author: Osterhaus, J.

text:
    Ruben RODRIGUEZ, Appellant, v. TALLAHASSEE FIRE DEPARTMENT/CITY OF TALLAHASSEE, Appellees.
    No. 1D17-2224
    District Court of Appeal of Florida, First District.
    Date of accident: June 20, 2014. March 15, 2018 Rehearing Denied April 13, 2018
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   Osterhaus, J.

In this workers' compensation case, Ruben Rodriguez appeals the Judge of Compensation Claims' (JCC's) order denying his claim seeking payment of impairment benefits for work-related cardiac arrhythmias. In determining that Mr. Rodriguez is not entitled to impairment benefits, the JCC rejected the expert medical advisor's (EMA's) opinion that Mr. Rodriguez has a permanent impairment rating (PIR) of at least 15%, as provided in the Class 2 classification of arrhythmias under the 1996 Florida Uniform Permanent Impairment Rating Schedule (Guide). We reverse because the JCC did not articulate clear and convincing evidence sufficient to reject the EMA's opinion that Mr. Rodriguez requires drugs to prevent arrhythmia-related symptoms.

I.

Mr. Rodriguez was a firefighter who developed cardiac arrhythmias, which were accepted as compensable by his Employer/Carrier (E/C) under section 112.18, Florida Statutes (2013) (providing rebuttable presumption of occupational causation for certain conditions, including heart disease, for certain professions such as firefighting). The accepted date of accident for this claim is June 20, 2014, which is when Mr. Rodriguez underwent an authorized cardiac ablation procedure for his arrhythmias. In the ablation procedure, freezing energy was used to scar Mr. Rodriguez's heart in order to electrically block the abnormal rhythm.

Dr. Cox, the authorized treating cardiologist/ electrophysiologist, placed Mr. Rodriguez at maximum medical improvement (MMI) on October 28, 2014, with a 0% PIR under Class 1 of the Guide. She prescribed a daily dose of 81 milligrams of over-the-counter aspirin for Mr. Rodriguez's condition. During her deposition, Dr. Cox indicated that Mr. Rodriguez has not had a recurrence of symptoms since MMI. Dr. Borzak, Mr. Rodriguez's independent medical examiner (IME), disagreed with Dr. Cox and opined that Mr. Rodriguez was entitled to a 16% PIR under the Class 2 category because an ablation procedure is analogous to having a pacemaker.

To resolve the doctors' disagreement about the impairment rating, the JCC appointed Dr. Castello as EMA. See § 440.13(9)(c), Fla. Stat. (2013). After Dr. Castello's evaluation, he rated Mr. Rodriguez within Class 2, with a PIR of 15% or 16%. The JCC rejected Dr. Castello's opinion, accepted the 0% PIR assigned by Dr. Cox, and denied payment of permanent impairment benefits.

II.

When there is a disagreement in the medical opinions in a workers' compensation case, § 440.13(9)(c) mandates the appointment of an EMA whose opinion "is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC]." See also Taylor v. TGI Friday's, Inc. , 108 So.3d 698, 698 (Fla 1st DCA 2013) ("An EMA's opinion ... is presumed to be correct unless the JCC finds and articulates clear and convincing evidence to the contrary."); Arnau v. Winn-Dixie Stores, Inc. , 76 So.3d 1117, 1118 (Fla. 1st DCA 2011) (remanding for JCC to identify and "articulate" clear and convincing evidence to support his rejection of EMA's opinion). Here, we review whether there is competent substantial evidence (CSE) supporting the JCC's conclusion that clear and convincing evidence contravened the EMA's opinion. See McKesson Drug Co. v. Williams , 706 So.2d 352, 353 (Fla. 1st DCA 1998) (holding that appellate review of JCC's rejection of EMA opinion is limited to whether CSE supports JCC's finding of clear and convincing evidence).

A.

This case involves a dispute about the PIR assigned to Mr. Rodriguez after an ablation procedure improved his cardiac arrhythmia condition. By law, the amount payable in impairment benefits is determined by the PIR assigned to an injury or condition using the Guide. See § 440.15(3)(b)-(c), Fla. Stat. (2013) ; Fla. Admin. Code R. 69L-7.604. Under the Guide's impairment classification category for cardiac arrhythmias, either Class 1 or Class 2 applies in cases like this one, where a patient with documented cardiac arrhythmia is asymptomatic during ordinary daily activities. The least impaired patients fall into Class 1, and may be assigned a PIR from 0% to 14%. Class 2 covers the next PIR range (from 15% to 29% impairment) and applies to patients requiring "[m]oderate dietary adjustment, or the use of drugs, or an artificial pacemaker... to prevent symptoms related to the cardiac arrhythmia." Guide at 82. Or, if a patient requires none of these things, then the arrhythmia must persist and there must be organic heart disease to satisfy a Class 2 rating. Id.

