author: LUCK, J.

text:
    Derrick WESTBERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-941
    District Court of Appeal of Florida, Third District.
    Opinion filed February 14, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   LUCK, J.

Derrick Westberry was convicted and sentenced at a nonjury trial for resisting an officer without violence and petit theft after stealing two eighteen-packs of beer from a convenience store. Westberry contends on appeal that the waiver of his jury trial right was not a knowing, voluntary, and intelligent one. We disagree, and affirm.

On February 8, 2016, after discussing Westberry's bond status, the trial court asked about the trial date: "Now do we have future dates? Do we need sounding and trial dates?" The assistant state attorney told the trial court: "Judge, I have a February date. This is one of the cases where both the defense and I stipulated that we can do to a bench trial." The trial date was set by the clerk, and the hearing concluded.

A month later, the case was ready for trial. Following up on the earlier request for a bench trial, the court had this colloquy with the defendant:

[The trial court]: Counsel are we in a position to proceed on Mr. Westberry?
[Defense counsel]: Yes, Judge.
[The trial court]: Okay. If we are going to go bench he has to waive his right to trial by jury on the record. This is on page 28 [of the calendar.] Derrick Westberry case F15-13881.... Mr. Westberry you understand that you have a right under two constitutions to have a trial by a jury?
[Westberry]: Yes.
[The trial court]: But you're going to waive that right and proceed to trial to the bench-trial to me?
[Westberry]: Yes.
[The trial court]: You have talked that over with [defense counsel]?
[Westberry]: Yes.
[The trial court]: Has he answered all your questions?
[Westberry]: Yes.
[The trial court]: Are you satisfied with his advice on this point?
[Westberry]: Yes, sir.
[The trial court]: And you believe that this is in your best interest?
[Westberry]: Yes, sir.
[The trial court]: This has to be your decision not his. Is this your decision?
[Westberry]: Yes, sir.
[The trial court]: So you're waiving trial by jury.

"The Sixth Amendment to the United States Constitution provides that a defendant has a fundamental right to a jury trial. The Florida Constitution specifies that the right of trial by jury shall be secure to all and remain inviolate. An effective waiver of a constitutional right must be knowing, voluntary, and intelligent. A defendant may waive the right to a jury trial, provided that the waiver appears on the record." State v. Upton, 658 So.2d 86, 87 (Fla. 1995) (citations and quotations omitted). Westberry contends his colloquy with the trial court did not knowingly, voluntarily, and intelligently waive his fundamental right to a jury trial. We disagree because the colloquy in this case was comparable to, and more searching than, other jury trial waivers that the Florida Supreme Court and the district courts have approved.

In Tucker v. State, 559 So.2d 218 (Fla. 1990), the trial court had this colloquy with the defendant about waiving his jury trial right:

THE COURT: Mr. Tucker (a codefendant) is right here? And Mr. Ringeman[n] is right there.
Gentlemen, your counsel has explained what a non-jury trial means to you; however, I want to make sure that you fully understand that when you were arraigned in this case you entered a plea of not guilty requesting a trial before jury. That was your right at that time. You could have had a jury trial. You could have asked your attorney to come in here and pick six people from the community to hear your case which you would not have in a non-jury trial.
The state, of course, had a right to then make a formal decision if you decided you did not want a jury trial; that you were agreeable for going to a non-jury trial.
Your lawyer is correct if the state is willing to let the case be tried before me as judge without a jury being present to listen to the evidence. In that case it will be the judge who will determine any issues of fact in the case as well as any questions of law.
I want to make sure if you agree to going non-jury that you do so voluntarily and should there be a finding of guilt in this case and that either of you will not, thereafter, come in the [sic] and comment that it was done because you did not have a jury or if you had had a jury that the verdict would have been otherwise.
It is you[r] privilege, it is your choice. I will ask you, directly, Mr. Ringeman[n], do you wish to proceed to trial before a judge and without a jury? Yes or no?
MR. RINGEMAN[N]: Yes, sir.
THE COURT: To you.
MR. TUCKER: Yes, sir.
THE COURT: Mr. Tucker, also, the same question to you. Are you willing to proceed without a jury?
MR. TUCKER: Yes.
THE COURT: You are willing to let the judge make the decision to the questions of facts as well as the issues of law?
MR. RINGEMAN[N]: Yes.
MR. TUCKER: Yes.
THE COURT: [Assistant State Attorney], we cannot go any further than that.
[ASSISTANT STATE ATTORNEY]: That being the case, the defendants being fully advised of their rights and facts that they are codefendants on this one trial I see nothing further to admonish them on. The state will accept the defense motion to go by way of bench trial.

Ringemann v. State, 546 So.2d 52, 53 (Fla. 4th DCA 1989) (alterations in original). Reviewing this colloquy, the Florida Supreme Court held that "Tucker validly waived his right to a jury trial," and "made a knowing and intelligent waiver." Tucker, 559 So.2d at 220.

In Zinnerman v. State, 985 So.2d 672 (Fla. 2d DCA 2008) (Canady, J.) (en banc), the en banc district court reviewed this colloquy for whether it was a valid waiver of the defendant's jury trial right:

At a pretrial hearing, counsel for Zinnerman stated to the court that "Mr. Zinnerman has previously indicated and I think perhaps wisely that this would not be a good situation for a jury trial." The court then stated to Zinnerman:
Now your attorney is telling me that you want to have a trial before the Court which is where I would make the findings of fact as well as law instead of you having a jury that would make findings of fact and I would make findings of law. Do you ... want a trial with the Judge only?
Zinnerman responded, "right" and proceeded to express various complaints about his attorney's performance. Zinnerman's counsel commented on these matters, and the court determined that Zinnerman was not "being provided ineffective assistance of counsel." The court then stated to Zinnerman: "If you would like a bench trial we will set a bench trial." The court then reiterated that with a jury trial, "the jury would decide the facts and the [judge] would decide the law." The trial court then asked Zinnerman, "I'm deciding the facts and the law[,] correct?" Zinnerman replied, "Right, right."

Id. at 672 (alterations and omissions in original). From this colloquy, the district court concluded "that there [was] no basis for determining that Zinnerman's waiver was invalid." Id. at 674.

In Dumas v. State, 439 So.2d 246 (Fla. 3d DCA 1983) (en banc), "[t]he question presented for review" by our en banc court was "whether record evidence showing an information stamped 'waived trial by jury with consent of state,' above which [was] the signature of the defendant, [was] sufficient, on a direct appeal from a judgment of conviction, to support a finding of an effective waiver of that constitutional right." Id. at 248. The court quoted this portion of the record as support for its conclusion:

PROSECUTOR: This [case of Anthony Dumas] was set for a bench trial at eight o'clock. We did not try the case.
I believe we are in the process of plea negotiations at this time, and we may pass it.
Marilynn [defense counsel], is that correct?
DEFENSE COUNSEL: That is correct.
THE COURT: All right.
(Thereupon, other matters were heard, after which the following proceedings were had:)
THE COURT: Anthony Dumas.
DEFENSE COUNSEL: We are ready for trial.

Id. (alterations in original). This and the signature on the information was "[t]he entire record on the waiver question." Id. Still, the en banc court affirmed the conviction because "there [was] nothing in the record which suggest[ed] that the waiver was not voluntary and intelligent." Id. at 252-53.

Finally, in the context of waiving the state constitutional right to a six-member jury, the Florida Supreme Court reviewed this colloquy after a trial ran late and one of the jurors on the six-member panel could no longer serve. Blair v. State, 698 So.2d 1210, 1211 (Fla. 1997).

