author: Small, Lisa, Associate Judge.

text:
    Alvin DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3255
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, .Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Small, Lisa, Associate Judge.

The defendant appeals his conviction and sentence for robbery. He raises four grounds to reverse his conviction and remand for a new trial: (1) the trial court committed reversible error in admitting the lead detective’s testimony that he spoke to the victim’s homeless shelter case manager who verified that the victim was employed and regularly drug tested; (2) the trial court committed fundamental error in giving the standard jury instruction 3,10, which implied the possibility of a light sentence; (3) the trial court committed reversible error in sentencing the defendant Within the lawful sentencing range but failing to articulate its reasons for imposing the sentence; and (4) the Prison Release Reoffender statutory scheme is unconstitutional. Finding merit on the first issue, we address the first issue only and do not address the remaining issues.

' We find that the trial court erred in admitting the victim’s case manager’s statements through the lead detective’s testimony because the statements were inadmissible hearsay not subject to any hearsay exception. On-appeal, the State conceded that it was error to admit the inadmissible he'arsay but contended that the error was harmless. We find to the contrary. Because the State’s case was entirely dependent upon the victim’s credibility, and these hearsay statements corroborated and bolstered the victim’s testimony, the State cannot establish that the error was harmless beyond a reasonable doubt. Therefore, we reverse the conviction and remand for a new trial.

Facts and Procedural History

The State charged Dunbar and his co-defendant with one count of robbery.

At trial, the victim testified that he had been living at the Salvation Army homeless shelter for four to five months and that he had two jobs to pay his rent. On the night in question, the victim’s friend drove the victim from work to the homeless shelter at approximately 11:00 p.m. and dropped him off behind the building. The victim entered the homeless shelter to get gas money to pay his friend for the ride. After the victim paid his friend, the victim counted his remaining funds. At that point, two men approached the victim. One of the men, the co-defendant, told the victim that he was “holding,” which the victim understood to mean that the co-defendant had drugs for sale.

According to the victim, he was not interested in purchasing drugs and responded: “Okay.” However, the defendants kept repeating, “I got that” and “I’m holding.” Next, a verbal altercation between the victim and the defendants ensued. The defendants told the victim to “give [them his] loot.” After the victim refused, the co-defendant hit the victim’s face. The victim defended himself against the co-defendant’s attack and a physical confrontation erupted with the defendant ultimately joining in the fight. Ultimately, the defendant and the co-defendant found and took the victim’s fifty-dollar bill, a one-dollar bill, loose change, a money order and four bus passes, but they did not take his cell phone. After the defendants took the victim’s money, they stood nearby while the victim called 911. The victim informed the defendants that he was calling the police. The defendants began to walk away.

When the police arrived, the defendant and the co-defendant ran. The victim, still on the phone with 911, yelled “that’s him” as the officer approached. The officer saw two men running in different directions. The officer spoke to the victim who was very animated and upset. The police officers on scene did not believe that the victim was intoxicated or high on crack cocaine.

Finally, the officers were able to capture the defendant and the co-defendant. The officers recovered the fifty-dollar bill, the one-dollar bill and the bus passes from the co-defendant, and returned these items to the victim. After interviewing the defendant and the co-defendant, the lead detective believed that both men were high on crack cocaine. In addition to their' intoxicated appearance, both men admitted smoking crack cocaine that evening. As the interview proceeded, the defendant changed his version of the events. However, the defendant maintained his claim that he and the co-defendant had been smoking crack cocaine with the victim. The defendant claimed that the group had been on their way to the homeless shelter so that the victim could get more money to buy more crack cocaine. The defendant’s statement to the officers was played during the trial. ‘

The victim denied asking the defendants for drugs. The victim explained that, as a homeless shelter resident, he was not' permitted to use drugs or alcohol. To ensure compliance with the policy, the homeless shelter drug tested residents about once a week. The victim stated he was drug tested more often than other residents due to his late night work schedule and explained that any resident who failed a drug test would not be allowed to continue residing at the shelter.

During the lead detective’s direct examination by the State, the following occurred:

[PROSECUTOR:] Okay. And considering that [the victim] was living at the Salvation Army, were you able to verify his employment?
[LEAD DETECTIVE:] Yes. I was actually able to verify—
[DEFENSE ATTORNEY:] Objection.
[TRIAL COURT:] That’s sustained.
[PROSECUTOR:] Were you able to verify that he actually lived at the Salvation Army?
[LEAD DETECTIVE:] Yes.
[PROSECUTOR:] And were you able to verify if he ever, gets tested?
[LEAD DETECTIVE:] I spoke with his case worker in the work program—
[DEFENSE ATTORNEY:] Objection. Hearsay.
[TRIAL COURT:] Overruled.
[PROSECUTOR:] You could answer.
[LEAD DETECTIVE:] And she stated that, yes. All of the persons who were involved in a work program, the Salvation Army regularly drug tested.
[PROSECUTOR:] What’s the purpose of you verifying his employment and talking to his caseworker?
[LEAD DETECTIVE:] Just to verify the whole story. I knew exactly what the defense would be in this case. It would be based on the statements that were given by [the cordefendant] and [the defendant]. And, you know, [the victim], he seemed like a fine guy to me. But he’s a homeless guy. And I wanted to debunk anything that’s going to be presented here at trial now....

Later, the State referenced this inadmissible hearsay testimony in closing argument in response to the defendant’s argument that the police “slanted” the case and the lead detective was a “bought referee.” The prosecutor argued in rebuttal:

“Slanted from the beginning,” [the lead detective] had it out for [the defendant] and he was trying to break him. He’s a referee that has been bought. Well, I asked him, “[lead detective], knowing that the victim lives at the [homeless shelter], does that provide any hesitation for you? Does it make the case a little bit more difficult?” And you know, it does.
Because I think a lot of people, when they hear [homeless shelter], “It must be a bad area, he’s homeless. You know what, he probably was smoking crack.”
Well, I asked [the lead detective] about that and he said, yes. You know, I took a statement from [the co-defendant]. I took a statement from [the defendant]. You know, they didn’t exactly jive. And I called back [the victim] and confronted him with this information. [The victim] says, “Listen, I live at the [homeless shelter]. My curfew, in fact, is a little bit later because of the funeral situation, funeral home. And, therefore, I get tested even more often.” [Lead detective], “Did you verify with [the homeless shelter] that he gets tested and he lives there? Yes. I did. Why? Because ... of the nature of the situation.” [Lead detective], did you verify that [the victim] works at Jimmy Johns? Yes. I did, because of the nature of the situation.” He’s not a bought referee. He’s doing his job.

On appeal, Dunbar argues that the trial court committed reversible error when it permitted the State to solicit testimony from the lead detective that he had spoken to the victim’s case manager and her statements corroborated certain aspects of the victim’s story. The State admits that this testimony was admitted in error but argues that the error was harmless beyond a reasonable doubt.

Analysis

“The standard of review for the admissibility of evidence is abuse of discretion, limited by the rules of evidence. Whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations, quotation marks, and alteration omitted).

In this case, the lead detective testified that, in order to verify the victim’s story, he spoke to the victim’s homeless shelter case manager. The victim’s case manager did not testify at trial. Instead, the State sought to introduce her statements through the lead detective. Over the defendant’s objections, the lead detective testified that the victim’s case manager confirmed that the victim resided at the homeless shelter. More importantly, the jury learned, through the lead detective, that the case manager also said that all shelter residents who participate in the work program were regularly drug tested. The State introduced the victim’s case manager’s out-of-court statements for two purposes: 1) to show that the lead detective conducted an unbiased and thorough investigation to either corroborate or debunk the victim’s story, and 2) to prove that the victim’s testimony, that he was a homeless shelter resident who was frequently drug tested, was credible.

As the victim’s case manager’s out-of-court statements were admitted to prove the truth of the matter asserted, these statements constituted classic hearsay. No hearsay rule exception applies to render these statements admissible. Therefore, the State correctly concedes that these statements were inadmissible hearsay.

The harmless error test applies to improperly admitted hearsay evidence. See Kendrick v. State, 632 So.2d 279, 279 (Fla. 4th DCA 1994). “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove be-' yond ‘ a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

Witness credibility was critical in this case because no physical evidence or independent eye witness testimony corroborated the victim’s version of the events. The defendant’s theory at trial was that he and the co-defendant sold crack cocaine to the victim and then the three smoked the victim’s crack cocaine together. His theory explained why the co-defendant was in possession of the victim’s money and also why he and his co-defendant ran from the police. His theory was corroborated by the officer’s testimony that both the co-defendant and the defendant appeared to be high on crack cocaine. ...

The State sought to rebut the defendant’s theory through the victim’s testimony that the victim received' frequent drug testing at the homeless shelter. The victim was adamant that he would not jeopardize his place at'the-homeless-shelter by smoking crack cocaine. The victim’s case manager’s statements to the lead detective provided independent corroboration to this aspect of the victim’s testimony. Later, the error was further compounded when the State referenced the testimony in rebuttal closing.

Under- these circumstances, the State cannot meet its burden to establish that this error was harmless. Therefore, we must reverse the conviction and remand for a new trial. See Lewis v. State, 80 So.3d. 442, 444-45 (Fla. 4th DCA 2012) (finding harmful error where police officer testified that two non-testifying witnesses, gave him information which caused him to develop the .defendant as, a suspect in a case that rested on witness credibility); Carter v. State, 951 So.2d 939, 944-45 (Fla. 4th DCA 2007) (finding harmful error where the State introduced police reports containing the. victim’s inadmissible hearsay statements where witness credibility was crucial and prosecutor referred to the reports in closing argument); Szuba v. State, 749 So.2d 551, 552-53 (Fla. 2d DCA 2000) (reversing for a new trial where witness credibility was critical to the case, and police officer testified that witnesses to the crime, “gave him consistent descriptions of the defendant”).