B.

In this case, after a disagreement between health care providers regarding Mr. Rodriguez's PIR-whether it was Class 1 or Class 2-an EMA appointed by the JCC concluded it to be Class 2, with a PIR of 15% or 16%. But the JCC rejected the EMA's opinion of a Class 2 PIR, because it disagreed that an ablation and artificial pacemaker are the same thing, and it disagreed that aspirin is a drug. Mr. Rodriguez finds fault with both of these conclusions by the JCC and asks us to reverse and remand for an impairment rating determination based on the EMA's opinion.

1. We disagree with the first of Mr. Rodriguez's two arguments, which challenges the JCC's rejection of the EMA's interpretation of "artificial pacemaker" as used in the Guide. The EMA's opinion considered an ablation procedure and artificial pacemaker equivalent for purposes of assigning a Class 2 impairment rating of 15-16%. See Guide at 82. The JCC rejected this finding because the evidence showed that Mr. Rodriguez has no artificial pacemaker and because a pacemaker and ablation are different. The JCC found that "a pacemaker is an implantable device that controls the heart rate, while an ablation is an invasive procedure performed to abate cardiac arrhythmia."

The JCC's decision is supported by the record. Both the EMA and Mr. Rodriguez's cardiologist acknowledged that cardiac ablations and artificial pacemakers are different things. An artificial pacemaker is a medical device implanted into an individual's chest to regulate the heart's rhythm. Conversely, an ablation uses freezing to scar the heart into blocking abnormal rhythms. The former treatment method relies on an artificial device going forward to correct cardiac rhythm issues; the latter is a single-event medical procedure. The EMA's testimony acknowledged that his views in assigning the PIR incorporated a "spirit of the guidelines" view versus adhering to the Guide's "letter of the word." It is true that the Guide grants some leeway to physicians to rate impairment based on analogies, where "a category applicable to the impairing condition cannot be found in the Guide." Guide at 2. But in this case, the Guide addresses Mr. Rodriguez's impairing condition. Cardiac arrhythmia is expressly included in the Guide. Guide at 82. What is more, the Guide provides an impairment classification that addresses patients who, at the point of MMI, have a documented arrhythmia, are asymptomatic, and have no evidence of heart disease (as well as don't require moderate dietary adjustment, the use of drugs, or an artificial pacemaker prevent symptoms); it provides for the assignment of a Class 1, 0-14% PIR. As Class 1 fit the facts of Mr. Rodriguez's situation-having had an ablation, but no artificial pacemaker (and putting the aspirin-drug issue aside for the moment (see below) )-we find no fault with the JCC's conclusion to reject the EMA's decision to give a Class 2 PIR based on his "having" an artificial pacemaker.

2. However, we agree with Mr. Rodriguez's second argument and reverse because the JCC disregarded the Guide's Class 2 parameter regarding "the use of drugs." One way that the Guide explicitly separates a Class 1 rating from a Class 2 rating is that Class 2 patients require "the use of drugs" to prevent symptoms related to cardiac arrhythmia. The JCC here assigned a Class 1 rating after deciding, contrary to the EMA's testimony, that the aspirin prescribed by Mr. Rodriguez's cardiologist was not a "drug." To support this conclusion, the JCC misplaced reliance on the definition of "medicine" under paragraph 440.13(1)(l ) ("[A] drug prescribed by an authorized health care provider [which] includes only generic drugs or single-source patented drugs ...."). This definition indicates that "medicine" is a subset of "drug" in that statute, but it doesn't address the definition of "drugs" used in the Guide. The Guide refers to the "use of drugs," not "medicine."