Mr. Brown [Defense Counsel]: What if both sides agree to go with five?
The Court: That's fine with me.
Mr. Lawson [Prosecutor]: Judge, the State is willing to go along with that.
Mr. Brown: Let me tell you in thirty seconds [sic] to discuss it with my client because I don't think it would be fair.
The Court: All right....
....
It is my understanding that both attorneys will stipulate that we can excuse juror number six who is Thomas Murray and we will try this case with five jurors and be bound ....
Mr. Lawson: Judge, I will go along with that. I have only one request and that is that Mr. Murray put it on the record.
The Court: I am going to do that but first I've got to explain to Mr. Blair what we are considering.
Mr. Lawson: Okay.
The Court: And then, whatever decision they make will be binding on the Court and on the Defendant. I am going to give you as much time as you need now to discuss that possibility with your client, Mr. Brown.
Mr. Brown: I have already discussed it with him and as opposed to postponing it a week or having a possible mistrial, we would rather go with five and I quickly tried to explain [to] him the alternative.
The Court: All right. Let me have [you] explain them again. I want to make sure that this is what he wants to do.
Mr. Brown: Well, I told him there is a potential for a mistrial. There also is, as the Court has suggested, postponing it a full week until February 1st and I have to admit I didn't tune in to what other [juror's] problem is going to be, something about an owner coming to town.
The Court: Well, he didn't sound terrifically serious to me.
Mr. Brown: Well, there are other possibilities of postponing it for a full week and starting it up again February 1st or going with five jurors. I see that as the three alternatives. I'm sure my client doesn't want a mistrial. So, that leaves us with two alternatives, either February 1st starting off again a week later or going with five jurors.
The Defendant: Your Honor, we will take the five, if that's all right with you.
The Court: All right. We will do that then.

Id. at 1211-12 (alternations and omissions in original). While acknowledging that "the colloquy may not have been a perfect example of a knowing, intelligent, and voluntary waiver of a constitutional right," the Court concluded "that Blair's personal on-the-record waiver, after consultation with counsel, provided a sufficient procedural safeguard to affirmatively show that Blair understood his rights and the options available to him." Id. at 1218. The Court "re-emphasized that in whatever context the issue of waiver arises, the goal of waiver remains constant: to ensure that any waiver of a substantial right be done knowingly, intelligently, and voluntarily and that a record be made to demonstrate this fact." Id.

We find the record of Westberry's oral waiver to be knowing, voluntary, and intelligent, and consistent with the ones approved in Tucker and Zinnerman. The trial court, as in Tucker and Zinnerman, before accepting the waiver made sure Westberry knew about his jury trial rights under the United States and Florida Constitutions by verifying the defendant understood those rights (he said he did). See Tucker, 559 So.2d at 220 ("If the defendant has been advised by counsel about the advantages and disadvantages of a jury trial, then the colloquy will serve to verify the defendant's understanding of the waiver."). The trial court, as in Tucker and Zinnerman, before accepting the waiver made sure Westberry's decision was an intelligent one by asking if he talked it over with his attorney (he had), his attorney answered all his questions (he did), and Westberry was satisfied with his attorney's advice on waiving the jury trial right (he was). The trial court, as in Tucker and Zinnerman, before accepting the waiver made sure Westberry's waiver was voluntary by asking if the waiver was in his best interest (it was), and was a decision that he alone made (it was). Westberry had a month between when the issue was first raised, and the date of the trial, to discuss waiving his jury trial right with his attorney, get all his questions answered, and satisfy himself that the decision was in his best interests, which he did.

The colloquy with Westberry was more searching than the ones approved in Dumas and Blair. The trial court, unlike in those cases, before accepting the waiver made sure Westberry understood the right he was waiving. The trial court, unlike in those cases, before accepting the waiver made sure Westberry had time to talk with his attorney about waiving this fundamental constitutional right, had all his questions answered, and was satisfied with his attorney's advice on the issue. The trial court, unlike in those cases, before accepting the waiver made sure Westberry was making the decision on his own and because it was in his best interest. The trial court did more than engage Westberry in the single-sentence exchanges that were found to be sufficient waivers in Dumas and Blair. Blair, 698 So.2d at 1212 ("Your Honor, we will take the five, if that's all right with you."); Dumas, 439 So.2d at 248 (the information was stamped " 'waived trial by jury with consent of state,' above which [was] the signature of the defendant").

Still, even though we find the colloquy sufficient to show that Westberry knowingly, voluntarily, and intelligently waived his right to a jury trial, we emphasize, as the Florida Supreme Court did in Tucker,

it is better practice for trial courts to use both a personal on-the-record waiver and a written waiver. An appropriate oral colloquy will focus a defendant's attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver. If the defendant has been advised by counsel about the advantages and disadvantages of a jury trial, then the colloquy will serve to verify the defendant's understanding of the waiver. Executing a written waiver following the colloquy reinforces the finality of the waiver and provides evidence that a valid waiver occurred.

Tucker, 559 So.2d at 220. Although perfection is not required, we agree with the Court that this procedure "better promotes the policy of recognizing only voluntary and intelligent waivers." Id.

Affirmed.

      While Florida Rule of Criminal Procedure 3.260 provides for the jury trial waiver to be in writing, the Florida Supreme Court has approved a defendant's oral waiver so long as it is knowing, voluntary, and intelligent. See Tucker v. State, 559 So.2d 218, 219-20 (Fla. 1990) (approving district court's opinion affirming the defendant's conviction after an oral waiver of the jury trial right because it was made knowingly and intelligently, and "[t]echnical noncompliance with a rule of procedure is permissible if there is no harm to the defendant").

      The cases relied on by Westberry are inapplicable because in those cases: (1) there was no record evidence the defendant (as opposed to counsel) waived the jury trial right, Torres v. State, 43 So.3d 831, 833 (Fla. 1st DCA 2010) ("[T]he record is devoid of any mention of the right to a jury trial."); Babb v. State, 736 So.2d 35, 36 (Fla. 4th DCA 1999) (noting "[t]he absence from the record of a valid waiver of Babb's right to jury trial"); Sinkfield v. State, 681 So.2d 838, 838 (Fla. 4th DCA 1996) ("[T]he appellant's remaining mute (during counsel's apparent waiver of appellant's right to jury trial) did not constitute a valid waiver of that right."); (2) the trial court did not colloquy the defendant about whether the waiver was knowing, voluntary, and intelligent, Morris v. State, 680 So.2d 544, 545 (Fla. 1st DCA 1996) ("At a pre-trial conference, appellant's counsel orally moved for a non-jury trial. Defense counsel then asked appellant if this was his request, and appellant orally affirmed. The trial court granted the request without any further inquiry of appellant, and no written waiver of jury trial was filed."); and (3) the waiver was equivocal, Robinson v. State, 674 So.2d 160, 160 (Fla. 3d DCA 1996) ("In this case, the record of the oral colloquy is, at best, equivocal."). Here, the defendant unequivocally waived his jury trial right, and the trial court asked questions about whether the waiver was knowing, voluntary, and intelligent. The issue here is whether the trial court's colloquy was sufficient enough to waive the fundamental right to a jury trial. We find that it was.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph M. DENNIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4033
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 20, 2018 Rehearing Denied April 2, 2018
    Joseph M. Dennis, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Robbinson v. State, 784 So.2d 1246, 1247 (Fla. 3d DCA 2001) (holding Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply to Florida's habitual offender statute).

ORFINGER, WALLIS and EDWARDS, JJ., concur.


author: LAMBERT, J.

text:
    Charles T. MOORE, esq., Appellant, v. ESTATE OF Flaire Mae ALBEE, BY Mary BENZENHAFER, Penny A. Coffey, Lisa Hogan, Christina Fox, Jeffrey Lindway, and Michael Farrar, Appellees.
    Case No. 5D17-2242
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    Charles T. Moore, Port Orange, pro se.
    Michael Farrar, Aventura, pro se.
    No Appearance for other Appellees.
   LAMBERT, J.

Charles Moore appeals the trial court's order denying his motion for attorney's fees under section 57.105, Florida Statutes (2013). Moore argues that the court erred because it applied an incorrect standard in evaluating and, thereafter, denying his motion. Although Moore is correct, we nevertheless affirm because, as we explain below, the trial court reached the right result, albeit for the wrong reason.

Moore is an attorney who represented the heirs of the Estate of Fred Albee. At the time of his death, Fred Albee ("Fred") was married to Flaire Mae Albee ("Flaire Mae"). Fred died testate, but his will made no mention of his wife. Instead, Fred's will devised his estate to his prior wife, Maxine Kennedy ("Maxine"), to whom he was married at the time that he executed his will. The will provided that if Maxine should predecease Fred, then his estate was to be distributed to his daughter and grandchildren ("the Albee Heirs"). Fred and Maxine divorced in 1992. Fred died in December 1994, and Maxine died the following year.