Reversed and remanded for new trial.

Levine ánd Conner, JJ., concur.


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    Paul EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3253
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, Miami, for appellant.
    . Pamela Jo Bondi, Attorney General,. Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Paul Edwards (“appellant”) appeals'his conviction for first degree murder. He argues that the trial court erred by denying his motion for judgment of acquittal because the evidence against him was insufficient. For the reasons set forth below, we affirm appellant’s conviction.

“The standard of review for the denial of a motion,for judgment of acquittal is de novo.” Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010). “If, after viewing the evidence in the. light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla. 2002).

Because there.were no witnesses to the murder and no confession, this case involves circumstantial evidence which invokes a special standard of review:

“When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State, 853 So.2d 1124, 1125 (Fla. 5th DCA 2003). In such circumstances, “the proper task of the trial judge is to review the evidence, taking it in the light most favorable to the state, in order to determine whether there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Martin v. State, 728 So.2d 775, 776 (Fla. 4th DCA 1999) (citing State v. Law, 559 So.2d 187, 189 (Fla. 1989)). “The State is not ... required to rebut every possible scenario which could be inferred from the evidence. Rather it must introduce competent evidence which is inconsistent with the defendant’s' theories.” Schwarz v. State, 695 So.2d 452, 454 (Fla. 4th DCA 1997) (citing Law, 559 So.2d at 189).

Babbs v. State, 187 So.3d 925, 927 (Fla. 4th DCA 2016).

After being ■ missing for several weeks, the victim’s decomposing, decapitated body was found inside a barrel near a canal. The State introduced evidence at trial that appellant was the last person to be with the victim before she went missing. A neighbor testified that she saw a barrel next to appellant’s SUV before the victim went missing. Another witness also testified that he saw a barrel inside appellant’s apartment before the victim went missing.

After the victim went missing, her brother testified that he received odd text messages from his sister using phrases that she typically did not use. She also failed to answer a question that he asked her that only she would have known. The brother and appellant then spoke on the phone, during which appellant started crying and stated, “it wasn’t supposed to be like this.”

When the police arrived at appellant’s home to investigate the victim’s disappearance, appellant acted nervous and was sweating. He also had cuts on his hand and forearm, suggesting that he was recently in an altercation.

Appellant’s statements to the victim’s family and police were conflicting. Appellant told the victim’s daughter that her mother packed up and went to Jacksonville. When he talked to police, however, he said that the victim came to his apartment to pack up her belongings and then just left, without telling him where she was going. Another time, he told police that she left with another man. See Carranza v. State, 985 So.2d 1199, 1203 (Fla. 4th DCA 2008) (“Most importantly, [the defendant] made several inconsistent statements to the detectives. That in and of itself can constitute grounds upon which a trier of fact may reject the defendant’s reasonable hypothesis of innocence.”).

Furthermore, a detective testified that after the victim went missing, appellant and victim’s cell phones pinged off the same cellphone tower, meaning that they were both within the same general area at or about the time she was murdered. The State also established that appellant was familiar with the area where the body was found. Finally, the State refuted appellant’s theory that the victim’s new boyfriend committed the murder when the detective testified that he investigated the boyfriend and confirmed his statements to police during the investigation were accurate. See Babbs, 187 So.3d at 928-29 (affirming conviction where the State refuted defendant’s theory of innocence and circumstantial evidence was sufficient to prove guilt).

Based on the evidence presented at trial, there was sufficient evidence from which a jury could infer guilt to the exclusion of all other reasonable inferences. We find that the court’properly denied appellant’s motion for judgment of acquittal, and affirm appellant’s conviction. As to appellant’s other issues raised on appeal, we find those arguments to be meritless, and affirm on those issues as well.

Affirmed.

Gross and Ciklin, JJ., concur.


author: Gross, J. Ciklin, J.,

text:
    Debbie O’FLAHERTY-LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4594
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant,
    ■ Pamela Jo Bondi, Attorney General, Tallahassee,-and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

This is the story of a man who looked for love in the wrong place and ended up as the victim of an extortion plot.

- The victim is a doctor..He came to know appellant through a website, ashleymadi-son.com, which specializes in connecting married people who seek an extramarital affair. After exchanging sexually explicit messages, the doctor and appellant met at a hotel for sex. Afterwards, appellant contacted the doctor-about a second date, but he told her he could not see her for-a while and expressed guilt about his infidelity.

Appellant became angry. The doctbr worried that his wife would find out. In A series of text messages, appellant provided the doctor with his last name, home , address, the names and birth dates of his daughters, and the name of his wife.

The doctor had not provided such personal information to appellant.

Multiple times, appellant threatened to tell the doctor’s wife about the affair. He begged her not to and asked, “What can I do to make this right?” Ultimately, appellant suggested that he pay off her $7,000 credit card bill, stating, “You’re gonna pay one way or the other.” She refused to give him the actual bill, and said he should pay her directly.

The doctor offered to pay appellant $4,000 up front, with the rest later. Appellant agreed. She texted the doctor an account number to use to deposit money at a bank. He went to the bank with a $4,000 check, but was unable to make the deposit because the bank required the full name of the account holder. By text,' the doctor asked appellant for. the full name on the account. She refused to provide it, stating she did not trust him.

Hours after the bank closed, appellant texted the doctor a different account number and the name, “Amber Lewis,” for making a deposit.

The next morning, the doctor contacted his lawyer who arranged to meet him at the Broward County Sheriffs Office (“BSO”). He provided law enforcement his text messages with appellant and identified her picture. Appellant turned out to be a civilian employee of BSO. Under law enforcement supervision, the doctor made several telephone- calls to appellant and arranged to meet her in person.

BSO provided the doctor with an envelope of investigative funds and set up surveillance equipment to record thé meeting. After the doctor arrived at the meeting place, he walked over to appellant with the envelope and said, “We’re agreeing? This is it. You’ll leave me and my family alone?” Appellant responded, ‘Yeah,” and accepted the money. BSO then arrested appellant.

After the arrest, BSO secured appellant’s laptop, car, and BSO-issued phone. BSO executed a search warrant on the vehicle; on the front passenger seat was a folder containing (1) a letter addressed to another man, A.D., written from the point of view of a scorned husband and (2) sexually explicit messages between appellant and A.D. The letter accused A.D. of having an affair with appellant after meeting her online. The letter threatened to disclose the affair to A.D.’s wife, his friends, his family and his law firm if he did not pay $15,000. During a follow-up interview, A.D. confirmed to detectives that he had an affair with appellant, but he did not receive the letter and was unaware of any threats.

A forensic analysis of appellant’s phone, laptop, and desktop computer revealed that these devices were used to conduct internet searches of both the doctor and A.D, A portion of a document recovered from appellant’s car was found on a Word document recovered from appellant’s computer.

The state moved to admit Williams rule or similar fact evidence—the letter found in appellant's car. and the sexually explicit messages between appellant and A.D. After a hearing, the circuit court granted the state’s motion. The evidence was introduced at trial.

At trial, the defense sought to downplay appellant’s acceptance of money .from the doctor by providing an.innocent explanation. On closing, the defense attorney argued that the only thing, appellant .did intentionally was to. take “money that-was offered to her, ■ not because she, threaten[ed] anybody, but because [the , doctor] in his anxiety, in his feelings that he had perhaps done something hurtful, offered it to her.” It is not extortion for a donee to accept a voluntary gift. In rebuttal, the state pointed to the similarities between the doctor’s situation and that of A.D. to show' appellant’s intent to extort money.

The jury found appellant guilty of extortion as charged. On appeal, appellant argues that the circuit court abused its discretion in admitting the Williams rule evidence.

“Similar-fact evidence, otherwise known as Williams rule evidence, is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, ihtent, preparation,* plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” Johnson v. State, 112 So.3d 564, 565-66 (Fla. 4th DCA 2013) (internal citation omitted); see also § 90.404(2)(a), Fla. Stat. (2015). “In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether-the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.” Ricketts v. State, 125 So.3d 194, 195 (Fla. 4th DCA 2013) (quoting Santiago v. State, 70 So.3d 720, 725 (Fla. 4th DCA 2011)).

The Williams rule evidence in this 'case was relevant to prove the state of mind aspect of extortion. The crime of extortion requires that a defendant “maliciously” threaten another “with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will.” § 836.05, Fla. Stat. (2015). “Maliciously” means intentionally and without any lawful justification. Dudley v State, 634 So.2d 1093, 1094 (Fla. 2d DCA 1994). “[D]irect evidence of intent is rare, and intent is usually proven through inference.” Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA 2005). Demonstrating the same type of scheme as existed in this case, the evidence pertaining to A.D. was probative of appellant’s state of mind in accepting the money.

Proper use of Williams rule evidence is “to refute [a defendant’s] theory .of defense that he was merely an innocent bystander” to criminal conduct, Tannihill v. State, 912 So.2d 2, 3 (Fla. 4th DCA 2005), to “disprove a defendant’s attempt to explain [her own] intent,” Miller v. State, 667 So.2d 325, 328 (Fla. 1st DCA 1995), or to show that a defendant “engaged in a plan” to separate victims from their money by a common scheme. Stav v. State, 860 So.2d 478, 481 (Fla. 4th DCA 2003). The seminal case of Williams v. State approved the admission of other crimes to establish that, in committing the charged crime, the defendant followed a “plan or pattern” that he had used on other occasions; in a sexual battery case, such evidence “was relevant to meet the anticipated defense of consent.” Williams, 110 So.2d at 663.

