let alone that she fell below the standard of care for a nurse in failing to do so.

The order granting a new trial is also an abuse of discretion as to Mr. Staples' treating physicians. On the critical issue of platelets, Appellants' expert hematologist testified at length and in significant detail. Contrary to the trial court's reasons for granting a new trial, he applied his opinions on the standard of care and causation regarding platelet transfusions directly to Mr. Staples' condition, and demonstrated a thorough knowledge of the hematological intricacies of the case.

We readily acknowledge that Appellants' expert hematologist was unable to answer, based on his memory, some detailed factual questions about the case during cross-examination. However, counsel's questions were either unimportant or irrelevant to the expert's hematological opinions. While this effort to discredit an expert by testing his memory regarding factual minutia in the case may be a permissible trial tactic, it does not demonstrate that an expert lacks knowledge of the "hematological intricacies of the case." At most, it demonstrates that Appellants' expert hematologist did not prepare to answer questions that were unnecessary to support his proffered opinions.

Therefore, we reverse the order granting a new trial with instructions to reinstate the jury's verdict.

REVERSED and REMANDED.

PALMER and EVANDER, JJ., concur.

      The record reflects that "stat" indicates that the order should be carried out on an emergent basis.

      Even if the IVIG and prednisone treatments were relevant to causation here, we would nevertheless conclude that the trial court abused its discretion because Appellants' experts did not offer "more general opinions" as to those issues and were not less knowledgeable in rendering their respective opinions.

      We note that Appellee's hematologist was likewise unable to answer some questions on cross-examination.


author: PER CURIAM.

text:
    Jerry D. ROBBINS and Lori H. Robbins, Appellants, v. DEUTSCHE BANK NATIONAL TRUST, ETC., et al., Appellees.
    Case No. 5D15-3789
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018 Rehearing Denied April 17, 2018
    Jerry D. Robbins and Lori H. Robbins, Windermere, pro se.
    Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, of Kula & Associates, P.A., Miami, for Appellee Deutsche Bank National Trust, etc.
    No Appearance for Remaining Appellees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) (holding that lack of a transcript is fatal to arguments on appeal which are based on the evidence at trial); Taylor v. Bateman , 927 So.2d 1024, 1026 (Fla. 4th DCA 2006) ("The piecemeal transcripts deprived this court of the ability to review the record as a whole. Such record omissions are fatal to an appeal."); see also Bank of N.Y. Mellon v. Milford , 206 So.3d 137, 137-38 (Fla. 4th DCA 2016) ("Here, the bank filed a copy of the note indorsed in blank with its complaint. Later at trial, through the testimony of the custodian of records for the loan servicer, the bank entered the original note into evidence. This created an inference that the bank was in possession of the note at the time it filed its complaint. Without any evidence to the contrary, this was sufficient to establish standing." (citing Ortiz v. PNC Bank, Nat' Ass'n , 188 So.3d 923, 925 (Fla. 4th DCA 2016) ) ); Labor Ready Se. Inc. v. Australian Warehouses Condo. Ass'n , 962 So.2d 1053, 1055-56 (Fla. 4th DCA 2007) ("[R]eversal is not required in every case where there has not been strict compliance with rule 1.440. Rather, depending upon the circumstances, the mandatory provision of the rule may be waived." (alteration in original) (citation omitted) ).

PALMER, TORPY AND EISNAUGLE, JJ., concur.


text:
    Edward W. BRONNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018.
    Edward W. Bronner, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Lynn Salemi, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the order denying Edward Bronner's postconviction motion as it relates to lower court case number 2012-CF-003297. We reverse the order as it relates to lower court case numbers 2012-CF-005374 and 2012-CF-016391 and remand for consideration of Bronner's claims in light of State v. Miller, 227 So.3d 562, 564 (Fla. 2017).

Affirmed in part; reversed in part.