In July 2010, Moore, on behalf of the Albee Heirs, petitioned for the summary administration of Fred's estate, which the probate court granted. By this time, Flaire Mae had also died. Flaire Mae's estate, believing that it was entitled to one-half of the assets of Fred's estate by virtue of Flaire Mae being Fred's pretermitted spouse, sought to reopen the summary administration proceedings. After being unsuccessful in that endeavor, Flaire Mae's estate separately brought a civil action in circuit court against the Albee Heirs and attorney Moore to essentially recover one-half of Fred's estate. Moore moved to dismiss this complaint based on the defense of res judicata, arguing that Flaire Mae's estate's claim, if any, in Fred's estate had been determined adversely to Flaire Mae in a separate proceeding. The trial court denied the motion in an unelaborated order.

Pertinent to the present appeal, in September 2013, Moore and the Albee Heirs filed a one-sentence motion for attorney's fees under section 57.105, Florida Statutes, against the personal representative of Flaire Mae's estate and her counsel, Michael Farrar, asserting that they "knew or reasonably should have known that this action is barred by res judicata and collateral estoppel." Approximately two years later, the Albee Heirs and Moore moved for a final summary judgment, raising substantive grounds that are not pertinent to the instant appeal as to why Flaire Mae's estate was not entitled to Flaire Mae's pretermitted spousal share in Fred's estate. The Albee Heirs and Moore also asserted in their motion that the action filed against them by Flaire Mae's estate was barred by collateral estoppel and res judicata. The trial court granted final summary judgment in favor of the Albee Heirs and Moore on the substantive grounds argued and made no mention in the final judgment regarding the collateral estoppel or res judicata defenses raised. On Flaire Mae's estate's appeal and the Albee Heirs' and Moore's cross-appeal, this court affirmed the final summary judgment without opinion. Estate of Albee v. Coffey , 222 So.3d 1228 (Fla. 5th DCA 2017).

After the mandate issued on the appeal, the trial court held a hearing on the aforementioned section 57.105 motion for attorney's fees. In denying the motion, the court concluded in its order that it "cannot find the matters presented by the [Flaire Mae Estate] were so devoid of a justiciable issue of either fact or law to be completely untenable." This appeal followed.

"A trial court's order denying a request for attorney's fees pursuant to section 57.105 is reviewed for an abuse of discretion." Infiniti Emp't Sols., Inc. v. MS Liquidators of Ariz., LLC , 204 So.3d 550, 553 (Fla. 5th DCA 2016) (citing Ferere v. Shure , 65 So.3d 1141, 1144 (Fla. 4th DCA 2011) ). " 'However, to the extent a trial court's order on attorney's fees is based on its interpretation of the law,' an appellate court employs the de novo standard of review." Id. (quoting Ferere , 65 So.3d at 1144 ).

Section 57.105, Florida Statutes, provides in pertinent part:

(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

Moore argues that the trial court erred because it denied the motion based on a standard no longer appropriate in determining a party's entitlement to attorney's fees under section 57.105. As we have recently reiterated, "[p]rior to 1999, section 57.105 authorized an award of attorney's fees only when there was a complete absence of a justiciable issue of either law or fact raised by the losing party." Infiniti Emp't Sols. Inc. , 204 So.3d at 553 (quoting Mullins v. Kennelly , 847 So.2d 1151, 1154 (Fla. 5th DCA 2003) ). Here, as Moore correctly observes, the trial court appears to have utilized this pre-1999 standard of a "complete absence of a justiciable issue" instead of applying the "knew or should have known" standard now applicable.

Typically, we would reverse and remand to the trial court for reconsideration of the issue of attorney's fees under the present version of section 57.105. See Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture , 858 So.2d 1232, 1233 (Fla. 5th DCA 2003) (remanding for trial court to reconsider attorney's fees under the post-1999 version of section 57.105 after the trial court, in denying the motion, found that there was "no justiciable issue, either in fact or law"). However, based on the circumstances and record before us, we affirm the order on appeal under the tipsy coachman rule. See Robertson v. State , 829 So.2d 901, 906 (Fla. 2002) (stating that the " 'tipsy coachman' doctrine[ ] allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record,' " (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644-45 (Fla. 1999) ) ); Walker v. Cash Register Auto Ins. of Leon Cty., Inc. , 946 So.2d 66, 71 (Fla. 1st DCA 2006) (affirming an award of attorney's fees under section 57.105(1) based on the tipsy coachman rule).

Moore's motion for section 57.105 attorney's fees specifically placed Flaire Mae's estate and its attorney on notice that Moore contended that the estate's entire action was "barred by res judicata and collateral estoppel." At that point, section 57.105(4) provided Flaire Mae's estate and its counsel with a twenty-one-day "safe harbor" period to first evaluate Moore's argument that they either knew or should know that the estate's claim against Fred's estate would be unsuccessful based on one or both of these defenses and to thereafter dismiss its complaint and thus avoid attorney's fees under this statute. After Flaire Mae's estate did not voluntarily dismiss its complaint within the twenty-one days, Moore and the Albee Heirs moved for final summary judgment, arguing that Flaire Mae's estate was not substantively entitled to the pretermitted spousal share and that its claim was also barred by res judicata and collateral estoppel. As previously discussed, the trial court entered final summary judgment in favor of the Albee Heirs and Moore based on the substantive ground argued and not on the viability or merits of either the res judicata or collateral estoppel defenses. Because the record clearly shows that Moore and the Albee Heirs did not prevail against Flaire Mae's estate on either of their two defenses raised in their motion for attorney's fees, they would not be entitled to an award of section 57.105 attorney's fees. Thus, the trial court properly denied Moore's motion for attorney's fees, but not for the reasons stated in its order.

AFFIRMED.

PALMER and WALLIS, JJ., concur.

      Section 732.301, Florida Statutes (2016), "Pretermitted spouse," states:
      When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
      (1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
      (2) The spouse is provided for in the will; or
      (3) The will discloses an intention not to make provision for the spouse.
      The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.
      The language of this statute is the same as it was in 1994 when Fred Albee died.

      Subsequent to the issuance of our mandate in the appeal of the final summary judgment, Moore filed a First Amended Motion for Section 57.105 Attorney's Fees, in which he raised additional grounds for sanctions. We have not considered that motion for two reasons. First, there is no indication that Moore complied with the twenty-one-day "safe harbor" provision of section 57.105(4). See Lago v. Kame by Design, LLC , 120 So.3d 73, 75 (Fla. 4th DCA 2013) ("[I]f a party files a subsequent or amended motion for sanctions under section 57.105 and raises an argument that was not raised in the original motion for section 57.105 sanctions, the subsequent motion must independently comply with the twenty-one-day 'safe harbor' provision of section 57.105(4)."). Second, the primary purpose of a section 57.105 motion filed by a party in the trial court is to provide the opposing party with a final opportunity to withdraw a claim or defense in the trial court litigation and avoid being exposed to an attorney's fee sanction. That purpose is not served when, as here, the motion is filed after the final judgment is entered and the appeal of that judgment is concluded.


author: Per Curiam.

text:
    Steven Russell STATHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1070
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied April 3, 2018
    Andy Thomas, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Steven Statham was convicted of burglary of a dwelling. The court found he was a habitual felony offender and sentenced him to twenty years' imprisonment. Statham raises a single issue on appeal: he contends the court erred by overruling his objection to a portion of the State's closing argument.

The only sign of forced entry into the burglarized home was a broken window. There was blood on the broken window, and there was more blood on the home's front door. DNA tests matched the blood to Statham. At trial, a DNA expert testified that in a group of 20 quadrillion people, she would expect to find only one person with the DNA profile that matched Statham's blood and the blood at the scene. On cross-examination, the expert acknowledged that the 20-quadrillion statistic referred to unrelated individuals and that she could not rule out the possibility that the DNA belonged to one of Statham's male relatives.