The Williams rule evidence here was probative of appellant’s intent because it revealed a scheme where appellant (1) targeted married professional men with financial means, (2) liaised with them through a website specializing in extramarital affairs, (3) acquired personal information about the men over the internet, and (4) threatened them with exposure to secure a monetary payoff. The Williams rule evidence did not overwhelm the evidence of the charged extortion such that it transformed into an impermissible character attack on appellant. The trial court did not abuse its discretion in admitting the evidence.

Affirmed.

Klingensmith, J., concurs.

Ciklin, J., concurs specially with opinion.

Ciklin, J.,

concurring specially.

I fully agree with the majority’s conclusion.

While it is not my intent to be obstreperous, I must take exception with the suggestion that either this victim was seeking or this extortionist was offering “love.”

Call it ardor, lechery or lust but love, I dare speculate, was not on anyone’s mind.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).


author: Per Curiam.

text:
    Lawton COHEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1342
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Lawton Cohen appeals his second-degree felony fleeing and misdemeanor reckless driving convictions. We address his insufficiency of the evidence and ineffective assistance of counsel arguments, and affirm for the reasons explained herein.

Background

Appellant rammed his vehicle through a security gate and entered Port Everglades. A fifteen-minute police chase ensued, during which Appellant ran a red light, drove over sidewalks, crossed over medians, jumped over curbs, and zigzagged across roads. At one point, Appellant crossed four lanes of traffic, nearly hitting two civilian vehicles. Appellant was eventually forced off the road by police, after which he backed into a police cruiser, injuring an officer.

Appellant was initially charged with third degree felony fleeing. The State elevated the charge to second degree before trial. Appellant’s attorney overlooked the amendment, only realizing the oversight when conferencing on the final jury instructions with the trial court and State. He argued that he did not defend on the added element of wanton disregard while fleeing. See § 316.1935(2)(a), Fla. Stat. (2016). When the State pointed out that the reckless driving charge had the same wanton disregard language, see § 316.192(l)(a), Fla. Stat. (2016), defense counsel stated he did not care about that charge and that he practically conceded wanton disregard. In an attempt to remedy the failure, the trial court instructed the jury on both second and third degree felony fleeing. The jury found Appellant guilty of second degree felony fleeing.

Analysis

Wanton disregard is a “conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” Damoah v. State, 189 So.3d 316, 320 (Fla. 4th DCA 2016) (quoting Lewek v. State, 702 So.2d 527, 530-31 (Fla. 4th DCA 1997)). The evidence presented at trial, including a video of much of the chase, amounted to competent, substantial evidence to support the jury’s finding of wanton disregard for second degree fleeing and reckless driving.

Generally, ineffective assistance claims may not be raised on direct appeal. Monroe v. State, 191 So.3d 395, 403 (Fla. 2016). A rare exception exists when the ineffectiveness is obvious on the face of the record, the prejudice is indisputable, and tactical explanation is inconceivable. Lesovsky v. State, 198 So.3d 988, 990 (Fla. 4th DCA 2016). Prejudice is disputable on both charges in the .instant case because there was competent, substantial evidence of wanton disregard. Appellant’s ineffective assistance claim does not meet the narrow exception, and we affirm on this issue, as well as on all other issues raised in the appeal.

Conclusion

The trial court’s final judgment is affirmed in all respects, without prejudice to Appellant bringing an action for postcon-viction relief.

Affirmed.

Damoorgian, Conner and Forst, JJ., concur.

      . We take no position on the merits of such a claim should one be made.


author: Warner, J.

text:
    Antonio JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2721
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Thomas J. Butler of Thomas Butler, P.A., Miami Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant moved to withdraw his plea after sentencing. The trial court ordered an evidentiary hearing on the issue of whether his counsel misadvised him regarding the strength of his case. Nevertheless, the court refused to appoint counsel to represent him at the evidentiary hearing. On appeal .from the denial of the motion to withdraw his plea, appellant argues that the failure to appoint, counsel constituted fundamental error. Because the motion to withdraw a plea is a critical stage of the criminal proceedings, appellant was entitled to counsel. We therefore reverse and remand for a new hearing on the motion to withdraw.

Appellant pled -guilty to burglary while armed with a firearm, robbery with a firearm, and felon in possession of firearm or ammunition. For burglary with a firearm and robbery with a firearm, the court sentenced him to fifteen-year concurrent sentences as a Prison Release Reoffender, and, for the charge of felon in possession of a firearm, to a three-year concurrent sentence, the mandatory minimum.

Within thirty days of the sentence, appellant filed a motion to withdraw -his plea and an amended motion. In the motion, he alleged that his counsel had coerced him and his family to accept the plea,-telling them that he would receive a life sentence if he did not accept. He also alleged that counsel had not informed him of favorable evidence—the DNA found on the gun retrieved at the scene of the burglary did not contain his DNA. The court denied an evidentiary hearing on the issue of whether Jones’s attorney coerced him into accepting the plea, finding that the plea colloquy, where appellant testified that no one had coerced him to accept the plea, conclusively refuted appellant’s new allegations. It granted an evidentiary hearing, however, on the second issue, namely whether his counsel misadvised him by failing to inform him of an available defense, as well as failing to tell him about the report that showed the DNA results from the gun involved in the incident were inconclusive.

Appellant requested that counsel be appointed to represent him, but both the prosecutor and the court thought that appointment of counsel was discretionary. The court denied appointment, believing that the issues were not complex. The court conducted the evidentiary hearing, and based upon the testimony, denied the motion to withdraw. Appellant now appeals this .decision, claiming that the court denied him his right to counsel.

It is well established that a motion to withdraw a plea pursuant to Florida Rule of Criminal Procedure 3.170(Z) is a critical stage of the criminal proceedings, entitling the defendant to his Sixth Amendment right to counsel. See Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999); see also Bienaime v. State, 971 So.2d 278 (Fla. 4th DCA 2008); Schriber v. State, 959 So.2d 1254, 1256 (Fla. 4th DCA 2007); Kelly v. State, 925 So.2d 383, 386 (Fla. 4th DCA 2006); Roblero v. State, 843 So.2d 984 (Fla. 4th DCA 2003). Other courts are in agreement that a defendant is entitled to counsel for a motion to withdraw a plea pursuant to Rule 3.170(l). See Mosley v. State, 932 So.2d 1239 (Fla. 1st DCA 2006); Banks v. State, 927 So.2d 169 (Fla. 1st DCA 2006); Norman v. State, 897 So.2d 553 (Fla. 1st DCA 2005); Smith v. State, 849 So.2d 485, 486-87 (Fla. 2d DCA 2003); Meeks v. State, 841 So.2d 648 (Fla. 2d DCA 2003); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002).

In Sheppard v. State, 17 So.3d 275, 287 (Fla. 2009), the court set forth the procedure to 'follow when a pro se defendant moves to withdraw his plea under the rule and alleges a'ground that would create an adversarial relationship with current counsel, “such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.”

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not " conclusively refuted by the record, the court 'should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant, (footnote omitted)

Id. In this case, the trial court failed to conduct such a hearing, although the adversarial relationship appears obvious in that appellant claimed misadvice of counsel and counsel denied any misrepresentation or misadvice. Further, as the court concluded that an evidentiary hearing was necessary on one of the claims, the court established that the allegations in the motion were not conclusively refuted by the record. Defendant requested counsel to represent him, and the court, believing that this was a 'postconviction proceeding where the appointment of counsel was discretionary, erroneously denied counsel to appellant.

We reverse, because appellant was denied his Sixth Amendment right to counsel in these proceedings. See Padgett, 743 So.2d at 72. We remand for a new hearing on the motion to withdraw the plea and for the court to appoint conflict-free counsel for appellant.

Gross and Taylor, JJ., concur.


author: Ciklin, J.

text:
    STATE of Florida, Appellant, v. Franklin JONES, Appellee.
    No. 4D16-3390
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      See also 158 F.3d 1215.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellee.
   Ciklin, J.

After an inmate at a correctional facility was disciplined for violating the inmate code of conduct by attacking a corrections officer, the state charged him with battery on a law enforcement officer. The inmate moved to dismiss the information, arguing that the criminal charge was precluded by double jeopardy principles. The trial court granted the motion and the state appeals. Because we find that the Double Jeopardy Clause was never meant to impinge on remedial institutional discipline, we reverse the trial court’s order of dismissal.

In his motion to dismiss, the .appellant, Franklin Jones, argued that the prosecution was barred because the Broward Sheriffs Office imposed what amounted to a criminal sanction for his bad behavior. During the hearing, he introduced into evidence the Broward Sheriffs Office Department of Detention and Community Control Inmate Handbook (“the handbook”), which contains a code of conduct for inmates. The code of conduct provides that the commission of specified Category A offenses could result in “thirty ... days of disciplinary segregation, up-to thirty .,. days of room restriction, and/or loss of partial or all earned gain time ..,. ” Jones also introduced a “Disciplinary Committee Action Sheet” (“the disciplinary report”), which reflects that Jones was found guilty of assault, fighting, and disruptive conduct, all Category A infractions. The disciplinary report also reflects that Jones received thirty days of “Disciplinary Detention,” but that he did not lose any gain time.