In fact, nothing indicates that the definition of "drugs" in the Guide departs from its usual definition, or that aspirin isn't a drug. See, e.g., Drug, Merriam-Webster Online Dictionary , www.merriam-webster. com/dictionary/drug (last visited Feb. 1, 2018) (defining a "drug" as "a substance used as a medication or in the preparation of medication" and "a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease"); cf. Kirkland v. State , 666 So.2d 974, 976 (Fla. 1st DCA 1996) (striking a condition of probation prohibiting the possession of "any drugs" because it could be interpreted to prohibit aspirin); In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig. , 701 F.Supp.2d 356, 362 (E.D.N.Y. 2010) (recognizing that "[a]spirin is an analgesic, one of a class of drugs that ... may be sold over-the-counter subject to an FDA monograph, which specifies what claims a manufacturer can make about the drug"). The records of Mr. Rodriguez's doctor visits specified that his treatment plan included taking aspirin. And the EMA recognized aspirin to be commonly prescribed to control atrial fibrillation symptoms. The EMA testified that the arrhythmia of atrial fibrillation often returns and that because there is a significant risk for stroke with this arrhythmia, anticoagulants, such as aspirin, are typically prescribed after an ablation. With this evidence, and with nothing concrete supporting the JCC's decision to discount Mr. Rodriguez's use of a drug to prevent arrhythmia-related symptoms, the EMA's PIR should have prevailed.

III.

Accordingly, we reverse the final order and remand for further proceedings in accordance with this opinion.

REVERSED and REMANDED .

Lewis and Bilbrey, JJ., concur.

      We note that the Guide provides for a Class 1 rating in other instances where the patient is doing well at MMI after a cardiac surgery. See e.g ., Valvular Heart Disease, Guide at 76 (including within Class 1, some patients who have recovered from valvular heart surgery); Congenital Heart Disease, Guide at 78 (including within Class 1, some patients who have recovered from corrective heart surgery); Pericardial Heart Disease, Guide at 81 (including within Class 1, some patients who have had the pericardium surgically removed).


source: Caselaw Access Project

author: ROBERTS, J.

license: Public Domain

text:
    Danny PASICOLAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-2634
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017 Rehearing Denied April 26, 2018
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Michael L. Schaub and Lauren Gonzalez, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

Following a jury trial, the appellant, Danny Pasicolan, was convicted of one count of traveling to meet a minor to do unlawful acts after using a computer online service, contrary to section 847.0135(4)(a), Florida Statutes (2013) (Count I); one count of unlawful use of a two-way communications device, contrary to section 934.215, Florida Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138(2), Florida Statutes (2013) (Count III); and one count of unlawful use of computer services to solicit a child to engage in sexual conduct, contrary to section 847.0135(3)(a), Florida Statutes (2013) (Count IV). The information alleged that each of these offenses occurred on October 10, 2013. Subsequent to trial, the appellant timely appealed his convictions and raises three issues on appeal. We affirm the first two issues without further comment.

In his third issue, the appellant argues that two of his convictions violate his constitutional rights against double jeopardy. Specifically, he argues that use of computer services to solicit a minor (Count IV) is subsumed by traveling to meet a minor (Count I) and that unlawful use of a two-way communications device (Count II) is subsumed by each of the other three counts. We disagree and affirm.

On October 10, 2013, the appellant responded to an advertisement on an Internet dating site that was posted by an undercover officer posing as a thirteen-year-old girl. After learning she was thirteen, beginning around 4:30 p.m., the appellant emailed asking if she was a virgin and if she wanted to "lose it." He then emailed pornographic images of his genitals. At around 5:24 p.m., the appellant emailed for a picture and asked if he could come over. By this time, the undercover officer had given the appellant a phone number, and the appellant texted around 5:36 p.m., again requesting pictures. After several failed phone call attempts, at around 6:34 p.m., the appellant called again and again offered to come over. After a brief conversation, the undercover officer ended the call, and the appellant called back immediately around 6:39 p.m. During the ensuing conversation, the appellant asked the undercover officer if she had any sex toys, discussed oral sex, and discussed wearing protection during sexual intercourse. The undercover officer ended the call and the appellant called back at 7:00 p.m. and offered to meet at a gas station. The appellant let the officer know what color shirt he would be wearing and what vehicle he would be driving so she could identify him. Later that day, the appellant arrived at the agreed upon rendezvous point, but in a different vehicle and different clothing from what he had told the officer to expect. The officers waiting for the appellant exercised their due diligence and declined to reveal themselves and effect an arrest.