NORTHCUTT, BLACK, and LUCAS, JJ., Concur.


text:
    Early HARRIS, III, Appellant, v. Tanya Michelle HARRIS, Appellee.
    Case No. 5D17-792
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018 Rehearing Denied May 2, 2018
    Angela Lynn Leiner, of The Law Office of Angela L. Leiner, P.A., St. Petersburg, for Appellant.
    John J. Albert, of Albert & Donnelly, LLC, Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED. See Tramble v. Tramble , 193 So.3d 1105, 1105 (Fla. 5th DCA 2016) (holding that in absence of transcript or statement of evidence, appellate court's review is limited to errors appearing on face of final judgment or in pleadings and other matters in record); Spreng v. Spreng , 162 So.3d 168, 169 (Fla. 5th DCA 2015) (holding that although trial court's order awarding wife attorney's fees was deficient in its factual findings, error was not preserved for appeal because husband never filed motion for rehearing); Hedstrom v. Hedstrom , 123 So.3d 150, 152 n.4 (Fla. 5th DCA 2013) (reiterating that party cannot complain on appeal about inadequate findings unless alleged defect was brought to trial court's attention in motion for rehearing).

SAWAYA, EVANDER and EISNAUGLE, JJ., concur.


text:
    John Phillip BRYANT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-595
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    John Phillip Bryant, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 22, 2016 judgment and sentence rendered in Case No. 2012-CF-32675-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Dontrevius BYRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3724
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    Dontrevius Byron, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging three grounds for relief. We find that the record does not conclusively refute part of Appellant's first ground for relief. As part of ground one, Appellant claims that trial counsel told him that he would not be sentenced to a longer sentence than his codefendants. Although the written plea form was attached to the postconviction court's order, its standard language, stating, "No person has made any promises to me that induced me to enter this plea," is insufficient to refute Appellant's claim of affirmative misadvice. "[A] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence." Collazo v. State, 8 So.3d 1273, 1274 (Fla. 5th DCA 2009) (citations omitted); see Lamkin v. State, 215 So.3d 640, 641 (Fla. 5th DCA 2017) ; Ostane v. State, 73 So.3d 335, 335 (Fla. 5th DCA 2011). Accordingly, we reverse the summary denial of this portion of ground one and remand for the postconviction court to either attach additional portions of the record that conclusively refute the claim or hold an evidentiary hearing. We affirm the summary denial as to the remainder of Appellant's ground one as well as grounds two and three in their entirety.

AFFIRMED in Part; REVERSED in Part, and REMANDED for Further Proceedings.

ORFINGER, WALLIS and LAMBERT, JJ., concur.

      We note that the plea colloquy transcript was not included in the record.


text:
    Justin Crodero MILLAN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-0569
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    Kenneth C. Gallagher, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 6, 2017 order denying Petitioner's motion for post-conviction relief, filed in Case No. 2012-CF-1984-O in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, LAMBERT and EDWARDS, JJ., concur.


text:
    Norman BABERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3541
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    Norman Babers, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Norman Babers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Babers alleges a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well as two pieces of newly discovered evidence. We affirm regarding the claims of newly discovered evidence without further discussion. As to Babers's Brady argument, we remand for the trial court to attach to its order portions of the record conclusively refuting the claim or for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, PALMER and WALLIS, JJ., concur.


text:
    Michael GRAGG, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-797
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    Michael Gragg, Monticello, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 12, 2017 order denying Petitioner's pro se motion for post-conviction relief, filed in Case No. 2012-CF-32584-A in the Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS, LAMBERT and EDWARDS, JJ., concur.


text:
    Donald ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3329
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    Donald Anderson, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Donald Anderson appeals the summary denial of his motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although the brief filed by Anderson states four issues, he declined to address two of them. As to these two issues, we affirm without further discussion. We also affirm without discussion the summary denial of Anderson's claim of newly discovered evidence regarding alleged errors made by a State expert in fingerprint analysis.

Regarding the fourth issue, Anderson argues that the alleged failure of his counsel to investigate and call a material witness warrants relief. We reverse the summary denial of this claim and remand for the trial court to attach to its order portions of the record conclusively refuting this claim or for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, PALMER and EDWARDS, JJ., concur.


text:
    James Dean CLIFTON, Jr., DOC# 80250, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2796
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal proceeding under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm, without comment, the revocation of the probation Mr. Clifton was serving following his 2013 adjudication for two counts of sale of hydrocodone and the resulting sentences imposed after that revocation. However, because the order of revocation does not specify the conditions Mr. Clifton admitted violating-specifically conditions (3) and (10) as set forth in the affidavit of violation-we remand for the entry of an order specifying those conditions. See Rodriguez v. State, 232 So.3d 483 (Fla. 2d DCA 2017) ; Huggins v. State, 216 So.3d 785 (Fla. 2d DCA 2017).