Jones argued that the potential sanctions provided for in the code of conduct amounted to criminal penalties. The trial court granted the motion to dismiss based on a finding that the potential of revocation of gain time had no purpose other than punishment and was thus a criminal penalty and a violation of double jeopardy.

The parties do not dispute the facts underlying this purely 'legal issue. Thus, our review is de novo. Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008). “The federal and Florida constitutions prohibit being twice placed in jeopardy for the same offense.” Hall v. State, 823 So.2d 757, 761 (Fla. 2002), abrogation on other grounds recognized in State v. Johnson, 122 So.3d 856, 862 (Fla. 2013); see also Amend. V, U.S. Const.; Art. I, § 9, Fla. Const. This constitutional protection encompasses ' “multiple punishments for the same offense.” U.S. v. Mayes, 158 F.3d 1215, 1219 (11th Cir. 1998) (citation omitted). “The .scope of the Double Jeopardy Clause is the .same in both the federal constitution and the Florida Constitution.” Hall, 823 So.2d at 761.

The United States Supreme Court has elaborated on the process of determining whether double jeopardy is implicated by the imposition of both judicial and administrative penalties:

We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, “ 'common parlance,’ ” be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 55 U.S. 13, 14 How. 13, 19, 14 L.Ed. 306 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also Hess, supra, at 548-549, 63 S.Ct. at 386-387 (“Only” “criminal punishment” “subject[s] the defendant to ‘jeopardy’ within' the constitutional meaning”); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) (“In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution”), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).
Whether a particular punishment is criminal or -civil is, at least initially,-a matter of statutory construction. Helvering, supra, at 399, 58 S.Ct. at 633. A court must first ask whether the legislature, “in -establishing the penalizing mechanism, indicated either expressly-or impliedly a preference for one label or the other.” Ward, 448 U.S. at 248, 100 S.Ct. at 2641. Even in those cases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id., at 248-249, 100 S.Ct. at 2641, as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty,” Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956).
In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6). “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id., at 169, 83 S.Ct. at 568, and “only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249, 100 S.Ct. at 2641-2642 (internal quotation marks omitted).

Hudson v. United States, 522 U.S. 93, 98-100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (alterations in original).

Prior to the issuance of the Hudson opinion, two of our sister courts held that double jeopardy protections did not apply to a judicial proceeding following an administrative proceeding. See Larkin v. State, 558 So.2d 486, 487 (Fla. 5th DCA 1990); Sadler v. State, 333 So.2d 69, 69 (Fla. 1st DCA 1976). Larkin contained no analysis and merely relied on Sadler. 558 So.2d at 487. Sadler relied on federal circuit court opinions. 333 So.2d at 69.

Only one of our sister courts has written post-Hudson on the issue presented here. See State v. Converse, 78 So.3d 78, 79-81 (Fla. 5th DCA 2012). The court did not, however, reach the merits and apply the Hudson analysis to the facts before it, instead finding that the motion to dismiss was insufficient as the defendant did not submit to the court the statute or regulation under which she was administratively sanctioned. Id. at 81.

Federal and other state appellate courts have applied the Hudson analysis and their opinions provide guidance. We turn first to the thoroughly-reasoned opinion of the Eleventh Circuit in Mayes, 158 F.3d 1215. That case involved appellants who had received prison disciplinary sanctions (transfers to maximum security prisons; disciplinary segregation for sixty days; disallowance of a portion of accrued good conduct time; temporary losses of telephone, commissary, and/or recreational privileges; ‘ and losses of visitation privileges for up to one year) for their involvement in a prison riot, and who were ultimately charged with offenses for the same underlying conduct. Id. at 1217. The appellants moved to “dismiss the indictment on double jeopardy grounds, arguing that the prior prison disciplinary sanctions precluded the subsequent criminal prosecutions for the same conduct.” Id. Their motion was denied. Id. at 1217-18.

On appeal, the Eleventh Circuit recognized that the pre-Hudson general rule among the circuit courts was that “prison disciplinary sanctions do not bar subsequent criminal prosecutions on double jeopardy grounds.” Id. at 1220. The court acknowledged that a United States Supreme Court opinion, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), had caused the circuit courts to consider “whether prison disciplinary sanctions might ever be considered sufficiently excessive to constitute criminal punishment for double jeopardy purposes,” but that the courts addressing the issue distinguished Halper and declined to recognize an exception to the general rule. Mayes, 158 F.3d at 1220. The court then explained that in Hudson, the Supreme Court “disavow[ed]” the Halper analysis and recognized that such an analysis “elevated a single Kennedy factor—whether the sanction appeared excessive in relation to its nonpunitive purposes—to dispositive status.” Id. at 1221 (quoting Hudson, 522 U.S. at 96, 101, 118 S.Ct. 488). The Eleventh Circuit recognized that “[u]nder Hudson, the decisions in Ward and Kennedy exemplify the double jeopardy standards.” Id. at 1222. The court then looked to decisions of its predecessor circuit in the wake of Kennedy.

After receiving the benefit of the Supreme Court’s guidance in Kennedy, our predecessor, circuit rendered opinions in several cases applying double jeopardy principles within the context of prison disciplinary sanctions. See United States v. Bryant, 563 F.2d 1227, 1230 (5th Cir. 1977) (administrative revocation of good conduct time after participation in prison riot did not bar subsequent criminal prosecution for same conduct), cert. denied, 435 U.S. 972, 98 S.Ct. 1616, 56 L.Ed.2d 65 (1978); United States v. Lepiscopo, 429 F.2d 258, 261 (5th Cir.) (administrative forfeiture of accumulated good time credits and placement in solitary confinement after participation in escape attempt did not bar subsequent criminal prosecution for same conduct), cert. denied, 400 U.S. 948, 91 S.Ct. 255, 27 L.Ed.2d 254 (1970); Gilchrist v. United States, 427 F.2d 1132, 1133 (5th Cir. 1970) (affirming denial of petition for writ of habeas corpus, holding that Double Jeopardy Clause “is not violated because a prisoner is subjected to discipline by prison authorities for violating prison regulations and is also prosecuted in the district court in a criminal action based upon the same acts”); United States v. Cordova, 414 F.2d 277, 277 (5th Cir. 1969) (rejecting argument that “the combination of administrative punishment and criminal conviction” violated the Double Jeopardy Clause, and holding that “[administrative discipline of a prisoner does not prohibit criminal prosecution for the same event”).

Mayes, 158 F.3d at 1222 (alteration in original) (footnote omitted).

The Eleventh Circuit then undertook the two-step analysis of Hudson, looking first to the face of the statutory regulations under which the appellants were disciplined. Id. at 1222-23. As the stated purpose of the regulations was to effect a “safe and orderly environment” for prisoners, the court found that the regulations “explicitly articulate only a nonpunitive, remedial purpose,” and that this was “persuasive proof that the government intended for the disciplinary regulations to be civil in nature, not criminal.” Id. at 1223. The court observed that the regulations distinguished prosecution from the prison disciplinary process and that “this language further confirms that the government intended to create civil sanctions through the regulatory scheme at issue.” Id. The court also found that the legislature’s delegation of authority to the Bureau of Prisons, an administrative agency, was “prima facie evidence that Congress intended to provide for a civil sanction.” Id. (quoting Hudson, 522 U.S. at 103, 118 S.Ct. 488).

The court then moved on to Hudson’s second step, “whether ... the sanctions authorized in these regulations are ‘so punitive in form and effect as to render them criminal despite [the government’s] intent to the contrary.’ ” Id. (alteration in original) (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)). The court first explained that under Hudson, it was the potential penalty, not the actual penalty, that was disposi-tive: “[T]he pertinent inquiry is whether the authorized civil sanctions for violations of prison rules are so punitive as to be transformed into criminal punishment. It is at this analytical stage that the seven Kennedy factors come into play.” Id. The court then elaborated on application of these factors to prison discipline:

[P]rison discipline cases do not fit neatly into the matrix of double jeopardy doctrine. This is because in the prison context, virtually any form of sanction seems “criminal” and “punitive” as we commonly understand those terms. With that in mind, we recognize that many of the Kennedy factors may weigh in the appellants’ favor and support their argument that the disciplinary regulations constitute criminal punishment for double jeopardy purposes. For instance, because the appellants are already incarcerated, some of the authorized sanctions will inevitably “involve [] an affirmative disability or restraint” for purposes of the first factor. Kennedy, 372 U.S. at 168, 83 S.Ct. 554. In the same vein, some of these sanctions might also be “historically ... regarded as a punishment,” given the context. 372 U.S. at 168, 83 S.Ct. 554. With respect to the third Kennedy factor— whether the sanction “comes into play only on a finding of scienter”—the regulatory provisions make clear that an inmate’s mental health at the time he is alleged to have engaged in misconduct is relevant to determining whether disciplinary action is appropriate. 372 U.S. at 168, 83 S.Ct. 554. See 28 C.F.R. § 541.10(b)(6). The fourth consideration is whether the sanction “promote[s] the traditional aims of punishment.” 372 U.S. at 168, 83 S.Ct. 554. Indeed, the imposition of discipline in prison seems aimed, at least in part, at deterring inmates from violating institutional rules in the future. Fifth, many of the prohibited acts to which these sanctions apply are “already ... crime[s].” 372 U.S. at 168, 83 S.Ct. 554. The last two Kennedy factors, on the other hand, probably weigh against the appellants in that the disciplinary sanctions could be regarded as “rationally ... connected” to an alternative, nonpunitive purpose—namely, maintaining institutional order—-without “appearing] excessive” in relation to that purpose. 372 U.S. at 168-69, 83 S.Ct. 554.
We have some flexibility in determining the extent that we choose to utilize the considerations enunciated in Kennedy for purposes of our double jeopardy analysis. See Hudson, 522 U.S. at 99, 118 S.Ct. at 493 (classifying Kennedy factors as “useful guideposts”); Ward, 448 U.S. at 249, 100 S.Ct. 2636 (describing Kennedy factors as “helpful,” but “neither exhaustive nor dispositive”). We therefore exercise our discretion to attribute less significance to Kennedy’s list of considerations in this particular case, primarily because it arises within the prison context. In this unique setting, we must take into account the fact that a prison’s remedial and punitive interests are inextricably related. As the Second Circuit observed, “[p]unitive interests and remedial interests ...- are nowhere so tightly intertwined as in the prison setting, where the government’s remedial interest is to maintain -order and to prevent violent altercations among a population of criminals” and where “remedial concerns require ‘punishing’ individuals for; violent or other disruptive conduct[.]” United States v. Hernandez-Fundora, 58 F.3d 802, 806, 807 (2d Cir. 1995).
Moreover, we factor into our analysis the importance of granting some deference to the judgments of prison authorities in determining “what is necessary and proper to preserve institutional order and discipline, and to encourage good conduct[.]” United States v. Newby, 11 F.3d 1143, 1146 (3d Cir. 1993); see also Garrity v. Fiedler, 41 F.3d 1150, 1153 (7th Cir. 1994) (“Historically, - we have deferred to the expertise of prison authorities regarding questions of prison administration and discipline.”). Accordingly, we recognize the need to refrain from hindering institutional administration. We find the Third Circuit’s reasoning persuasive in this regard:
We do not believe that the Double Jeopardy Clause was ever intended to inhibit prison discipline.... If a prison disciplinary sanction bars subsequent criminal prosecution, the prison authorities will be forced to choose between instituting a disciplinary proceeding or awaiting a criminal prosecution. The process of conducting a criminal investigation and prosecution may take.considerable time. The difficulties and delay that a criminal prosecution entails would leave the prisoners who violated the prison^ rules without a prompt resolution of charges and hinder prison administration and discipline. '
Newby, 11 F.3d at 1146.
Prison officials have no authority to alter the inmates’ original- criminal sentences. They merely implement disciplinary proceedings that may, at most, change the conditions of the inmates’ confinement for purposes of maintaining institutional order and encouraging compliance with prison rules.
Under these circumstances, we cannot conclude that the regulations authorizing the prison disciplinary- sanctions imposed against these appellants are so punitive as to override the government’s intent to create remedial administrative penalties for inmate misconduct. Accordingly, we decline to" classify the regulations as “criminal,” and the appellants’ double jeopardy challenge fails.

Mayes, 158 F.3d at 1223-25 (all but first alteration in original).

Other federal circuit courts have agreed with the reasoning of Mayes. See United States v. Simpson, 546 F.3d 394, 398 (6th Cir. 2008) (agreeing with other circuit courts that the “Double Jeopardy Clause was not intended to inhibit prison discipline, and disciplinary changes in prison conditions do not preclude subsequent criminal punishment for the . same misconduct”); Porter v. Coughlin, 421 F.3d 141, 142, 148-49 (2d Cir. 2005) (holding that a New York regulation that permitted a lengthy period of disciplinary confinement as a.penalty for the appellant’s involvement in rioting and violent conduct while a prison inmate amounted to a civil, not criminal, penalty and thus did not violate the Double Jeopardy Clause). Additionally, the Tenth Circuit has taken the same position post Hudson but without citing to Mayes. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006) (“Because the Double Jeopardy clause only applies to proceedings that are ‘essentially criminal’ in nature, see Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), ‘it is well established that prison disciplinary sanctions’—such as administrative segregation—‘do not implicate’ double jeopardy protections. Wirsching v. Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004).”).

State appellate courts and the court of appeals for "the District of Columbia have also concluded, post-Hudson, that prison sanctions do not implicate double jeopardy concerns. See Haney v. United States, 999 A.2d 48, 50 (D.C. 2010) (finding the reasoning of Porter and Mayes persuasive and holding “that the administrative discipline imposed in this case was not punitive in effect or purpose”); Rogers v. State, 44 S.W.3d 244, 247 (Tex. Ct. App. 2001) (finding “that the Hudson test is not appropriate for prison. disciplinary sanctions [as] [i]t is well-established that sanctions assessed by a prison do not preclude the state from prosecuting' a prisoner for the same conduct”); Commonwealth v. McGee, 560 Pa. 324, 744 A.2d 754, 756-59 (2000) (discussing Hudson and holding .that “where ... prison disciplinary action is imposed for infractions of prison regulations within the confines of the authorized administrative scheme, and such discipline falls within the range of predictable punishment under the original sentence and can be justified on the basis of safe, orderly or efficient institutional administration, it does not implicate [double jeopardy]”).

In the instant case, the handbook does not contain an express indication of whether the sanctions for violations of the code of conduct are intended to be civil’ or criminal in nature. However, the handbook contains language indicating that the purpose of the disciplinary penalties is to manage the inmates. This i¿ evidence that the sanctions are civil in nature. Jones does not assert otherwise.

The handbook provides for potential disciplinary sanctions, including detention and loss of gain. time, which are of the ilk involved in Mayes. We. find the Mayes reasoning persuasive. Although many of the Hudson factors may weigh in favor of a finding that the disciplinary system here is criminal in nature, Hudson makes it clear that no one Kennedy factor takes precedence in the analysis or is dispositive. Additionally, as explained in Mayes, these types of penalties are largely intended to keep order.- To the extent deterrence is a happy side effect of that goal, this does not transform the penalties into criminal punishment for purposes of a double jeopardy analysis. See Hudson, 522 U.S. at 105, 118 S.Ct. 488 (“[T]he mere presence of [the purpose of deterrence]; is insufficient to render a sanction criminal, as deterrence ‘may serve civil as well as criminal goals.’ ” (quoting Ursery, 518 U.S. at 292, 116 S.Ct. 2135)).

Based on the foregoing analysis, we reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

Gross and Klingensmith, JJ., concur.

      . Halper involved a statute which allowed a monetary penalty to be imposed for the making of false claims for government reimbursement. Halper, 490 U.S. at 438, 109 S.Ct. 1892. The Court held that a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause where it is "overwhelmingly disproportionate to the damages ... caused" and "bears no rational relation to the goal of compensating the Government for its loss.” Id. at 449, 109 S.Ct. 1892.

      . The handbook provides the following preamble to the “Rules and Discipline” section:
      Inmate behavior management begins when you are admitted to' the facility. You áre required to obey the facility rules and regulations and 'the Inmate Code of Conduct posted in this handbook and in your housing area. Violating a rule or regulation may result in disciplinary action, for which you will receive. a written ■ disciplinary report .... Discipline will not involve sanctions which are unconstitutional, unlawful, arbitrary, capricious, or iri the nature of retaliation or revenge,
      (Emphasis in original).


text:
    Christopher Donnell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3402
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant timely appeals his sentences for various drug possession charges. We agree with his assertion that the sentence imposed for count I exceeds the statutory maximum sentence. Thus, we reverse his sentence on that count only. We find the remainder of his arguments to be without merit or not preserved.

The defendant pled nolo contendere to count I, possession of twenty grams or less of cannabis, and count II, possession of ethylone, a controlled substance. He was sentenced to four years in the custody of the Department of Corrections on each charge, which sentences were to be served concurrently. Williams then moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging in pertinent part that the sentence for count I exceeded the statutory maximum of one year. In response, the state conceded that the sentence for count I should not have exceeded one year, and the trial court granted the motion as to this ground. However, as the state candidly concedes on appeal, it does not appear that an order was entered to actually correct the sentence on count I.

Possession of twenty grams or less of cannabis is a first-degree misdemeanor. § 893.13(6)(b), Fla. Stat. (20Í6). A first-degree misdemeanor may be punished by a term of incarceration not exceeding one year. § 775.082(4)(a), Fla. Stat. (2016).

As both the state and the trial court recognized, the court erred in entering Williams’ four-year sentence in excess of the statutory maximum. We therefore reverse and remand for resentencing on count I. We affirm the sentence for the remaining count.

Affirmed in part, reversed in part.

Gross, Ciklin and Klingensmith, JJ., concur.


author: Leviné, J.

text:
    Wayne Dwight FARR, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3814
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant. Public Defender,. Wept Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee,
   Leviné, J.

The issue presented for our review is whether the trial court erred in allowing the state to bring out the nature of appellant’s prior convictions in cross-examination after appellant testified to the year in which he was charged for those crimes. We find that the trial court erred and as a result we reverse;

■ Appellant was charged with possession of cocaine and drug paraphernalia. Police officers conducted a traffic stop oil appellant’s vehicle. After appellant refused consent to search the vehicle, 'the officers called for a K-9 unit» Subsequently, the dog alerted to the rear passenger side of the vehicle. The officers discovered a glue tube with thirty-three crack cocaine rocks on the floorboard behind the driver’s seat within arm’s reach' of appellant. After receiving his Miranda warnings, appellant denied owning the vehicle.

Appellant testified in his defense. The parties agreed appellant had been previously convicted of a felony or crime of dishonesty four times. ■ Before appellant testified, the trial court instructed appellant that when asked how many times he had been convicted of a felony or crime of dishonesty,-- appellant was to- answer “four.” He was told that if he answered differently, he would open the door to allowing the state to put the prior convictions in. .