In closing argument, the prosecutor argued that the DNA evidence was conclusive. Addressing the cross-examination, the prosecutor noted that there was no evidence that Statham had an identical twin-or any brother-or that his father was living. Statham objected, arguing that this was improper burden shifting. The court overruled the objection, and Statham now pursues the same argument here. We review for an abuse of discretion. Braddy v. State , 111 So.3d 810, 837 (Fla. 2012).

It is the State's burden to prove all elements of a crime, Cribbs v. State , 111 So.3d 298, 300 (Fla. 1st DCA 2013), and "it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt," Gore v. State , 719 So.2d 1197, 1200 (Fla. 1998). The issue here is whether the State's closing argument presented this type of error.

Statham's argument is similar to the argument rejected in Guzman v. State , 214 So.3d 625, 634 (Fla. 2017). In Guzman , the defense counsel suggested during opening statements that DNA analysis is performed by "imperfect human beings." Later, when cross-examining the State's DNA experts, counsel asked whether mistakes or sample contamination could have affected their conclusions. Id. The State commented on the weakness of this defense during closing arguments, arguing that no evidence supported it. Id. In the supreme court, the defendant maintained-as Statham does here-that this argument improperly shifted the burden. But the supreme court found these comments "did not invite the jury to convict Guzman for some reason other than that the State proved its case beyond a reasonable doubt." Id. at 636. Like in Guzman , the State's comments responded to defense arguments that lacked evidentiary support. No witness testified that Statham had male relatives who could have left matching DNA at the crime scene. Rather than suggest Statham needed to put on exculpatory evidence, the comments explained why there was no reason to doubt the evidence that had already been presented. See Robards v. State , 112 So.3d 1256, 1270 (Fla. 2013) (rejecting burden-shifting argument, concluding "that the prosecutor was responding to argument proposed by the defense" and explaining that "[c]lose examination of the entire closing argument demonstrates that these comments addressed theories that were raised during the defense cross-examination of the State's witnesses and during closing argument but were never contradicted with evidence").

AFFIRMED .

Wolf, Rowe, and Winsor, JJ., concur.


author: Levine, J.

text:
    Scott B. MEYROWITZ, Appellant, v. ANDREW M. SCHWARTZ, P.A., Appellee.
    No. 4D17-1983
    District Court of Appeal of Florida, Fourth District.
    February 28, 2018
    Michael D. Moccia of Law Office of Michael D. Moccia, P.A., Boca Raton, for appellant.
    Andrew M. Schwartz of Andrew M. Schwartz, P.A., Boca Raton, for appellee.
   Levine, J.

Scott Meyrowitz appeals a final judgment awarding attorney's fees in favor of Andrew M. Schwartz, P.A. ("the firm") pursuant to the offer of judgment rule. Meyrowitz argues that the proposal for settlement was untimely under 1.442(b). We agree and therefore reverse.

The firm filed an action against Meyrowitz for $49,121.07 in unpaid legal bills. The clerk entered a default against Meyrowitz for failure to file any pleading. On December 1, 2016, Judge Colin entered an order setting the case for a non-jury trial on the eight week trial calendar beginning March 20 and ending May 12, 2017. On March 1, Judge Garrison entered an order setting the case for non-jury trial before him on May 2. The order stated that the case "came before the Court upon referral by Judge David French regarding Plaintiff's Notice for Trial." The order directed that any motions prior to trial be set before Judge French.

On March 3, the firm served a proposal for settlement on Meyrowitz, offering to settle the case for $38,500. Meyrowitz did not accept the proposal. After trial, Judge Garrison entered a judgment in favor of the firm for $49,121.07, the amount sought in the complaint. Based on the judgment, the firm filed a motion for attorney's fees pursuant to its proposal for settlement. Meyrowitz objected on the grounds that the proposal for settlement was not timely served pursuant to rule 1.442(b). The trial court found that the service of the motion complied with rule 1.442 and entered an order awarding the firm $24,825 in attorney's fees.

On appeal, Meyrowitz argues that the proposal for settlement was not timely because it was served later than forty-five days before the first day of the docket on which the case was set for trial. The firm responds that affirmance is warranted because the proposal was served two days after an order removing the case from Judge French's trial calendar and reassigning it to Judge Garrison for a special set trial.

A de novo standard of review applies in determining whether a proposal for settlement complies with rule 1.442. Regions Bank v. Rhodes , 126 So.3d 1259, 1260 (Fla. 4th DCA 2013).

Florida Rule of Civil Procedure 1.442(b) states that "[n]o proposal [for settlement] shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier." Rule 1.442 must be strictly construed because it is punitive in nature in that it imposes sanctions upon the losing party and is in derogation of the common law. Schussel v. Ladd Hairdressers, Inc. , 736 So.2d 776, 778 (Fla. 4th DCA 1999). Additionally, the rule must be construed in accordance with the principles of statutory construction. R.T.G. Furniture Corp. v. Coates , 93 So.3d 1151, 1153 (Fla. 4th DCA 2012). As this court has explained:

When the language at issue is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. Rather, the court must give unambiguous language its plain and ordinary meaning, unless it leads to a result that is either unreasonable or clearly contrary to legislative intent.

Id. (citation omitted).

As stated above, rule 1.442 requires service more than "45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier ." (emphasis added). In this case, forty-five days before the first day of the docket was earlier than forty-five days before the date set for trial. Forty-five days before the May 2 trial was March 18. However, forty-five days before the first day of the March 20 docket was February 3. Because February 3 is the earlier and thus the operative date, the March 3 proposal was untimely because it was served after this date.

The firm argues that Liguori v. Daly , 756 So.2d 268 (Fla. 4th DCA 2000), supports the trial court's ruling. In Liguori , the court set the case for trial on a six-week docket. The case was not called for trial during the first five weeks, and parties had been excused from the final week (April 6 through 13) by court order. Appellee filed a proposal for settlement during the last week on April 7. Subsequently, trial was reset on other dockets, and the case went to trial on August 24. This court recognized that "an offer of judgment is untimely, and, thus, unenforceable, when it is made less than forty-five days before the first day of the docket on which the case is initially set for trial, regardless of when the case actually goes to trial." Id. at 269. Nevertheless, this court found the proposal timely and enforceable because it was "directed to the next, as yet, unscheduled docket." Id.

Citing Liguori , the court in Progressive Casualty Insurance Co. v. Radiology & Imaging Center of South Florida, Inc. , 761 So.2d 399, 400 (Fla. 3d DCA 2000), stated:

If an Offer of Judgment is made at a point in time in which it appears, from the facts of the individual case, that the Offer of Judgment is not directed to the current trial period, but, rather, is intended for the next, as yet, unscheduled trial period, then in that situation, and in that situation only, the Offer of Judgment is not a nullity and is considered timely. In order to rely upon this exception, there must be some evidence in the record that both parties know that the case will not be tried during the current trial period and that the Offer of Judgment is made in anticipation of the next, as yet, unscheduled trial period.

The Progressive Casualty court concluded that "[t]his is a very limited exception which must be strictly applied to these narrow circumstances." Id.

Contrary to the firm's assertion, the exception carved out in Liguori does not apply in this case. Unlike in Liguori , here the case went to trial during the initially set docket. The case was set for trial on the eight-week trial calendar beginning March 20 and ending May 12. The case actually went to trial on May 2.

Further, in Liguori the proposal was served during the last week of the docket when the case could not have gone to trial because the parties had been previously excused. Thus, the proposal was made in anticipation of the "next, as yet, unscheduled docket." Liguori , 756 So.2d at 269. Here, in contrast, the proposal was made two days after the order which scheduled trial for a date during the originally scheduled docket. Thus, the proposal was "directed to the current trial period," not the "next, as yet, unscheduled trial period." Progressive Cas. , 761 So.2d at 400 (citing Liguori , 756 So.2d at 269 ).