Affirmed; remanded with directions.

KHOUZAM, LUCAS, and SALARIO, JJ., Concur.


text:
    Avonta DINKENS, Appellant, v. DEPARTMENT OF REVENUE and Tina Rena Tillman, Appellees.
    Case No. 2D17-2957
    District Court of Appeal of Florida, Second District.
    Opinion filed April 25, 2018
    Avonta Dickens, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tampa, for Appellee Department of Revenue.
    No appearance for remaining Appellee.
   PER CURIAM.

We affirm the Department of Revenue's child support order without comment and without prejudice to any right Mr. Dinkens may have to seek modification of the support obligations in this administrative order, which were based on temporary custody and time-sharing arrangements that may differ from final time-sharing arrangements established by the final judgment of dissolution of marriage rendered after the order on appeal.

Affirmed.

KHOUZAM, LUCAS, and SALARIO, JJ., Concur.


text:
    H.R.G., JR., Father of H.G., III, a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-692
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 24, 2018
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A, Orlando, for Appellant.
    Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee.
    C. Andrew Roy, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Guardian ad Litem.
   PER CURIAM.

We affirm the final judgment terminating Appellant's parental rights to the minor child on the two statutory grounds pleaded, but we remand to the trial court to strike its reference to section 39.806(1)(c), Florida Statutes (2017), in the final judgment as an additional reason for termination. This was clearly an inadvertent clerical error by the court, as the Department of Children and Families did not plead section 39.806(1)(c) as a ground for termination of Appellant's parental rights nor did it attempt to present evidence or argument at trial under this statute.

AFFIRMED, but REMANDED for correction of clerical error.

SAWAYA, PALMER and LAMBERT, JJ., concur.


text:
    A.H.F., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1148
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    Robert Wesley, Public Defender, Orlando, and Assistant Public Defender, Stephanie Nicole Osman, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the March 2, 2018 dispositions and sentences rendered in Case Nos. CJ17-3799-O and CJ17-3979-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Julian Christian MCINTOSH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3844
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    Julian Christian McIntosh, DeFuniak Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Julian Christian McIntosh, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 post-conviction motion alleging six claims of ineffective assistance of counsel. We reverse the portion of the order summarily denying ground one and otherwise affirm without discussion.

Appellant was charged with three counts: aggravated assault of Jose Barcia, aggravated assault of Brittany DeLemos, and possession of a firearm by a convicted felon. Prior to trial, the State nolle prossed the charge of aggravated assault against Brittany DeLemos, and Appellant was acquitted in a bifurcated jury trial of aggravated assault against Jose Barcia. He was convicted as charged, however, following a separate trial on the count for possession of a firearm by a convicted felon.

In ground one, Appellant alleges that his counsel was ineffective for failing to call Brittany DeLemos at the second trial, claiming that she would have testified that he did not possess a firearm. Although Ms. DeLemos's proffered testimony could have been impeached with a prior inconsistent statement, Appellant alleges that she would have explained at trial that she lied in her 911 call because, at the time, she was "filled with emotions" and "was desperate" to have Appellant out of her house. Given our record, we conclude that Appellant is entitled to an evidentiary hearing on ground one unless the trial court on remand is able to attach records conclusively refuting Appellant's claim.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, TORPY and EISNAUGLE, JJ., concur.

      The record indicates that Brittany DeLemos is also known as Brittany McIntosh.

      Appellant attached an affidavit signed by Brittany DeLemos that is consistent with his allegations.


text:
    Patrick MAXWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3805
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    Patrick Maxwell, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Patrick Maxwell appeals the postconviction court's order granting in part and denying in part his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. The court granted Maxwell, a juvenile nonhomicide offender, a judicial review hearing of his lengthy prison sentence under sections 775.082, 921.1401, and 921.1402, Florida Statutes (2017), but denied his separate request for a resentencing hearing.