Later that evening, the appellant and the undercover officer reestablished contact via text messaging, wherein the appellant made several offers to meet up again that night or the following day. He asked for more pictures. The appellant was arrested five days later.

Subsequent to the appellant's sentencing, the Florida Supreme Court decided State v. Shelley, 176 So.3d 914, 918 (Fla. 2015), holding dual convictions for traveling to meet a minor under section 847.0135(4)(b) and unlawful use of computer services to solicit under section 847.0135(3)(b) violate double jeopardy. In addition, in Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015), this Court held dual convictions for traveling to meet a minor under section 847.0135(4) and unlawful use of a two-way communications device under section 934.215 violate double jeopardy. On motion for rehearing en banc in Lee v. State, 223 So.3d 342, 2017 WL 2374401 (Fla. 1st DCA June 1, 2017), this Court recognized that the holdings in Shelley and Hamilton were limited to dual convictions based on the same conduct. The Lee majority applied a three-step double jeopardy analysis and concluded that Lee's convictions for traveling after solicitation, unlawful use of two-way communications device, and soliciting a minor occurred during separate criminal episodes and involved distinct acts of solicitation; therefore, they did not violate double jeopardy. Id. at 347-48.

In the instant case, the evidence at trial showed that on October 10, the appellant responded to an internet advertisement and engaged in sexually explicit email and phone conversations with the "minor" during which he arranged to meet the minor for sex. That same day, the appellant traveled to the arranged meeting spot, a gas station, but was not arrested at that time. At this point in the chronology, the State had presented evidence of at least two instances of solicitation, via email and phone, which support the solicitation charge and the underlying solicitation needed for the traveling charge. We consider the temporal breaks in the chain of communication coupled with the evidence that the appellant transitioned from emailing to a phone call in concluding that, despite the fact that all the communication occurred within a period of hours on October 10, the traveling conviction and the solicitation conviction did not arise out of the same conduct to trigger a violation of double jeopardy. Id. at 347-48. The State had also presented evidence to support the charge of transmission of material harmful to minors by this time in the chronology.

However, the appellant did not stop. After the meeting was unsuccessful, he and the undercover officer began texting again in the evening of October 10. The appellant made arrangements to again meet up, but backed out of the meeting the following day. While the appellant's case was entirely based on the events occurring on October 10, the evidence at trial showed that the traveling was completed and a break occurred before the second set of texting with the victim occurred. That subsequent text message conversation, during which he arranged another meeting, formed the basis for the unlawful use of a two-way device conviction.

Under the rationale in Lee, we find the appellant's convictions are not based on the same conduct to make this a Shelley-type case. As such, we find no violation of double jeopardy. We affirm the appellant's judgment and sentence in all respects.

AFFIRMED.

RAY and KELSEY, JJ., CONCUR.


author: PER CURIAM.

text:
    Bernard Jackson MOORE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-6066
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017.
    Andy Thomas, Public Defender, Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle Denise Lylen, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

We reverse and remand with directions to the trial court to resentence Appellant in light of Walton v. State, 208 So.3d 60 (Fla. 2016), and Williams v. State, 186 So.3d 989 (Fla. 2016).

B.L. THOMAS, C.J., and ROBERTS and ROWE, JJ., CONCUR.


author: WETHERELL, J.

text:
    Kristen Elizabeth WAGNER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3135
    District Court of Appeal of Florida, First District.
    Opinion Filed December 6, 2017 Rehearing Denied January 12, 2018
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant was convicted of attempted first-degree murder for shooting her husband in the back after an argument. She raises four issues on appeal, including a claim that the trial court erred in excluding evidence that she suffered from battered-spouse syndrome (BSS). We affirm because this evidence was immaterial to Appellant's defense that the shooting was an accident.

I

On the night of July 26, 2014, Appellant and her husband got into an argument that turned violent. Appellant had been drinking (she said she had two rum-and-cokes; he said she had as many as five), and the husband claimed that she was the aggressor. However, the husband admitted that during the argument, he held Appellant down on the bed, pushed her to the floor, and took her cell phone and threw it against the wall.

After the husband's son intervened in the argument, Appellant left the house and went across the street to a neighbor's house. When the neighbor did not answer the door, Appellant went back to her house and demanded her keys from the husband who was standing on the front porch about 25 to 30 feet away from Appellant. The husband told her to come get the keys, but she pulled a gun (a Ruger .380-caliber semi-automatic pistol with a laser sight) from her shorts, pointed it at the husband, and told him to throw her the keys. The husband underhand-tossed the keys towards Appellant and they landed 3 to 4 feet in front of her. He then turned around and closed the glass front door behind him as he went back inside the house.