The fact that the case was ultimately heard by Judge Garrison instead of Judge French does not render the proposal for settlement timely. See Liguori , 756 So.2d at 269 (stating that a continuance cannot "breathe[ ] life back into an otherwise untimely offer of judgment") (quoting Schussel , 736 So.2d at 778 ). The order setting the case for the trial docket did not specify which judge would be presiding. Further, rule 1.442(b) speaks to dockets generally and does not address dockets before specific judges. The rule is concerned with the timing of a proposal for settlement, not with the specific judge who ultimately presides over a trial. Which particular judge ultimately presides over the trial does not have any bearing on the timeliness of a proposal.

In sum, the proposal for settlement was untimely. The case was scheduled for trial during an eight-week calendar, and the trial occurred during that calendar. Although the proposal was served more than forty-five days before the date set for trial, it was not served more than forty-five days before the first date of the docket as required under rule 1.442(b). As such, we reverse.

Reversed.

Ciklin and Klingensmith, JJ., concur.


text:
    Chris FOSTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3103
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    Chris Foster, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Chris Foster appeals the summary denial of Grounds One, Six, Seven, Eight, Ten, Eleven, and Twelve of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. After careful consideration, we affirm the summary denial of Grounds One, Seven, Eight, Ten, and Twelve without further discussion.

In Grounds Six and Eleven, Foster alleges that ineffective assistance of counsel prejudiced him and claims that he pled guilty to Count III, possession of a firearm by a convicted felon, based on the advice of counsel, despite the fact that the State had filed an amended information which did not include that charge. The State asserted that its intention was to simply sever that charge for a later trial; however, amending an information by deleting a charge has the same legal effect as entering a nolle prosequi. See State v. Belton , 468 So.2d 495, 497 (Fla. 5th DCA 1985). Foster claims that if counsel had advised him that the State dropped Count III, he would not have stopped his trial nor pled guilty to that count.

In the plea colloquy, Foster acknowledges that he is pleading guilty to Count III; however, that does not sufficiently address what advice counsel provided and whether Foster relied on that advice to his detriment. Accordingly, we find that the documents attached to the order summarily denying Grounds Six and Eleven do not conclusively refute those grounds. We remand for the postconviction court to either attach records that conclusively refute those grounds or conduct an evidentiary hearing regarding Grounds Six and Eleven.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PALMER, EVANDER, and EDWARDS, JJ., concur.


text:
    Eric Damont DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-165
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018 Rehearing Denied April 5, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Eric Damont Davis appeals the judgment and sentence entered against him after he was convicted by a jury of aggravated battery with a firearm. He argues the trial court erred by a) conducting an insufficient competency hearing; b) failing to make an independent competency determination; and c) failing to enter a written order on competency. We disagree with Davis' assertion that the trial court conducted an insufficient hearing and failed to make an independent determination of his competency. See Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014) (finding trial court may decide issue of competency based on written reports alone but must enter written order if defendant is found competent to proceed). Nevertheless, because the court minutes signed by the trial judge reflecting this determination do not constitute an order, we remand for entry of a written order finding Davis competent to proceed. See Fla. R. App. P. 9.020(f) (defining order as "[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries"); see also State v. Wagner, 863 So.2d 1224, 1228 (Fla. 2004) ("Because the signed court minutes form was not an order within the definition of the Florida Rules of Appellate Procedure, the act of filing it with the court clerk did not amount to the rendition of an order."); Carroll v. State, 157 So.3d 385, 385 (Fla. 2d DCA 2015) ("Even when the trial court has previously made a written finding of competency on a signed 'minutes' form, this still does not satisfy the requirement to enter an order as set forth by the rules of criminal procedure."). In all other respects, we affirm.

AFFIRMED in part; REMANDED with instructions.

BERGER, EDWARDS and EISNAUGLE, JJ., concur.


author: Warner, J.

text:
    Leonard Alvin JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-590
    District Court of Appeal of Florida, Fourth District.
    March 7, 2018
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant was convicted of multiple charges including trespass of a structure, petit theft, and fraudulent use of a credit card in violation of section 817.61, Florida Statutes (2016). On appeal he argues only that the trial court erred in denying his motion for judgment of acquittal as to the fraudulent use of a credit card. He contends that in using the stolen credit card he never represented that he was authorized to use the card. Because the state had charged him alternatively with using the card or fraudulently representing he was the holder of the card, and the evidence undisputedly showed that he used the stolen card, the court did not err in submitting the case to the jury. We therefore affirm.

The victim whose credit card was stolen was on a retreat at a monastery when she received an alert that her debit card had been used to charge something. The victim testified that she did not give anyone permission to use her card. Knowing that she had not made any charges, she discovered that her entire purse was missing. When informed of the theft, an employee of the monastery described an individual on the premises wearing a construction vest and acting suspiciously. The individual attempted to hide when he saw the employee. The employee later identified appellant's picture in a photo lineup. After an officer arrived and commenced an investigation, he went to a McDonald's where the debit card had been used twice, according to the credit card records. Pulling surveillance videos from the store for the time during which the transaction occurred, the officer developed a description and sent out a flyer, with an image from the video, of an individual wearing a yellow vest. Ten days later, the officer came into contact with the appellant, who was wearing a yellow vest. Appellant admitted that he was the person in the surveillance video.

A McDonald's manager testified that appellant had come into the McDonald's twice on the same day and made purchases with the victim's credit cards. The purchaser swiped his card, and the register system generated a receipt. The time is recorded on the receipt. The receipts, however, were not required to be, and were not, signed by the appellant.

After presentation of the state's case, the appellant moved for judgment of acquittal, contending that the state had not proved he had represented himself as the victim when he used the card. The trial court denied the motion, and appellant was found guilty and convicted of the various charges, including fraudulent use of the credit card. He appeals.

Section 817.61, Florida Statutes (2016), makes it a crime to fraudulently use a credit card. The crime may be committed in alternative ways, as set forth in the statute:

Fraudulent use of credit cards-A person who, with intent to defraud ... a person or organization providing money, goods, services, or anything else of value ... uses , for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part ..., or who obtains money, goods, services, or anything else of value by representing, without the consent of the cardholder, that he or she is the holder of a specified card ... violates this section. A person who, in any 6-month period, uses a credit card in violation of this section two or fewer times, or obtains money, goods, services, or anything else in violation of this section the value of which is less than $100, is subject to the penalties set forth in s. 817.67(1). A person who, in any 6-month period, uses a credit card in violation of this section more than two times, or obtains money, goods, services, or anything else in violation of this section the value of which is $100 or more, is subject to the penalties set forth in s. 817.67(2) (emphasis added).

As he argued in the trial court, appellant maintains the state failed to prove that he had represented that he was the owner of the credit card he used, and thus the state had failed to prove the essential elements of a violation of section 817.61. He relies on A.M. v. State , 794 So.2d 645 (Fla. 2d DCA 2001). A.M. , however, is distinguishable. There, the State had filed a petition for delinquency against A.M. alleging:

with intent to defraud the issuer or a person or organization providing money, goods, services or anything else of value, use a credit card more than two (2) times in a six (6) month period or obtained money, goods, services or anything else of a value of greater than One Hundred Dollars ($100.00) by represent ing, without the consent of the cardholder, that he is the holder of the card so used, contrary to Section 817.61, Florida Statutes....

Id. (emphasis added). When A.M. used her mother's credit card without her permission, she signed for her purchases in her own name and simply told the merchant that the card was her mother's. Thus, because she never represented that she was the owner of the card and told the merchant that the card was her mother's, the state failed to prove the charge it made.

In contrast, the information in this case charged the appellant in the alternative:

COUNT 3: LEONARD ALVIN JONES ... did knowingly use a credit card that was obtained or retained unlawfully or knowing that the credit card was forged with the intent to defraud anyone who provided money, goods, services, or anything else of value or did obtain money, goods, property, services, or anything else of value by representing that he was the holder of a card without the authority of [the victim] ... contrary to Florida Statutes 817.61 and 817.67(1).

(emphasis added). The state clearly proved that appellant used a credit card unlawfully. Therefore, the state did prove the essential elements of the crime, and the court correctly denied the motion for judgment of acquittal on this charge.