- The following exchange ensued when appellant testified:

Q Okay, And you’ve had four, uh, felony crimes or crimes of dishonesty ?
A Yes sir, in 2010,.
Q Okay, Well -
[THE STATE]: Uh, Your Honor, may we approach?.
THE COURT: Yeah.
(Bench conference}
[THE STATE]: He got out of DOC in 2013.
THE COURT: Now he’s opened the , door.
[THE STATE]: Thank you.
{End of bench conference)
THE COURT: Any more questions?
[DEFENSE COUNSEL]: One moment, Judge. (Pause)
BY [DEFENSE COUNSEL]:
Q Okay Mr. Farr, I know we asked you some questions about your past. That case originated in 2010?
A Yes sir.
Q Okay. And there’s two separate cases?
A Yes sir.
Q Okay. And they each had two separate felonies each?
A Yes sir.
Q Or crimes of dishonesty?
A Yes sir.
Q For a total of four?
A Yes sir.
Q And those two cases were in 2010, that’s when they started, correct?
A Yeah. '
[THE STATE]: Judge, objection, leading.
THE COURT: Uh, sustained.
BY [DEFENSE COUNSEL]: ,
Q What year were those cases initiated?
A Uh, one was in—well, they both was in 2010.

(emphasis added).

During cross-examination, the state' elicited testimony as to the nature of appellant’s prior convictions:

Q Uh, 2010, I want to refresh your recollection.
A Yes ma’am.
Q Actually it’s 2013—I’m showing- you what’s—these are what’s called judgment and sentences, they’re certified copies, if you can see at the bottom. Do you know what that means?
A No, I’m not a lawyer.
Q That’s okay, I’m gonna explain it to you.
A Okay.
Q These certified copies of judgment and sentences show that your convictions are in 2013.
A Okay. I—I know I caught my charges in 2010, I was done with my sentence in 2013.
Q And what were those charges for?
A Uh, one was -
[DEFENSE COUNSEL]: Judge, objection. Asked and answered. Direct—direct did not open the door that far.
THE COURT: I’ll overrule the objection.
BY [THE STATE]:
Q What were those convictions for?
A Uh, I had burglary of a dwelling unoccupied, I had, uh, grand theft, and I had a—no, I had two, burglaries of a grand-—of an unoccupied dwelling and I had two grand thefts.
Q In 2013?
A I was done with my sentence ■ in 2013. .

(emphasis added).

The jury ultimately found appellant guilty as charged. Appellant moved for a new trial, asserting that the trial court erred in allowing the state to inquire into the nature of his prior convictions because he did not mislead the jury when testifying about his prior crimes. The trial court denied the motion and adjudicated appellant guilty. This appeal follows,

We review evidentiary rulings concerning a.defendant’s prior convictions for abuse of discretion.' Tilus v. State, 121 So.3d 1145, 1149 (Fla. 4th DCA 2013).

Generally, impeachment by prior convictions “is restricted to determining, if the witness has previously been convicted of a crime, and if so, how many times.” Ross v. State, 913 So.2d 1184, 1186 (Fla. 4th DCA 2005); see also .§ 90.610, Fla. Stat. (2016). The prosecutor is generally “not allowed to delve into the nature of a defendant’s prior convictions or the circumstances surrounding them.” Ross, 913 So.2d at 1186. “An exception exists, however, when the defendant attempts to mislead the jury about the prior convictions by, for example, trying to minimize them. In such a case, the state is entitled to inquire further regarding the convictions to dispel any false impression given.” Id. at 1187. See also Baker v. State, 102 So.3d 756, 759 (Fla. 4th DCA 2012) (“When a defendant tries to characterize his or her prior convictions in a favorable light at trial, the defendant is considered to have ‘opened the door’ and the state is ‘entitled to inquire further regarding the convictions to attempt to dispel any misleading impression.’ ”) (quoting Rogers v. State, 964 So.2d 221, 223 (Fla. 4th DCA 2007)).

Baker is instructive. In that case, the defendant testified that he did not stop when the officer activated his lights because he had prior bad experiences with the police based on what he perceived to be “profiling.” Id. at 758-59. Finding that the defendant opened the door, the trial court allowed the state to elicit testimony that the defendant had been previously arrested for possession of marijuana. Id. at 759. This court found that the defendant opened the door only to the fact that he had been previously arrested, not the nature of the arrests. Id. We explained: “Because [the defendant] suggested that his prior experiences with the police motivated his conduct in this case, the state was entitled to explore the details of the prior contacts in cross examination to test the veracity of his story.” Id. However, the defendant’s “testimony did not give the state latitude to delve deeper into the specific nature of [the defendant’s] prior arrests” because that “had nothing to do with how the police treated him during these encounters, experiences which he claimed as motivation for his actions in this case.” Id. at 760.

Further, in Ross, the defendant testified he had prior felony convictions and that he pled guilty to those felonies because he was guilty of the charges. 913 So.2d at 1186. Over objection, the trial court allowed the prosecutor to elicit testimony that the defendant had been previously charged with possession of cocaine, robbery, and theft, and that he received favorable plea offers by pleading to those charges. Id. This court found the trial court erred in admitting evidence concerning the nature of the defendant’s prior convictions. Id. at 1187-88. The defendant’s testimony “amounted to nothing more than an implied assertion of innocence on his current charges.” Id. at 1188. Any relevance that his plea to prior offenses was motivated by a favorable plea offer, as opposed to a sense of guilt, was outweighed by potential prejudice, particularly when the prior charge was similar to the current charge. Id. at 1187-88.

As in Baker, although appellant’s testimony opened the door, it did not open it so far as to admit the nature of the prior convictions. Appellant testified that he had four prior felonies or crimes of dishonesty “in 2010.” Assuming this testimony was misleading, it was misleading only insofar as it created the false impression that appellant had not been in trouble with the law in six years. Opening the door is not an all-or-nothing concept. Rather, a court must consider “how wide” the defendant opens the door. Id. at 1187. By testifying as to the date of the offenses, appellant opened the door only as to the dates of convictions in the prior offenses. Eliciting testimony as to the nature of the crimes, that being two counts each of burglary and grand theft, did nothing to dispel the misleading impression created on direct examination as to the timing of those offenses. Simply put, the nature of appellant’s prior convictions was not necessary to negate or dispel any false or misleading impression.

Having established error, the next issue is whether the error is harmless. Under the harmless error test, “the state, as the beneficiary of the error, [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135, 1138 (Fla. 1986). “The erroneous admission of collateral crimes evidence is presumptively harmful.” Ross, 913 So.2d at 1188. “Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997). This is particularly true here where, after finding appellant opened the door, the court permitted evidence of appellant’s convictions for grand theft and burglary of a dwelling. Such evidence was an impermissible attack on appellant’s credibility. See Ross, 913 So.2d at 1186; § 90.610, Fla. Stat.

Additionally, the issue in this case basically boiled down to the credibility of appellant’s defense that he did not know the drugs were in the car. Where a case turns on the defendant’s credibility, it cannot be said that the error is harmless. Bain v. State, 422 So.2d 962, 962 (Fla. 4th DCA 1982); Livingston v. State, 682 So.2d 591, 592 (Fla. 2d DCA 1996); Foster v. State, 182 So.3d 3, 5 (Fla. 2d DCA 2015). As such, we reverse and remand.

Reversed and remanded.

Gerber, C.J., and May, J., concur.

      , Appellant also claims that the evidence presented at trial was legally insufficient. We find this issue to be without merit.


text:
    Anthony MCGOOGLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2430
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Anthony McGoogle, Indiantown, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed. See Roger v. State, 223 So.3d 281 (Fla. 4th DCA 2017); Davis v. State, 223 So.3d 1106 (Fla. 5th DCA 2017).

Gross, Klingensmith and Kuntz, JJ., concur.


author: Conner, J.

text:
    STATE of Florida, Appellant, v. Rodney CHAVERS, Appellee.
    No. 4D16-3006
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]

      ■ Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel, and Paul 0,’Neil, Assistant Regional Counsel, Office, of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for ap-pellee.
   Conner, J.

The State appeals the trial court’s grant of immunity from prosecution and dismissal of the information against Rodney Chav-ers charging him with second-degree murder with a firearm. Because the order on appeal is silent on necessary findings, we-reverse, quash the order, and remand for further proceedings. ■-

Background

The State charged Chavers with second-degree murdeir with a firearm occurring on November 13, 2015. Chavers filed a motion to dismiss based on immunity under sections 776.012(2) and 776.032(1), Florida Statutes (2016), and Florida Rule of Criminal Procedure 3.190(b). Chavers alleged that he was immune from criminal prosecution because he believed, at the time of the shooting, that the shooting was necessary to prevent death or great bodily harm to himself or to prevent the imminent commission of a forcible felony—the victim robbing him of his money.

In July 2016, the trial court conducted an evidentiary hearing on the motion. During the hearing, Chavers testified that on the day of the shooting, he had $300 to $400 in cash in his possession, which he took out of his pocket in front of a group of friends, including the victim. One of the men told Chavers that he should not be walking around with cash on him because of the reputation of the neighborhood. Chavers responded that he “was safe,” that he “had protection,” and that he “wasn’t worried.” Chavers testified that, in response, the victim said that “you [Chav-ers] [sic] not gonna do shit, I’ll take it.” Chavers ignored the victim’s statement and continued talking with his friends.