Based upon our recent precedent, we agree with Maxwell that he is entitled to a resentencing hearing pursuant to section 921.1402. See Katwaroo v. State , 237 So.3d 446 (Fla. 5th DCA 2018) (holding that it was error for the trial court to amend the juvenile offender's sentence to provide for a review hearing without first conducting a resentencing hearing (citing Davis v. State , 230 So.3d 487, 488 (Fla. 5th DCA 2017) ) ). Therefore, we reverse and remand with directions that the court conduct a full resentencing hearing. We affirm the other issue raised in Maxwell's motion without further discussion.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.


author: EDWARDS, J.

text:
    Scotty B. THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3796
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    Scotty B. Thomas, Okeechobee, pro se.
    No Appearance for Appellee.
   EDWARDS, J.

Scotty B. Thomas appeals the summary denial of his rule 3.850 motion for postconviction relief in which he alleged that his trial counsel was ineffective because he failed to object to the verdict form used or failed to request a proper verdict form. Although Appellant's motion lacked clarity, he made the point that the jury was instructed that it could find him guilty or not guilty of the compound crime of (1) burglary with a battery, or the individual crimes of (2) burglary, (3) battery, or (4) trespass. The verdict form gave the jury the option to decide his guilt regarding the individual crimes and the compound crime of burglary with a battery. However, the verdict form did not provide the option of finding Appellant guilty of both trespass and battery.

Appellant claims that if the jury had been given the option of finding him guilty of both trespass and battery it would have done so, rather than convicting him of burglary with a battery. Appellant further argues that he would have received a shorter sentence under this alternative scenario.

Appellant's argument, that given the evidence and jury instructions, the verdict form should have provided the jury the option to find him guilty of trespass and battery as an additional alternative finding, may have merit. See Stuckey v. State , 972 So.2d 918 (Fla. 5th DCA 2007). However, in denying Appellant's motion, the postconviction court did not address this issue and we cannot determine from the record provided to us whether Appellant's argument has merit. Therefore, we reverse and remand for the postconviction court to consider and address this issue, and either to attach records conclusively refuting Appellant's argument or to conduct an evidentiary hearing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ORFINGER and WALLIS, JJ., concur.


text:
    Jeremy Eugene THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2592
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to the State's Confession of Error, we remand this matter to the trial court for the entry of a nunc pro tunc written order of competency. See Mullens v. State, 197 So.3d 16, 37-38 (Fla. 2016).

REMANDED.

ORFINGER, EVANDER, and LAMBERT, JJ., concur.


author: Per Curiam.

text:
    D.K. JOHNSON, Appellant, v. Vickie BREITENSTEIN and John Joseph Breitenstein, Appellees.
    No. 1D17-1740
    District Court of Appeal of Florida, First District.
    April 30, 2018
    D.K. Johnson, pro se, Appellant.
    Vickie Breitenstein and John Joseph Breitenstein, pro se, Appellees.
   Per Curiam.

AFFIRMED . See Caldwell v. Fla. Dept of Elder Affairs , 121 So.3d 1062, 1064 (Fla. 1st DCA 2013) (" 'Claims for which an appellant has not presented an argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived.' ") (quoting Hammond v. State , 34 So.3d 58, 59 (Fla. 4th DCA 2010) ).

Rowe, Ray, and Makar, JJ., concur.


text:
    HOMESTEAD-MIAMI SPEEDWAY, LLC, Appellant, v. CITY OF HOMESTEAD, Appellee.
    No. 1D18-0891
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Scott A. Cole and Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Appellant.
    John J. Quick and Laura K. Wendell of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for Appellee.
   Per Curiam.

The order to be reviewed by this appeal is a final administrative letter order of the Florida Land and Water Adjudicatory Commission, signed by the Secretary and dated February 1, 2018. However, because the order has not been rendered by the agency, the appeal is premature. An order is rendered when a signed written copy of the order is filed with the clerk of the lower tribunal. Fla. R. App. P. 9.020(i). Where an administrative order has not been filed with the agency clerk, the agency has not rendered its final order. Hill v. Div. of Ret. , 687 So.2d 1376, 1377 (Fla. 1st DCA 1997).