Even as to the alternative alleged in the information of fraudulently representing that appellant was the holder of the card without the authority of the victim, the state proved its case. Appellant swiped the card, and the victim testified that she did not give anyone permission to use her card. Although the merchant did not ask and no one checked as to whether he was the owner of the card or had permission to use it, we think in this day and age of credit card transactions which do not require signatures above a certain amount, the act of swiping constitutes a representation that the swiper had authority to use the card. As the Maryland appellate court observed in Clark v. State , 188 Md.App. 185, 981 A.2d 710, 722 (Md. Ct. Spec. App. 2009), "[o]rdinarily, when a person tenders a stolen credit card to a merchant as payment for goods or services, the person so presenting implicitly represents that he or she is the cardholder." We agree with this statement.

For the foregoing reasons, we affirm the convictions and sentences.

Affirmed.

May and Damoorgian, JJ., concur.


author: Rowe, J.

text:
    Richard Kerry ADKISON and Kerry Adkison, P. A., Appellants, v. Margaret MOREY, as personal representative of the estate of Charlotte Laughlin, Appellee.
    No. 1D17-2871
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Kerry Adkison, Chipley, for Appellants.
    Candy L. Messersmith of Rumberger Kirk & Caldwell, Orlando; and Nicole Smith of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Appellee.
   Rowe, J.

Richard Kerry Adkison and Kerry Adkison, P.A. appeal a partial final order dismissing their third-party complaint against Regions Bank. Because they not only failed to preserve their arguments for appeal but also invited the trial court to rule as it did, we affirm.

I.

After Charlotte Laughlin died in 2006, Margaret Morey, the personal representative of Laughlin's estate, retained the services of Adkison and his firm to represent Morey in the probate of the estate. Five years after retaining their services, Morey discovered that over $219,000 from the estate's trust account had been misappropriated and used to pay bills and operational expenses of the firm. Morey sued Adkison and the firm for civil theft, conversion, legal malpractice, and breach of fiduciary duty. Adkison and the firm denied the allegations raised in Morey's suit, and in their amended answer to the complaint, included what was styled as a "cross-claim" against Regions Bank. They alleged that the bank, which serviced both the trust account and the firm's operating account, breached its fiduciary duty to the firm and was negligent when it allowed one of the firm's employees and the employee's former spouse to withdraw money from the estate's trust account, as well as the firm's operating account.

Four years later, Adkison and the firm moved to amend their "cross-claim" against the bank. Regions sought dismissal of the "cross-claim," which it contended was properly styled as a third-party complaint. Regions asserted it was not a proper third-party defendant to the action because the bank's presence was not necessary for the resolution of Morey's claims against Adkison and his firm. The trial court denied the bank's motion to dismiss, but granted the motion to amend, determining that the "cross-claim" should proceed as a third-party action against Regions.

Adkison and the firm then moved to amend the third-party complaint for a second time to include a number of new claims against the bank. The trial court allowed the amendment, and Regions again moved for dismissal. Regions argued that Adkison and the firm could not state a claim for contribution, and without any valid claim for indemnification, contribution, or subrogation, the third-party complaint should be dismissed with prejudice. After a hearing, the trial court dismissed the second amended third-party complaint without prejudice for Adkison and the firm to raise their claims in a separate action. This timely appeal follows.

II.

Adkison and his firm appeal the trial court's order, arguing that the court erred in dismissing their claims, rather than severing the claims. They assert that the statute of limitations on their claims against Regions ran in 2015, and unless the statute of limitations were tolled on a legal or equitable basis, a subsequent action against Regions may be subject to dismissal on statute of limitations grounds. But Adkison and the firm did not make this argument in the trial court. See Anheuser-Busch Cos., Inc. v. Staples , 125 So.3d 309, 312 (Fla. 1st DCA 2013) (noting that an appellate court is "not at liberty to address issues that were not raised by the parties"). Nor did they argue that the third-party claims should be severed, rather than dismissed. Nor did they file a motion for rehearing to present this issue to the trial court before raising it on direct appeal. See Pensacola Beach Pier, Inc. v. King , 66 So.3d 321, 324 (Fla. 1st DCA 2011) (holding that an appellant failed to preserve an issue for review when the trial court's error appeared for the first time on the face of the order on appeal and appellants choose not to file a motion for rehearing).

It is not our function "to entertain for the first time on appeal, issues which the complaining party could have, and should have, but did not, present to the trial court." Florida Emergency Physicians-Kang and Assocs., M.D., P.A. v. Parker , 800 So.2d 631, 636 (Fla. 5th DCA 2001) (citing Abrams v. Paul , 453 So.2d 826, 827 (Fla. 1st DCA 1984) ). Because the argument made on appeal was never presented to the trial court, it is waived. See Sunset Harbour Condo. Ass'n v. Robbins , 914 So.2d 925, 928 (Fla. 2005) ("As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.").

III.

Further, in addition to failing to preserve the argument that their claims against Regions should have been severed rather than dismissed with prejudice, Adkison and the firm invited the error of which they now complain. During the hearing on Region's motion to dismiss, they suggested to the trial court that their claims against Regions could proceed in a separate action if the dismissal was without prejudice, affirmatively stating that "a dismissal with prejudice ... would bar this separate action." And they suggested to the court that if the action proceeded without Regions as a party, Adkison and the firm could "still seek contribution from Regions by filing a separate action." Thus, Adkison and the firm invited the trial court to rule as it did. Muina v. Canning , 717 So.2d 550, 553-54 (Fla. 1st DCA 1998) ("Under the invited error rule, a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she invited the court to make.").

Accordingly, the trial court's order dismissing the third-party complaint against Regions is AFFIRMED.

Wetherell and Jay, JJ., concur.


text:
    Kirby KINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4539
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Benjamin R. Kelley, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal from his conviction for sexual battery on a person physically helpless to resist, Kirby Kines asserts that fundamental error occurred when the trial court admitted a redacted version of Kines' recorded interview with Detective Monroe because the jury heard Monroe express the opinion that Kines was guilty and accuse Kines of lying when Kines denied the victim's accusations. We disagree and affirm.

At trial, defense counsel announced that he had no objection to the state introducing a redacted version of the recorded interview, during which the following exchange occurred between Detective Monroe and Kines:

THE DETECTIVE: .... Let me explain to you how this works. Okay. When someone alleges that they've been sexually assaulted, okay, we do a Sexual Assault Kit on them. And basically what that entails is DNA swabs will be rubbed basically all over different areas of her body. And anyone that had sex with her, it's gonna show up. Okay. So when I'm talking to you here, I want you to tell me the truth. I'm pretty confident this is what happened. All right.
I think that Spencer was in there too and I think Spencer had sex with her too . And I don't know-I wasn't there. Okay. I wasn't there. She said: Let's do it. Let's have sex. She's into it and she doesn't, you know-I just don't want to (unintelligible) because I wasn't there. You see what I'm saying? If it happened and you seem to think at the time: Hey, look. She's into it. She's okay with it and she's not pushing it-not pushing me away or telling me no or maybe she even wants to do it or maybe she's flirting a little bit, maybe (unintelligible)-a lot of times guys would get mixed signals when you go to the party (unintelligible) whatever. And then if you've been drinking, taking a couple shots too, I think you agree too (unintelligible) the whole time you're thinking with the wrong head.
Like I said, I want you to start over and tell me the truth. All right. Man-to-man. In the terms. Tell me the truth of what happened. And if you and Spencer talked about it afterwards: Hey, this happened. Or hey, crap, she's alleging this stuff, I'm going to find all that stuff out too, so I just really want you to be truthful because I need to know what your involvement is, okay.
She said that you were really-you were nice to her and you tried to help her out, but I still think that you had sex with her.
THE DEFENDANT: I did not.
THE DETECTIVE: Okay so you didn't have sex with her at all.
THE DEFENDANT: No, sir.
THE DETECTIVE: Okay. So that's what you're gonna stick with. Because I'm going find out probably if you did. I mean, I'm going to find-if you did, I'm going to find out. I don't want to-I don't want you to bullshit me. One chance to tell me the truth. And that's where we're at. Final words.
THE DEFENDANT: I did not.