Then, according to Appellant's testimony, as she bent down to pick up the keys with her left hand, the gun that she was holding in her right hand accidentally discharged. She could not remember if her finger was on the trigger, but she testified that she "absolutely [did] not" intentionally pull the trigger and that she was not aiming at anything when the gun went off. The bullet discharged from the gun went through the glass front door and struck the husband in the lower back. The husband made it to the son's room where he collapsed on the floor and told the son to lock the door and call 911.

Meanwhile, Appellant retrieved the keys and went to her car. She put the gun in the center console of the car, but she did not immediately leave. Instead, she went back into the house (without the gun) to look for her glasses, wallet, and phone. When she was unable to find these items, she took the husband's phone and wallet from the master bedroom. Then, she left the house and drove away in her car. She was apprehended by the police a short time later.

Appellant was charged with attempted first-degree murder with a firearm. She filed a notice of intent to rely on BSS evidence under Florida Rule of Criminal Procedure 3.201 and amended the notice three times. Although the trial court found the third-amended notice to be "legally sufficient," the court granted the State's motion to strike the notice and precluded Appellant from presenting the BSS evidence at trial. The court did not explain its rationale for striking the notice, except to note that the notice contained unspecified "defects" that could not be cured through further amendment.

At trial, Appellant's theory of defense was that she brandished the gun in self-defense, but that the shooting was an accident. The jury was instructed on both justifiable use of deadly force and excusable attempted homicide, and during closing argument, defense counsel repeatedly-at least 15 times-described the shooting as an accident.

The jury apparently rejected Appellant's claim that the shooting was an accident because it found her guilty as charged.

The trial court sentenced Appellant to 35 years in prison with a 25-year mandatory minimum based on the jury's finding that she discharged a firearm and caused great bodily harm to the husband.

This timely appeal followed.

II

BSS "has been described as a condition wherein a woman who has had a long-standing personal relationship with a man in which she is frequently subjected to physical abuse, remains with the man but eventually acts against him because of her fear that his continued abuse will mortally injure her." Terry v. State, 467 So.2d 761, 763 (Fla. 4th DCA 1985) ; see also U.S. v. Barnes, 2010 WL 2044913, at *12 n.4 (N.D. Fla. Apr. 22, 2010) ("[BSS] is a set of psychological and behavioral reactions exhibited by victims of severe, long-term, domestic physical and emotional abuse. It is not a mental disease or defect; rather, it is a post-traumatic stress disorder.") (citations omitted), report and recommendation adopted, 2010 WL 2044909 (N.D. Fla. May 24, 2010), aff'd, 427 Fed. Appx. 726 (11th Cir. 2011).

BSS is not itself a legal defense, but evidence that the defendant suffers from BSS is admissible in Florida to support a claim of self-defense when the defendant is charged with a crime against her abuser. See State v. Hickson, 630 So.2d 172 (Fla. 1993). Here, however, Appellant's defense to the discharge of the gun was accident, not self-defense. Cf. Williams v. State, 588 So.2d 44, 45 (Fla. 1st DCA 1991) (explaining that because a claim of self-defense involves "an admission and avoidance," a defendant who claims that her injury of another was the result of an accident generally is not entitled to an instruction on self-defense). Thus, the issue in this case is whether evidence of BSS is also admissible where the defendant asserts the defense of accident, rather than self-defense.