As Appellant acknowledges, the order to be reviewed has not been filed with the agency clerk. See Fla. R. App. P. 9.020(b) (defining "clerk" as "[t]he person or official specifically designated as such for the court or lower tribunal; if no person or official has been specifically so designated, the official or agent who most closely resembles a clerk in the functions performed"). Because the order was not filed, this Court lacks jurisdiction to review it.

DISMISSED .

Makar, Winokur, and Winsor, JJ., concur.


text:
    K.M.M., A Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1047
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    James S. Purdy, Public Defender, and Leon G. Kazanzas, Assistant Public Defender, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 20, 2017 final orders of disposition rendered in Case Nos. 2016-31617-CJCI and 2017-31287-CJCI, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., WALLIS and EDWARDS, JJ., concur.


text:
    COLUMBIA BANK, Appellant, v. Barry D. JOYE; Luronda S. Joye; Greater Southeastern Land Development, LLC; Bruce Naylor; Gary Sorensen ; Southeastern Paving & Construction, LLC ; Tony D. Richards; and Donald K. Joye, Appellees.
    No. 1D17-4150
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Nicholas V. Pulignano, Jr. and Meagan L. Logan, of Marks Gray, P.A., Jacksonville, for Appellant.
    Adam L. Morrison of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellee Gary Sorensen.
    No appearances for Appellees Barry D. Joye, Donald K. Joye, Luronda S. Joye, Greater Southeastern Land Development, LLC, Bruce Naylor, Southeastern Paving & Construction, LLC, or Tony D. Richards.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of October 20, 2017, the Court has determined that the order on appeal is not a final order or appealable non-final order. We, therefore, dismiss the appeal.

Appellant seeks review of an order granting a motion to dismiss its amended counterclaim. We dismiss the appeal for two reasons. First, the order grants a motion to dismiss without actually dismissing. An order that merely grants a motion to dismiss or a motion for summary judgment, but that does not enter judgment on the motion, or otherwise qualify as a judgment, is not a final appealable order. See Dedge v. Crosby , 914 So.2d 1055 (Fla. 1st DCA 2005).

Second, the order is not presently appealable because counterclaims and cross-claims, related to the claims addressed in the order on appeal, remain pending. Jensen v. Whetstine , 985 So.2d 1218, 1220-1221 (Fla. 1st DCA 2008) (dismissing appeal from order that did not dispose of remaining claims involving related facts); Northcutt v. Pathway Fin. , 555 So.2d 368 (Fla. 3d DCA 1989) (holding interrelatedness depends on "whether there is a factual and legal overlap between the claims").

The dismissal is without prejudice to seeking review upon rendition of a final order that disposes of all claims, including the pending, related counterclaims and cross-claims.

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


author: KELLY, Judge.

text:
    Jeremy Clayton GREENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4671
    District Court of Appeal of Florida, Second District.
    Opinion filed May 2, 2018
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Jeremy Clayton Greene appeals from his convictions and sentences for attempting to commit a lewd or lascivious act in the presence of a child under the age of sixteen, driving without a valid license, and possession of an open container. We affirm his convictions and sentences without comment. However, we reverse and remand because the circuit court erred in imposing certain costs. Greene preserved this issue by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion was deemed denied when the circuit court did not rule on the motion within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B) ; White v. State, 32 So.3d 132, 132 (Fla. 2d DCA 2010).

"The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order." Sanders v. State, 189 So.3d 946, 946 (Fla. 2d DCA 2016) (quoting Kirby v. State, 695 So.2d 889, 890 (Fla. 2d DCA 1997) ); see also Singletary v. State, 198 So.3d 973, 974 (Fla. 2d DCA 2016). Here, the written cost order reflects various costs with no citation to statutory authority. These costs are therefore stricken. On remand, the circuit court may again impose these costs if it provides appropriate statutory authority for their assessment. See Sanders, 189 So.3d at 946 ; Vick v. State, 37 So.3d 951, 952 (Fla. 2d DCA 2010).