(Emphasis added). After Kines consented to a buccal swab, Monroe stated: "So if you're telling the truth, perfect. Great. (Unintelligible). All right. But if you did have it, it's gonna have your DNA, it's gonna be a match, and then you're gonna have to come back and meet me and say, well: I wasn't a hundred percent truthful the first time." Kines again denied having sex with the victim, but admitted that his sperm was probably on his bedsheets and that there might be DNA on the victim's body because she slept on those sheets.

On appeal, Kines claims that the admission of the redacted interview constituted fundamental error because the jury heard Detective Monroe express the opinion that Kines was guilty and accuse Kines of lying when Kines denied the victim's accusations. We disagree. First, there was no objection to the admission of the interview, and nothing said by Detective Monroe compared with the firm statements of opinion, assertions of guilt, and prejudicial statements condemned in Jackson v. State , 107 So.3d 328 (Fla. 2012). Detective Monroe never stated his personal opinion that Kines was guilty of raping the victim. Although Detective Monroe provided his belief that Kines and his friend, Spencer Andres, had sex with the victim, he did so after reviewing the victim's statement and then followed that with the comment that it might have been consensual. Furthermore, Detective Monroe's questioning suggested that he did not believe Kines when he denied having sex with the victim, but Monroe never expressly accused Kines of lying. Instead, he confronted Kines with the fact that a sexual assault examination would be performed on the victim and cautioned Kines that his denial might come back to haunt him if his DNA was found on the victim.

In response, Kines conceded that his DNA might be on the victim because she had been in his bed. Although some of Monroe's statements might have been objectionable, they were an isolated part of the trial and were small in comparison to evidence that Kines' DNA was found on swabs taken from the victim, which corroborated the testimony of the victim and Spencer Andres. Accordingly, any error did not reach down into the validity of the trial to the extent that a guilty verdict could not have been obtained without assistance of the alleged error. See Sheppard v. State , 151 So.3d 1154, 1165-68 (Fla. 2014) (holding that admission of the murder defendant's videotaped statement did not amount to fundamental error, even though some of the detective's comments were improper statements of belief that the defendant was lying and that he was either the shooter or driver, where the admission of the videotape did not reach down into the validity of the trial itself to the extent that a guilty verdict could not have been obtained without assistance of the videotape).

Moreover, we agree with the state that any claim of fundamental error was waived because defense counsel invited error when he announced that he had no objection to the admission of the redacted interview and when he referred to the interview during his closing argument. See Louidor v. State , 162 So.3d 305, 311 (Fla. 3d DCA 2015) (holding that any claim of fundamental error arising from the admission of a redacted interview-during which police officers gave opinions as to the murder defendant's guilt-was waived where defense counsel invited error by stipulating to admission and playback of the video and affirmatively relying on the video throughout trial). It appears that defense counsel may have made a strategic decision to include the interview in order to demonstrate that Kines' refusal to confess demonstrated that only a truly innocent person could withstand such an interrogation. Id. at 312.

AFFIRMED .

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Justin Maurice JONES, Former Husband, Appellant, v. Janie Nicole JONES, Former Wife, Appellee.
    No. 1D16-3736
    District Court of Appeal of Florida, First District.
    March 8, 2018
    E. Jane Brehany, Pensacola, for Appellant.
    No appearance for Appellee.
   Per Curiam.

In this appeal of a final judgment of dissolution of marriage, Appellant Justin Jones, Former Husband, asks this Court to review four issues regarding timesharing, retroactive child support, attorney's fees, and equitable distribution. We affirm as to the first three issues without comment, but reverse and remand as to the fourth issue.

During the couple's dissolution proceedings, Former Husband admitted to taking $17,000 (with a $3,000 penalty totaling $20,000) from a Thrift Savings Plan (TSP) account that he had through his employer, the United States Air Force, while the parties were still married but living separately. The amount remaining in the account after his withdrawals was $7,519. He claimed the withdrawn money was spent to avoid financial hardship and that he used it to pay marital bills and debts as well as living expenses during the dissolution proceeding. He explained that withdrawing the money required Former Wife's signature, but that he executed a waiver to avoid getting her signature because waivers are used in situations "where you cannot get an actual signature from the spouse ... such as restraining orders, separations." Former Wife claimed that she had no knowledge of the withdrawals and that she received none of the money.

In the final judgment of dissolution, the trial court valued the TSP at $24,531.52 (valued on the date closest to the first filing of the dissolution petition) and found that "[t]he husband withdrew money from the thrift savings plan and the wife is owed her share in the amount of $10,315.76. The husband shall pay this debt in the amount of $500 per month beginning December 1, 2016 directly to the wife."

Former Husband argues on appeal, as he did below, that the evidence established that he withdrew $20,000 from the TSP account to pay marital expenses and that it was error for the trial court to include an asset in the equitable distribution scheme that was diminished or dissipated during the dissolution proceedings unless misconduct on his part had been demonstrated. He argues that there was no evidence presented as to misconduct on his part.

A trial court's ruling on equitable distribution is reviewed for an abuse of discretion. Winder v. Winder , 152 So.3d 836, 838 (Fla. 1st DCA 2014). Section 61.075(3), Florida Statutes (2017), requires that "any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)." Those enumerated factors include spousal contribution, economic circumstances, duration of the marriage, and interruption of personal career or education by either party, among many others. § 61.075(1), Fla. Stat. Furthermore, section 61.075(3)(d) requires a trial court, in establishing an equitable distribution scheme, to make "[a]ny other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities."

As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. In that case, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.

Winder , 152 So.3d at 838-39 (marks and citations omitted) (reversing final order because "[t]he uncontradicted evidence shows that the dissipated funds were used to pay marital expenses while the dissolution was pending, including temporary support for the Wife, and because there is no evidence that the Husband engaged in misconduct in using these funds, the trial court abused its discretion in including these dissipated funds in the equitable distribution scheme"); see also Walker v. Walker , 85 So.3d 553, 555 (Fla. 1st DCA 2012) (finding that "the record is devoid of any evidence of misconduct by the Former Husband or his intentional destruction of marital assets"); Annas v. Annas , 29 So.3d 1209, 1210 (Fla. 1st DCA 2010) ("Because there is nothing in the judgment to suggest that the former wife used the money she withdrew from the parties' bank account for other than reasonable living expenses pending resolution of her petition for dissolution of the marriage, the trial court erred when it assigned that money to her as a part of the scheme of equitable distribution.").

In this case, Former Husband liquidated the TSP account to pay expenses to, according to his testimony, satisfy marital debt and to continue paying bills for himself and his children during the dissolution proceedings. Because the asset was dissipated, the trial court was required to make a specific finding of misconduct to equitably distribute it, which was not done. See id. (noting that "to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct") (citation omitted). Because the record before this Court contains no evidence upon which the trial court could have concluded that Former Husband's withdrawal of the funds was misconduct, we reverse the trial court's equitable distribution order and remand the case to readdress the issue of equitable distribution.

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


author: SALARIO, Judge.

text:
    William CRESCENZO, Appellant, v. Irene SIMPSON, as personal representative of the Estate of Herminia M. Quinones, deceased, Appellee.
    Case No. 2D16-5649
    District Court of Appeal of Florida, Second District.
    Opinion filed March 9, 2018
    Ann M. Allison of Allison Law Group, Temple Terrace, for Appellant.
    Rory B. Weiner of Rory B. Weiner, P.A., Brandon, for Appellee.
   SALARIO, Judge.

William Crescenzo appeals from an order of the probate court that admitted the will of Herminia M. Quinones to probate. He argues that before it could admit the will, the probate court had to decide a challenge to the will's validity that was contained in an answer he filed. Ms. Quinones' estate, however, says that because Mr. Crescenzo's challenge was not contained in a caveat under Florida Probate Rule 5.260, the court did not have to decide that challenge before admitting the will to probate. We hold that Mr. Crescenzo's answer was the functional equivalent of a caveat and reverse.