Appellant has not cited-nor has our research located-any Florida case holding that evidence of BSS is admissible where the defendant claims accident rather than self-defense. However, this issue has been considered by courts in other states and those courts have almost uniformly held that evidence of BSS is not admissible in these circumstances. See, e.g., People v. Lasley, 322969, 2015 WL 8538923, at **2-3 (Mich. Ct. App. Dec. 10, 2015) (unpublished), appeal denied, 500 Mich. 880, 886 N.W.2d 422 (2016) ; State v. Hanson, 58 Wash.App. 504, 793 P.2d 1001, 1003 (1990) ; see also McBrayer v. State, 259 Ga. 513, 383 S.E.2d 879, 881 (1989) (finding that defense counsel was not ineffective in failing to request jury instructions on BSS where the defendant claimed the shooting was an accident); Francis v. State, 183 S.W.3d 288, 299 (Mo. Ct. App. 2005), as modified (Jan. 31, 2006) (explaining that because a BSS-supported claim of self-defense requires an intentional act, defense counsel was not ineffective in not presenting expert testimony on BSS where the defendant claimed the shooting was accidental); State v. Sallie, 81 Ohio St.3d 673, 693 N.E.2d 267, 270 (1998) (affirming denial of motion alleging ineffective assistance of counsel and explaining that "[b]ecause [the defendant] did not claim she shot [the victim] in self-defense, evidence that she may have suffered from [BSS] was immaterial [and] trial counsel might reasonably have determined evidence explaining and rationalizing why [the defendant] might intentionally shoot [the victim] would appear inconsistent with the theory of accident, thereby diminishing [the defendant]'s credibility."); cf. People v. Hartman, 86 A.D.3d 711, 713, 926 N.Y.S.2d 746 (N.Y. 2011) (finding BSS evidence inadmissible where "the evidence at trial, including defendant's own testimony, undermined her claim of self-defense").

The only contrary authority appears to be State v. Stewart in which a sharply-divided West Virginia Supreme Court held that the admission of BSS evidence is not limited to cases in which the defendant claims self-defense because such evidence can also be used to show that the defendant could not have formed the intent necessary to commit the crime. See 228 W.Va. 406, 719 S.E.2d 876, 885 (2011) ("[BSS] is admissible to explain to the jury how domestic abuse may affect a defendant's reasoning, beliefs, perceptions, or behavior. This evidence is relevant because it may negate an essential element of the crime charged, such as premeditation, malice or intent."). However, this type of diminished capacity evidence is not admissible in Florida. See Chestnut v. State, 538 So.2d 820, 825 (Fla. 1989) ; State v. Mizell, 773 So.2d 618, 620 (Fla. 1st DCA 2000). Accordingly, we align ourselves with Justice Davis' dissent in Stewart-and the other cases cited above-and find no error in the trial court's exclusion of the BSS evidence in this case.

In reaching this conclusion, we have not overlooked Appellant's argument that the BSS evidence was admissible to explain the reasonableness of Appellant's decision to arm herself and brandish the gun. However, we fail to see how that fact is relevant because Appellant was not charged with illegally possessing or brandishing the gun; she was charged with injuring her husband by discharging the gun, and her sole defense to the discharge was accident. Accordingly, even if the trial court erred in excluding the BSS evidence, the error was harmless because that evidence had no bearing on whether the husband was shot as a result of an intentional or accidental discharge of the gun.

III

For the reasons stated above-and because we find no merit in the other issues raised on appeal-we affirm Appellant's judgment and sentence.

AFFIRMED.

B.L. THOMAS, C.J., and WINSOR, J., CONCUR.


text:
    Robert B. EVELEIGH, Margaret M. Eveleigh, and Carl B. Eveleigh, as named trustees of the separate GST-exempt trusts f/b/o Elizabeth A. Eveleigh and Jennifer M. Eveleigh, Appellants, v. Elizabeth Anna EVELEIGH and Jennifer M. Eveleigh, Appellees.
    CASE NO. 1D16-5166
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Edmond E. Koester, Alex R. Figares, and Caroline Marisa Magliolo of Coleman, Yavanovich & Koester, P.A., Naples, and Louis D. D'Agostino and Maria Vigilante of Cheffy Passidomo, P.A., Naples, for Appellants.
    Jack J. Aiello, John P. Cole, Jason P. Van Lenten, and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A., West Palm Beach, and Robert Goldman and Jon Scuderi of Goldman Felcoski & Stone, P.A., Naples, and for Appellees.
   PER CURIAM.

Appellees' amended motion to dismiss is granted. This appeal is hereby dismissed for lack of jurisdiction.

RAY, WINOKUR, and JAY, JJ., CONCUR.


author: Per Curiam.

text:
    BANKERS TRUST COMPANY OF CALIFORNIA NA, ON BEHALF OF the CERTIFICATE-HOLDERS VENDEE MORTGAGE TRUST 2001-1 UNITED STATES VETERAN AFFAIRS GUARANTEED REMIC PASSTHROUGH CERTIFICATES, Appellant, v. Danielle H. MOSLEY f/k/a Danielle S. Fails, Appellee.
    No. 1D17-2854
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Adam Matthew Topel of Liebler Gonzalez & Portuonda, Miami, for Appellant.
    Lynn Drysdale and James A. Kowalski of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellee.
   Per Curiam.