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

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Alexandra P. LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4125
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jerod M. Rigoni, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Alexandra P. Livingston appeals a commitment order finding that involuntary placement was necessary because, in part, she was incapable of surviving alone due to her mental state. See 394.467(1)(a)2.a., Fla. Stat. (2018). She claims that the evidence was inadequate to establish this element. We agree and therefore reverse and order the trial court "to elicit further testimony to establish the statutory criteria, or otherwise order Appellant discharged." Blue v. State , 764 So.2d 697, 699 (Fla. 1st DCA 2000).

REVERSED and REMANDED.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    John D. PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1249
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Robert D. Sale, Panama City, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying postconviction relief rendered February 13, 2018. The notice of appeal failed to timely invoke the Court's jurisdiction. Fla. R. App. P. 9.110(b) ; Fla. R. App. P. 9.141(b)(1). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Robert WILLOUGHBY, Appellant/Cross-Appellee, v. MADISON CORRECTIONAL INSTITUTE/DIVISION OF RISK MANAGEMENT, Appellees/Cross-Appellants.
    No. 1D17-2602
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., for Appellant/Cross-Appellee.
    Hinda Klein of Conroy Simberg, Hollywood, for Appellees/Cross-Appellants.
   Per Curiam.

In this workers' compensation case, Claimant appeals, and the Employer/Carrier (E/C) cross-appeals, an order of the Judge of Compensation Claims (JCC) declining, in part, to approve a stipulated E/C-paid attorney's fee, approving a reduced fee amount, and ordering that the balance of the monies be remitted to Claimant personally. The JCC's ruling was based on his findings of fact regarding the reasonableness of the attorney's fee. The record before us does not support those findings. Therefore, just as in the recently published Gomez v. Frank Crum, Inc. , 228 So.3d 735 (Fla. 1st DCA 2017), and Banegas v. ACR Environmental, Inc. , 228 So.3d 734 (Fla. 1st DCA 2017), we find reversible error.

Accordingly, we REVERSE the portion of the order reducing the agreed upon attorney's fee, as well as the portion of the order reforming the stipulation, and REMAND for proceedings consistent with this opinion.

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Willie J. PREYER, Mildred Preyer, Appellants, v. EMERALD COAST UTILITIES AUTHORITY, Carolyn Johnson, and Callie Anderson, Appellees.
    No. 1D17-1949
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Robert Allen, Pensacola, for Appellants.
    J. Alistair McKenzie of the McKenzie Law Firm, P.A., Pensacola, for Appellees Carolyn Johnson and Callie Anderson.
    No appearance for Emerald Coast Utilities Authority.
   Per Curiam.

Appellants seek review of an order dismissing their cross-claim with prejudice. The underlying action to apportion funds pursuant to section 73.101, Florida Statutes, remains pending. The Court has therefore determined that the appeal is premature. See S.L.T. Warehouse Co. v. Webb , 304 So.2d 97, 99 (Fla. 1974) (if an order does not finally end the judicial labor required, "piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.") Accordingly, Appellees' motion to dismiss is granted and the appeal is dismissed as premature.

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


author: PER CURIAM:

text:
    Blake and Courtney FREEMAN, individually and on behalf of their minor children v. FON'S PEST MANAGEMENT, INC. and ABC Insurance Company
    No. 2018-OC-0035
    Supreme Court of Louisiana.
    April 16, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Granted. In light of our action in Freeman v. Fon's Pest Management, Inc. , 17-1846 (La. 2/9/18), 235 So.3d 1087, the judgment of the court of appeal dismissing relator's appeal as moot is vacated and set aside. The case is remanded to the court of appeal for consideration of the appeal on the merits.