Unprovoked, Chavers was then attacked from behind on the left side of his face, knocked up against a car, and became dazed. Chavers also testified that as he was trying to get up, he recognized that the victim Was the one that hit him, and that the victim hit him several'more times. He then saw the victim reaching for Chav-ers’s side, but did not know whether the victim was reaching for Chavers’s gun or the money in his pocket. The victim eventually made contact with Chavers’s gun. Chavers tried to remove the victim’s hand from his gun. Chavers grabbed his gun and struggled to block the’ attack with his other hand, and while he was still against the car, because he was not able to get up, he pulled the trigger. The victim did not drop to the ground. Chavers and the victim then ran in different directions. However, the victim eventually died of his'gunshot wounds. Chavers also testified that he had known the victim for years and had previously seen the victim carry a firearm.

Chavers’presented as a witness one of the men in the group that night. The witness corroborated Chavers’s account of the exchange between Chavers and the victim leading up to the men struggling over Chavers’s gun, but upon seeing the two struggle over the gun, the witness ran from the scene. He testified he heard shots, but did not see the actual shooting.

The State called witnesses as well, but none were eyewitnesses to the exchange between Chavers and the victim or the shooting. The State’s witnesses testified regarding the actions and statements of Chavers after the shooting. .

In a written order, the trial court found that Chavers’s “fear of'imminent great bodily harm was objectively reasonable,” and that Chavers established by a preponderance of the evidence that he was “reasonable in his belief that use of the gun - was necessary to prevent imminent death or great bodily harm.” As such, the trial court decided that Chavers was entitled to immunity, and dismissed the information. The trial court did not diseuss in the written order whether Chavers was engaged in a criminal activity 'at the time of the shooting, even though both the prosecutor and defense counsel argued this issue at the hearing.

The State gave notice of appeal. •

Appellate Analysis

In a motion to dismiss for immunity under section 776.032, Florida Statutes, “[t]he trial court’s factual findings are entitled to deference and must be supported by competent substantial evidence.” Joseph v. State, 103 So.3d 227, 220 (Fla. 4th DCA 2012). “The trial court’s legal conclusions are reviewed de novo.” Id. at 230.

Chavers sought immunity from prosecution under sections 776.032(1) and 776.012(2), Florida Statutes (2016). Section 776.032(1) provides, in pertinent part:

(1) A person, who uses or threatens to use force as permitted in s. 776,012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person ....

§ 776.032(1), Fla. Stat. (2016). Section 776.012(2), provides:

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

§ 776.012(2), Fla. Stat. (2016). In other words, a grant of immunity under the rubric of “Stand Your Ground” law requires the application of at least two separate statutory provisions, yielding three separate paths to immunity.

The State asserts that the trial court erred in granting Chavers’s motion to dismiss without first determining as a matter of fact whether Chavers was “engaged in a criminal activity.” The State argues that immunity pursuant to section 776.012(2) is unavailable if Chavers was involved in a criminal activity just prior to shooting the victim. The State further argues that the evidence presented clearly establishes that in the moments leading up to the shooting, Chavers was either committing a felony (carrying a concealed firearm without a license) or a misdemeanor (open carry of a firearm). Thus, the State contends that because Chavers was engaged in committing either criminal activity, he is not entitled to immunity.

Chavers responds with three arguments: (1) section 776.012(2) permits a person engaged in criminal activity to use deadly force if he or she satisfies the common-law

duty to retreat; (2) the evidence showed that Chavers might have been openly carrying a firearm, merely a second-degree misdemeanor, which does not or should not qualify as a criminal activity for the purposes of section 776.012(2); and (3) it is the State’s burden to show that Chavers was engaged in a criminal activity, and the State did not satisfy this burden.

Both the State and Chavers contend the language of section 776.012(2) is unambiguous and does not require statutory interpretation, yet standing on that contention, both sides argue the application of the statute yields diametrically opposite results. The primary difference between both sides is the import of the second sentence of section 776.012(2). Our opinion focuses on the import of the second, sentence, and we do not address Chavers’s arguments regarding what constitutes “a criminal activity” for purposes of section 776.012(2) and who has the burden of proof at the evidentiary hearing to determine immunity. We note that in 2017, section 776.032 was amended to add subsection (4), which addresses the burden of proof for claims of immunity. § 776.032(4), Fla. Stat. (effective June 9,2017).

We begin addressing the diametrically opposed positions with three preliminary observations. First, immunity is granted statutorily in the context of both deadly and non-deadly force. This is obvious because section 776.032 requires that the use of force be permitted under either sections 776.012, 776.013, or 776.031, and each of those sections provides for the use. of deadly and non-deadly force. See §§ 776.032, 776.012, 776.013, and 776.031, Fla. Stat. (2016). Second, under all four statutory provisions, the use of force is linked to having no duty to retreat under certain circumstances. Third, a denial of immunity does not preclude a claim of self-defense as an affirmative defense at trial. Bretherick v. State, 170 So.3d 766, 778 (Fla. 2015) (“[I]f the motion to dismiss and the petition for writ of prohibition are denied, as in Bretherick’s case, the defendant has yet another opportunity to claim self-defense as an affirmative defense at trial.”).

It is because the legislature has linked the use of force to no duty to retreat under certain situations that we agree with the State that immunity cannot be granted in this case unless the requirements of the second sentence of section 776.012(2) are met. The legislature’s intent was clear and unambiguous in the 2014 amendment to section 776.012 when it enacted subsection (1) to apply to non-deadly force, subsection (2) to apply to deadly force, and included in subsection (2) a provision for no duty to retreat when deadly force is used, provided the person using deadly force “is not engaged in a criminal activity and is in a place where he or she has a right to be.” See § 776.012, Fla. Stat. (2016). We conclude the distinction in the duty to retreat in section 776.012 between deadly and non-deadly force is imported into section 776.032 under the section 776.012(2) path for immunity. Therefore, we hold that for Chavers to be immune from prosecution under the statutory authority cited in his motion, the trial court must find from the evidence that, at the time Chavers used deadly force, he (1) reasonably believed that using such force was necessary to prevent imminent death or great bodily harm to himself or to prevent the imminent commission of a forcible felony, (2) was not engaged in a criminal activity, and (3) was in a place he had a right to be.

In this case, the written order of the trial court granting immunity does not make any findings or reach any conclusions as to the requirements of the second sentence of section 776.012(2). Although it appears from the record that the parties did not dispute below that Chavers was in a place where he had a right to be at the time deadly force was used, they clearly disputed the issue of whether he was engaged in a criminal activity. Thus, we reverse and quash the order below granting immunity and remand for the trial court to enter an appropriate order after making additional findings regarding the requirements of the second sentence in section 776.012(2). We express no opinion, because the issues were not addressed by the trial court, as to what constitutes a criminal activity, which party has the burden of proof, and what effect a denial of immunity, if that is the trial court’s final decision, would have on further proceedings.

Reversed and remanded.

Forst and Klingensmith, JJ., concur.

      , The amendment to section 776.032, now codified as subsection (4), reads as follows:
      In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
      § 776.032(4), Fla. Stat. (effective June 9, 2017).


author: Per Curiam.,

text:
    Rikki A. DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3749
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]

      'Antony P. Ryan, Regional pounsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.,

Affirmed. See Chapa v. State, 159 So.3d 361 (Fla. 4th DCA 2015).

Warner, Taylor and Damoorgian, JJ., concur.


text:
    D.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2265
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public'Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee. ,
   Per Curiam.

Affirmed. See Stephens v. State, 92 Fla. 43, 109 So. 303 (1926).

Warner, Taylor and Damoorgian, JJ., concur.


author: Per Curiam.'

text:
    Martha ECHEVERRY, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee Asset-Backed Certificates, Series 2006-3, Appellee.
    No. 4D16-3611
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]
    Martha Echeverry, Pembroke Pines, pro se.
    Michele L. Stocker of Greenberg Trau-rig, P.A., Fort Lauderdale; Kimberly S. Mello and Julie A. Girard of Greenberg Traurig, P.A., Tampa, for appellee.
   Per Curiam.'

We affirm the order directing the clerk to issue the certificate of title to appellee at the end of 'this mortgage foreclosure proceeding. Appellant’s claim that the order was .void as a result of the automatic stay of bankruptcy, after the filing of her seventh petition for bankruptcy, is without merit. Because she did not file her bankruptcy petition until after issuance of the certificate of sale of the property, her right of redemption had terminated and her interest in the property was already extinguished. See § 45.0316, Fla. Stat. (2014); Household Fin. & Mortg. Co. v. Osta, 862 So.2d 885, 886 (Fla. 6th DCA 2003).

Affirmed.

Warner, Gross and Taylor, JJ., concur.


text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Joselito L. MARTINS a/k/a Joselito Martins, Martin’s Crossing Homeowners Association, Inc., Mortgage Electronic Registration Systems; Inc., as Nominee for CTX Mortgage Company, LLC, and unknown tenant in possession of the subject property, Appellees.
    No. 4D16-3735
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Celia C. Fal-zone of Akerman LLP, Jacksonville, for appellant.
    W, Trent Steele of Steele Law, Kobe Sound, for Appellee Joselito Martins.
   Per Curiam.

Affirmed. See Partridge v. Nationstar Mortg., LLC, 224 So.3d 839 (Fla. 2d DCA 2017) (holding that mortgage loan servi-cer’s unilateral decision to leave original note and mortgage with trial court'did not establish standing to foreclose, where original note was filed with trial court long before servicer commenced foreclosure action)., In light of this disposition, we need not reach the issue raised on cross-appeal.