AFFIRMED. See U.S. Bank Nat'l Ass'n v. Anthony-Irish , 204 So.3d 57 (Fla. 5th DCA 2016), review granted , No. SC16-2276, 2017 WL 4068924 (Fla. Sept. 14, 2017).

Roberts, Rowe, and Winokur, JJ., concur.


text:
    Anthony J. FAILS, Appellant, v. Julie JONES, Secretary, Florida Department of Corrections, Appellee.
    No. 1D16-4558
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Anthony J. Fails, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee; Kenneth Steely, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

By habeas corpus petition, Appellant challenged his 2004 Escambia County judgment and sentence, claiming error in the witness affidavit and arrest warrant. Appellant's claims are meritless, and the lower court properly dismissed his habeas petition. We make no further comment on that.

We write, however, to address Appellant's repeated violations of this Court's orders barring him from pro se filings related to his 2004 Escambia County judgment and sentence. In 2010 this Court barred Appellant from pro se filings related to his case. Fails v. State , 46 So.3d 1032, 1033 (Fla. 1st DCA 2010) (mem.). Undeterred, Appellant filed seven more cases. In 2014 this Court again sanctioned Appellant, referred him to the Department of Corrections for discipline, and warned him further violation could result in a complete pro se bar. Fails v. State , 137 So.3d 623, 623-24 (Fla. 1st DCA 2014). Still undeterred, Appellant filed this meritless appeal of the lower court's proper dismissal of his habeas corpus petition. Moreover, in this appeal, Appellant has engaged in frivolous and excessive motion practice, filing at least twenty-two different motions seeking unwarranted, unavailable, and often incomprehensible relief. This Court granted none, and hereby denies all pending motions without further order or comment.

We find Appellant's present appeal frivolous. We direct a certified copy of this opinion be provided to the Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to section 944.279, Florida Statutes. As we have twice before, we bar Appellant from filing any more pleadings in this Court challenging his 2004 Escambia County judgment and sentence, unless represented by a member in good standing of the Florida Bar.

Further, in light of Appellant's repeat violations of this Court's orders, continued waste of this Court's finite resources to timely review legitimate filings, and failure to heed this Court's multiple warnings, we bar Appellant from all pro se filings in this Court, not just those directed at his 2004 Escambia County judgment and sentence. See Pettway v. McNeil , 987 So.2d 20, 22-23 (Fla. 2008) (explaining each frivolous, repetitive filing detracts from legitimate claims and litigants and drains a court's already scarce resources). We direct the Clerk of this Court not to accept any additional filings from Appellant, unless he is represented by a member in good standing of the Florida Bar.

Accordingly, as barred and unauthorized, we DISMISS Appellant's appeal, bar him from all pro se filings in this Court, and refer him to the Department for appropriate disciplinary action.

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


text:
    Ronald WILLARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4390
    District Court of Appeal of Florida, First District.
    February 9, 2018 Rehearing Denied April 20, 2018
    Ronald Willard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits. SeeThomas v. State, Dept. of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011) (stating that absent a showing that an express and distinct demand for performance was made, mandamus will not lie to compel a court to rule on a pleading in a civil matter).

Wetherell, Makar, and Kelsey, JJ., concur.

ON MOTION FOR REHEARING

We summarily deny Petitioner's motion for rehearing and write only to warn Petitioner about the potential for sanctions if he continues to file frivolous petitions and appeals in this court.

By way of background, in October 2009, Petitioner entered an open plea to multiple offenses arising out of a crime spree that culminated in a "firefight" during which Petitioner discharged numerous rounds at police officers from a .223-caliber M-4 assault rifle. Petitioner was adjudicated guilty of the offenses and he was sentenced to concurrent prison terms, the longest of which was 20 years. The judgment and sentence became final on December 30, 2011, when the mandate issued in Petitioner's direct appeal. See Willard v. State , 75 So. 3d 728 (Fla. 1st DCA 2011) (unpublished table opinion). That should have been the end of the matter, but as discussed below, it was just the beginning.