text:
    STATE of Louisiana v. Daryl TRAHAN
    No. 2016-KP-2083
    Supreme Court of Louisiana.
    April 16, 2018
    ON WRIT OF CERTIORARI TO COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    Writ denied.
    WEIMER, J., would grant and docket.
    CLARK, J., would grant and assigns reasons.
    CRICHTON, J., additionally concurs and assigns reasons.
    CLARK, J., would grant and assigns reasons.
    While there is no dispute that the trial court did not advise the defendant of his Boykin rights during the plea colloquy, I find his guilty pleas were knowingly and voluntarily entered into. The defendant was advised by his attorney of the rights he was waiving, and he expressly maintained throughout the proceedings that he desired to plead guilty and avoid trial. The trial court's failure to advise the defendant of his rights does not alone discharge the defendant's burden in post-conviction proceedings of showing, as a basis for vacating his convictions, a constitutional defect in his guilty pleas. See La. C.Cr.P. art. 930.2, see also State v. Harris , 97-1352, pp. 1-2 (La. 10/31/97), 702 So.2d 678, 678-79. Accordingly, I would reverse the court of appeal and reinstate the defendant's convictions and sentences.
    CRICHTON, J., additionally concurs and assigns reasons.
    In 2007, Relator entered pleas of guilty to attempted second-degree murder and two counts of false imprisonment with a dangerous weapon. The trial court failed to inform or question Relator concerning his understanding that his pleas involved the waiver of his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront and cross-examine his accusers. See Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and La. C.Cr.P. art. 556.1. The trial court ordered a PSI, and defendant was later sentenced to 35 years at hard labor "without benefits" consecutively with two concurrent terms of 5 years at hard labor.
    In an evidentiary hearing on collateral review, the trial judge acknowledged the lack of a Boykin colloquy, but denied the application, concluding it to be meritless in light of testimony of the attorney representing Relator during the guilty plea that, although she could not specifically recall what transpired in this case, she "routinely advised" her clients of their constitutional rights prior to a guilty plea. The court of appeal correctly granted Relator's writ application, vacated the convictions and sentences, and remanded for further proceedings. While it is laudable that defense counsel routinely, and perhaps even fastidiously, advises her clients of applicable constitutional rights, it was not her duty to conduct a Boykin examination. Rather, it was the duty of the trial judge.
   I therefore write separately to spotlight the importance of compliance with Boykin and C.Cr.P. art. 556.1, as well as the overarching obligation of the district attorney and defense counsel, as officers of the court, to perfect the record for purposes of direct appeal and the post-conviction process. In my view, this shocking and fundamental deficiency warrants the serious consequences of vacating a felony conviction and sentence-even a decade later-in this case.


text:
    STATE EX REL. Charles JENKINS v. STATE of Louisiana
    No. 2018-KH-0249
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-383705
    NO. 2018-BA-0410
    Supreme Court of Louisiana.
    April 16, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the monitoring agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on February 20, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    Derrick SCOTT v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    No. 2018-I-0300
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § (b).


text:
    STATE EX REL. Dereck Darnell TAYLOR v. STATE of Louisiana
    No. 2018-KH-0268
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Leon MITCHELL v. STATE of Louisiana
    No. 2018-KH-0192
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).

CRICHTON, J., recused.


text:
    STATE EX REL. Dereck Darnell TAYLOR, Jr. v. STATE of Louisiana
    No. 2018-KH-0178
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Tony J. TABOR v. STATE of Louisiana
    No. 2018-KH-0161
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TEREBONNE
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Dustin GORE
    No. 2017-KP-0211
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the district court's written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment


text:
    STATE of Louisiana v. Marcus V. COLEMAN
    No. 2017-KP-0093
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Writ granted. Respondent fails to show that his counsel's performance prejudiced him to the extent that the trial was rendered unfair and the verdict suspect. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, the judgment of the court of appeal vacating the district court's denial of respondent's application for post-conviction relief is reversed. The district court's April 13, 2016, ruling is reinstated.

Respondent has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Respondent's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, respondent has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Andrew D. CRITTON v. STATE of Louisiana
    No. 2018-KH-0339
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. David WILSON v. STATE of Louisiana
    No. 2018-KH-0319
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Zachary MOSLEY v. STATE of Louisiana
    No. 2018-KH-0292
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Jamal CLAUDE
    No. 2018-KH-0218
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, FOR THE PARISH OF ORLEANS
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art.930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the District Court, and the District Court's ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Richard N. MILLER v. STATE of Louisiana
    No. 2018-KH-0205
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. David KERSEY v. STATE of Louisiana
    No. 2018-KH-0200
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.