Warner, Gross and Taylor, JJ., concur.


text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and the Florida Commissioner of Agriculture, Appellants, v. Toby BOGORFF, et al., Appellees.
    No. 4D17-2161
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]

      Wesley R. Parsons, Karen H. Curtis and David S. Weinstein of Clarke Silverglate, P.A., Miami, for appellants.
    Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort Lauderdale, Robert C. Gilbert of Grossman Roth Yaffa Cohen, P.A., Coral Gables, Joseph H. Se-rota and Jamie A. Cole of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, and William S. Williams of Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P., for appellees.
   Per Curiam.

Affirmed. See Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989); see also, State of Fla., Dep’t of Ins. v. Accelerated Benefits Corp., 817 So.2d 1086 (Fla. 4th DCA 2002)

Warner, May and Conner, JJ., Concur.


text:
    Karla SOTOMAYOR, Appellant, v. James BATMASIAN, an individual d/b/a Investments, Ltd., Marta Batmasian, an individual d/b/a Investments, Ltd., LSA Management, Inc., and Daron Tersakyan, an individual, Appellees.
    No. 4D17-2344
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2017]
    Chris Kleppin and Chelsea A. Lewis of Glasser & Kleppin, P.A., Plantation, for appellant.
    Heather E. Kruzyk of Simon & Sígalos, LLP, for appellees.
   Per Curiam.

We reverse the trial court’s order imposing attorney’s fees as a sanction. The court sanctioned appellant based on her attorney’s violation of a court order. The sanction order fails to comply with the requirements of Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). In addition, there was insufficient evidence to support the amount of fees imposed by the court. See Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505 (Fla. 4th DCA 2000).

Reversed.

Ciklin, Conner and Klingensmith, JJ., concur.

      . This case was filed as a petition for writ of certiorari. We treat the petition as an appeal from a final order on a collateral issue. Ruppel v. Gulf Winds Apartments, Inc., 508 So.2d 534, 535 (Fla. 2d DCA 1987) ("An attorney fee award is deemed final for purposes of appeal from that order.”).


text:
    BOCA RATON REGIONAL HOSPITAL, INC. and Boca Raton Hospital Foundation, Inc., Petitioners, v. Tim WILLIAMS, M.D., Robert Mannheimer, and Robert A. Tepedino, Respondents.
    No. 4D17-1732
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]

      Martin B. Goldberg, Rachel E. Kaufman and Jason A. Coe of Lash & Goldberg LLP, Miami, and Lawrence J. Miller and Norman A. Fleisher of Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A., Boca Raton, for petitioners.
    Amy S. Rubin and Seth B. Burack of Fox Rothschild LLP, West Palm Beach, for respondent, Tim Williams, M.D.
   Per Curiam.

Petitioners Boca Raton Regional Hospital, Inc. (Hospital) and Boca Raton Hospital Foundation, Inc. (Foundation) seek' certiorari review of a trial court order denying their motion to disqualify opposing counsel in a pending lawsuit against them and others involving a trust. The trust provided a multi-million dollar bequest to the hospital. The trial court ruled that the petitioners lacked standing to move to disqualify counsel. In doing so, we conclude that the trial court departed from the essential requirements of law; We quash the order and return the case for further proceedings consistent with this opinion.

Material Facts and Procedural History

Richard Blackman died in September. 2012 and his will provided for his estate to be distributed to the Richard Blackman Revocable Trust, including the subject hospital bequest. Blackman had been a patient of respondent Dr. Tim Williams (the doctor), who contends he was appointed to control the terms of the bequest. The doctor is represented by Attorney Amy Rubin from Fox Rothschild, L.L.P. (the law firm). Another partner from the same law firm, Attorney Jerold Glassman, retains a seat on the hospital’s board of directors.

In January 2017, the hospital filed in Nassau County, New-York, a petition for probate seeking construction of the terms of the bequest and other matters. In February 2017, the doctor sued the hospital, foundation and two other, defendants in this case in Palm Beach County, claiming he had full control over the bequest based on the will and trust provisions of decedent/donor.

The hospital and foundation moved to disqualify counsel for .the doctor, alleging a conflict of interest because Attorney Glass-man had participated in board discussions on the issues in the two pending estate and trust cases “including legal issues..a.nd strategy, and the role of Dr. Williams with respect to the Blackman gift.” The hospital and foundation argued that Attorney Glassman as a member of the board of trustees liad a fiduciary duty and a duty of loyalty to them both. They claimed that this duty and resulting conflict was imputed to other members of the same law firm, including the attorney representing the doctor iñ the Florida lawsuit.

In a supporting affidavit, Alexander D. Eremia, vice president and general counsel for the hospital and foundation secretary, said, that Glassman as member of the board of trustees discussed the Florida and New York cases, “including legal issues and strategy, and the role of Dr. Williams with respect to the Blackman gift.” The affiant said that Glassman sent-him an email after learning that the law firm had filed suit on behalf of the doctor, stating “as you know, I am a Partner in Fox, Rothschild, Amy Rubin is my Part-’ ner. On its face and with Amy’s participation adverse to [the Hospital], the Complaint presents a conflict for me and most likely for [Fox Rothschild].” He further alleged that counsel for the hospital and foundation wrote opposing counsel Rubin and advised her of the law 'firm’s conflict of interest. Counsel requested that, the law firm withdraw from representing the doctor in this Florida case but the law firm declined. He also said neither the hospital nor the foundation consented to, or discussed the law firm’s representation of the doctor in this Florida case, and that no attorney from the firm had requested their consent for such representation.

Opposing disqualification, the doctor filed an affidavit from Thomas Paradise,' general counsel for the law firm, who said that Glassman transitioned to senior' counsel status in 2008 and that the firm had screened him from access' to information about the issues in the lawsuit. Paradise said Glassman could not have accessed any information about the subject of the Florida lawsuit and that in March 2017 the firm searched its document system and found no emails sent or received by Glassman involving the hospital and/or board members.

This presented a factual dispute but the trial court did not -address or resolve it. Instead, after hearing argument, the court denied the motion to disqualify for lack of standing because neither the hospital nor foundation could “stand in the shoes” of a current or former client, and therefore they lacked standing to seek disqualification.

Analysis

Certiorari lies to review a trial court order on á motion to disqualify counsel. Philip Morris USA Inc. v. Caro, 207 So.3d 944, 949 (Fla. 4th DCA 2016). The petitioner seeking certiorari review must demonstrate a departure from the essential requirements of law resulting in material harm of an irreparable nature. Manning v. Cooper, 981 So.2d 668, 670 (Fla. 4th DCA 2008). Orders on motions for disqualification are reviewed for an abuse of discretion. Id. Courts recognize that disqualification of counsel “is an extraordinary remedy and should only be resorted to sparingly,” Id. (quoting Alexander v. Tandem Staffing Sols., Inc., 881 So.2d 607, 608 (Fla. 4th DCA 2004)).

Disqualification of counsel in these circumstances is governed by Rule 4-1.7 of the Rules Regulating the Florida Bar, including subsection (a) that provides:

(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer must not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to .another client, a former client or a third person or by a personal interest of the lawyer.

R. Regulating Fla. Bar. 4-1.7 (emphasis added).

The Comments to this rule, under the heading “Other Conflict Situations” contain the following provisions regarding a lawyer’s membership in a board of directors and representation of a corporation:

A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the 2 roles may conflict. The lawyer may be called on to advise the corporation in matters involving the actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer’s resignation from the board, and the possibility of the corporation’s obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as director.

R. Regulating Fla. Bar 4-1.7 Cmt.

Glassman was not a lawyer for the hospital here, but rather a lawyer in a law firm that represented1 the doctor suing the hospital. Thus, the circumstances are different than those addressed by this Comment. However; the Comment is noteworthy because it recognizes the potential of attorney conflict of interest based on board membership by a lawyer.

The other pertinent rule, imputing conflict from one member of the firm to all other firm lawyers, is Rule 4-1.10(a), that provides: .

Imputed Disqualification of All Lawyers in Firm. While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9, except as provided elsewhere in this rule, or unless the prohibition is based on a personal interest of the prohibited, lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

In ruling that petitioners lacked standing, the trial court focused on whom the law firm had represented. In doing so, we conclude that it departed from the essential requirements of law. The rules, Comment and authorities demonstrate that the required analysis does not always turn on present or former representation of the party seeking disqualification. Instead, as recognized in State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d 630, 632 (Fla. 1991), and Zarco Supply Co. v. Bonnell, 658 So.2d 151, 154 (Fla. 1st DCA 1995), .a party may seek disqualification of opposing counsel where the conflict of interest involves represehtation of someone other than the movant and where it is such “as clearly to call in question the fair'-or efficient administration ,bf justice.” K.A.W., 575 So.2d at 632 (citing R. Regulating Fla. Bar 4-1.7 Cmt.).

We reject without discussion the doctor’s claims including waiver of conflict, waiver of the right to an evidentiary hearing, and that Glassman had a personal interest based on his board membership that did not warrant disqualification. Further, an evidentiary hearing was necessary in this case to resolve the factual disputes in the affidavits for both sides. Quality Air Cond. Co. v. Vrastil, 895 So. 2d 1236, 1238 (Fla. 4th DCA 2005). For the reasons above, we quash the trial court’s order and return the case for evidentiary hearing and further consideration consistent with this opinion.

Petition for writ of certiorari granted; order quashed and case returned to the trial court.

Ciklin, Forst and Klingensmith, JJ., concur.

      . Petitioner has filed a Notice of Supplemental Authority advising that while this cause was pending here, the Nassau County Surrogate’s Court of the State of New York has granted a motion to disqualify the same law firm from representing Dr. Williams in its related proceedings.