Petitioner initiated this case (1D17-4390) by filing a petition for writ of mandamus asking this court to compel the clerk of the lower tribunal to provide him a copy of a public record that he had requested and paid $1 for. We denied the petition on the merits because Petitioner had not first sought this relief below by asking the trial court to rule on his pending public records suit. Petitioner's motion for rehearing does not identify anything that we overlooked or misapprehended in our ruling; it simply asks us again (this time in a condescending manner ) to compel the clerk of the lower tribunal to provide him a copy of the public record.

The public record sought by Petitioner was the "official or public record displaying the file number (or clerk instrument number) book number, page number, and recorded date for uniform traffic citation 8957 FPJ filed in the proceeding State of Florida v Ronald Willard." However, it appears from this court's records that Petitioner already has a copy of this traffic citation because he included it as an exhibit to the December 2016 postconviction motion that is the subject of case number 1D17-3811. To the extent that Petitioner is seeking a copy of the citation with a date-stamp showing when it was filed with the clerk of the lower tribunal, the February and May 2015 letters from the clerk that were also attached to the December 2016 postconviction motion informed Petitioner that the citation was not "clocked in" or formally transmitted to the clerk. Thus, it appears that Petitioner has long had the only document the clerk has that would be responsive to his public records request, which means that this mandamus proceeding and the underlying public records suit (both of which postdated the December 2016 postconviction motion) were pointless, if not frivolous.

Unfortunately, this is not Petitioner's only frivolous case in this court. He has filed numerous pro se appeals and petitions since his judgment and sentence became final in 2011. See Case Nos. 1D17-3811 (pending appeal of order denying successive rule 3.850 motion), 1D17-3507 (pending appeal of order denying construed successive rule 3.850 motion), 1D17-3475 (pending appeal of order denying motion for judicial notice); 1D15-3220 (appeal of order denying rule 3.800 motion); 1D15-2725 (appeal of order denying initial rule 3.850 motion); 1D15-0392 (appeal of order holding rule 3.800 motion in abeyance); 1D14-4659 (appeal of order denying rule 3.800 motion); 1D14-0009 (petition alleging ineffective assistance of appellate counsel); 1D13-4851 (appeal of order denying rule 3.800 motion). Petitioner has not obtained relief in any of the prior cases, and at some point, his postconviction filings and appeals need to stop. See Ferris v. State , 100 So. 3d 142, 144 (Fla. 1st DCA 2012) (Wetherell, J., concurring) ("The postconviction process and the appellate courts do not exist simply to give prisoners something to do while they serve their sentences, and there comes a point in every criminal case that the defendant needs to accept the finality of his judgment and sentence and just do his time."). If the filings and appeals continue, then (as the trial court warned Petitioner in the order on appeal in case number 1D17-3811) sanctions will be warranted. The sanctions that can be imposed by this court include, but are not limited to, a prohibition on pro se appeals and petitions and a referral to the Department of Corrections for disciplinary action and the forfeiture of gain time. See State v. Spencer , 751 So. 2d 47 (Fla. 1999) ; §§ 944.279, 944.28(2)(a), Fla. Stat.; Fla. R. App. P. 9.410. Thus, Petitioner should govern himself accordingly.

MOTION FOR REHEARING DENIED.

MAKAR, J., concurring in denial of rehearing.

Ronald Willard filed suit to compel the clerk of the circuit court to provide a one-page uniform traffic citation that he requested from the clerk, who sent him copies of many documents, but not the one he requested and paid for; the trial court has yet to rule on the matter. In this Court, Willard seeks an order to compel the trial court to rule upon his request for the document, but the law requires that Willard make an "express and distinct demand for performance" upon the trial court before this Court has authority to "compel a [trial] court to rule on a pleading in a civil matter," as stated in our disposition order. Willard says this litigation is only about getting the copy of the document. Willard may choose to make such a demand, but if all this case is about is a one-page public record requested by Willard, and if no dispute exists that he is entitled to it, a substantial amount of public funds and resources would be saved by the court system and the clerk's office if the matter were resolved without further litigation and unnecessary expense. If it is the case that Willard's insistence on this one page is yet another frivolous matter, I concur that Willard needs to "govern himself accordingly."

      The "wherefore" clause in the motion states:
      ? Look, if anyone is even reading this, all I'm asking for is the Clerk of the Circuit Court to provide a copy of the one-page document, which has now cost me a ridiculous amount, even by Florida's standards.