Ms. Quinones passed away on August 12, 2011. About five years later, Irene Simpson filed a petition for administration of Ms. Quinones' estate and sought to appoint herself as personal representative. The petition stated that the sole asset of the estate was a parcel of real property in Hillsborough County. It did not indicate that any other person had an interest in that property. The petition stated that Ms. Quinones had a will, identified Ms. Quinones' sister and niece as the beneficiaries of that will, and sought to have the will admitted to probate.

Mr. Crescenzo retained counsel, who filed an appearance in the probate court on his behalf. Counsel also filed a pleading styled "Answer and Affirmative Defenses to Petition for Administration." That pleading contained a caption stating that it was being filed "In re: The Estate of Herminia Quinones," identified the correct case number, and stated that Mr. Crescenzo had an interest in the estate because he was a fifty-percent owner of the real property that was its sole asset. The answer contained the name and address of Mr. Crescenzo's lawyer. It also contained "affirmative defenses" in which Mr. Crescenzo disputed the validity of the will, alleging that it was procured through fraud and undue influence, and raised objections to the administration of the estate and the appointment of Ms. Simpson as personal representative.

Without conducting a hearing or otherwise considering the issues raised by Mr. Crescenzo's pleading, the probate court entered an order admitting the will to probate and appointing Ms. Simpson as personal representative. The order found that the will had been validly executed and stated, contrary to Mr. Crescenzo's answer, that there had been no objection to the will being admitted to probate. Mr. Crescenzo timely appeals that order, arguing that the probate court was required to consider his challenges to the will's validity and the appointment of a personal representative before admitting the will to probate.

The disputed issue in this appeal is whether Mr. Crescenzo sufficiently presented his challenges to the probate court such that it was required to rule on them before entering its order. Ms. Quinones' estate says that the answer is no because Mr. Crescenzo did not file a caveat and that his only remedy now is to file a petition to revoke probate. See § 733.109, Fla. Stat. (2016) ; Fla. Prob. R. 5.270.

Section 731.110, Florida Statutes (2016), governs the filing of caveats in probate proceedings. The statute provides that an interested person concerned that an estate may be administered or a will probated without his or her knowledge may file a caveat with the court. § 731.110(1). A caveat may be filed either before or after the death of the person whose estate is to be administered, with the exception of caveats of creditors, who may only file after death. Id.

If a caveat [is] filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator's designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules.

§ 731.110(3) (emphasis added).

Thus, when an interested person other than a creditor files a caveat and challenges the decedent's will, "the probate court [is] obliged to make a determination on [the] challenge to the will prior to appointing a personal representative and admitting the will to probate." In re Estate of Hartman, 836 So.2d 1038, 1039 (Fla. 2d DCA 2002) ; see also Rocca v. Boyansky, 80 So.3d 377, 381 (Fla. 3d DCA 2012). The filing of a caveat has "the effect of precluding the admission of the will to probate" until the party filing it has the opportunity to litigate his challenge. Barry v. Walker, 103 Fla. 533, 137 So. 711, 714 (1931) ; see also Rocca, 80 So.3d at 381 (holding that "will contests and the rights of caveators must be determined" prior to the letters of administration being issued).

Rule 5.260 sets forth the procedural requirements for filing a caveat. With respect to the form of the document, the rule provides that

[t]he caveat shall contain the name of the person for whom the estate will be, or is being, administered, the last 4 digits of the person's social security number or year of birth, if known, a statement of the interest of the caveator in the estate, and the name and specific mailing address of the caveator.

Fla. Prob. R. 5.260(b).

Mr. Crescenzo filed a pleading styled "Answer and Affirmative Defenses" and did not file a pleading styled "caveat." But we are quite comfortable under the circumstances of this case concluding that the pleading he filed was the functional equivalent of the form of caveat the rule contemplates. It identified the estate to which it applied (Ms. Quinones' estate), it identified Mr. Crescenzo's interest in the estate (half-owner of the estate's sole asset), and it provided the name and mailing address of his authorized representative (his lawyer). Although the caveat did not provide Ms. Quinones' social security number or year of birth, our record contains no indication that Mr. Crescenzo or his counsel knew that information. Furthermore, we are not dealing with a petition filed before death or before any probate proceedings had been commenced, where the absence of that identifying information might be expected to cause confusion. Here, Ms. Simpson filed a petition for administration of Ms. Quinones' estate that contained the last four digits of Ms. Quinones' social security number. Mr. Crescenzo's answer referenced the petition and identified the case number assigned to it, such that anyone who needed it could have found it.

In sum, any differences between the pleading Mr. Crescenzo filed and the caveat contemplated by rule 5.260 were matters of form that had no effect on the substance of the proceedings. Our court's decision, In re Guth's Estate, 374 So.2d 1098 (Fla. 2d DCA 1979), demonstrates that a probate court should consider an interested person's will contest even where it has been pleaded with imperfect form. There, an interested person filed a caveat with the probate court on the same day that the court entered an order admitting the will to probate. Id. at 1099. After the court denied the caveat as untimely, he filed a motion for reconsideration; the probate court also denied that motion. Id. Finally, the interested person filed a petition for revocation of probate, but that was also denied as untimely because it was beyond the ninety-day window allowed by statute. Id.

Although we affirmed the probate court's determination that the interested person's caveat was untimely, we reversed the denial of the motion to reconsider. Id. at 1100. We held that the trial court should have considered his challenge to the decedent's will because his motion "clearly stat[ed] his interest in the estate and specifically challeng[ed] the validity of his father's will." Id. Because the probate court and all parties were apprised of the nature of his challenge, we reasoned, the interested person was entitled to a hearing on his will contest. Id.

As in Guth's Estate, here we think any variance in form between Mr. Crescenzo's answer and a true caveat is immaterial. There is no question that his answer identified his interest in the estate; there is no question that his answer put the court and the parties on notice of a will contest; there is no question that his answer precisely identified the decedent and will to which his challenge pertained; and there is no question that he was looking for a decision on his will contest before the will was admitted to probate. This is a case in which the substance of what Mr. Crescenzo was doing is obvious and any defect in form is inconsequential. See, e.g., Fla. Prob. R. 5.020(a) ("No defect of form impairs substantial rights ...."); In re Estate of Koshuba, 993 So.2d 983, 986 (Fla. 2d DCA 2007) ("We agree ... that Mr. Zilewicz's written statements, made within his Petition for Administration and the Amended Petition for a Guardian ad Litem, were substantially sufficient to place interested persons on notice of his claim. The documents filed in the probate proceeding ... are defective as to form, but they sufficiently state the character and extent of his claim."); Harbour House Props., Inc. v. Estate of Stone, 443 So.2d 136, 137 (Fla. 3d DCA 1983) ("The creditor's response to the motion to strike its claim became the functional equivalent of a motion to excuse the untimely filing of a claim against the estate.").

Because Mr. Crescenzo's "Answer and Affirmative Defenses" was the functional equivalent of a caveat on the facts of this case, we conclude that the probate court erred in entering its order without first addressing Mr. Crescenzo's will contest. We reverse and remand with instructions for the probate court to vacate the order admitting Ms. Quinones' will to probate and appointing Ms. Simpson as personal representative and to conduct further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

      There appears to be no dispute, at least insofar as this appeal is concerned, that Mr. Crescenzo is an interested person within the meaning of the statute.


text:
    Khambrel Leman HADLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2807
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We agree that the trial court should enter an amended final judgment and sentence incorporating the changes identified in the trial court's order of June 20, 2017, granting Appellant's motion to correct sentencing errors. We remand this matter for that purpose. After careful consideration, we affirm as to all other issues raised in this appeal without further discussion.

AFFIRMED; REMANDED FOR ENTRY OF AMENDED JUDGMENT.

PALMER, WALLIS, and EDWARDS, JJ., concur.

      The State concedes that the court should have entered an amended judgment. Our review of the trial court records confirms that no amended judgment has been entered.


text:
    Donny Lenard GILLARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5351
    District Court of Appeal of Florida, First District.
    March 27, 2018
    Donny Lenard Gillard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Tanquilla PEARSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-1784
    District Court of Appeal of Florida, First District.
    March 27, 2018
    Tanquilla Pearson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.