author: WELLS, Judge.

text:
    Susan M. RORRER f/k/a Susan M. Orban, Appellant/Cross-Appellee, v. Robert G. ORBAN, Appellee/Cross-Appellant.
    No. 3D16-652
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.

      Damary Valle Stokes, for appellant/cross-appellee.
    Lubell & Rosen and Norman S. Segall, for appellee/cross-appellant.
    Before WELLS, ROTHENBERG and LAGOA, JJ.
   WELLS, Judge.

Susan M. Rorrer f/k/a Susan M. Orban (Ms. Orban, herein) appeals from a final order awarding attorneys’ fees and costs in this post-dissolution proceeding. The former husband, Robert G. Orban, cross-appeals the same determination. Because we find that the trial court erred in applying its own formula rather than the requirements set out in section 61.16 of the Florida Statutes and controlling case law including Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), and Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), we reverse.

“Any determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16.” Rosen, 696 So.2d at 699. That section in part provides:

(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the noncom-pliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party.

§ 61.16(1), Fla. Stat. (2016).

“The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).” Rosen, 696 So.2d at 699. As the Rosen court went on to explain, “[i]n Canakaris, we noted that it is not necessary that one spouse be completely unable to pay attorney’s fees for the trial court to require the other spouse to pay those fees. In other words, to ensure that both parties have similar access to competent legal counsel, the trial court must look to each spouse’s need for suit money versus each spouse’s respective ability to pay.” Id

Here, over four years of extensive litigation followed the parties’ dissolution of marriage during which the trial court addressed a number of issues concerning the parties’ four children and the alimony Mr. Orban had been ordered to pay. Ultimately, Ms. Orban sought to be compensated for the attorney’s fees and costs she had incurred relating to this post-judgment litigation.

In the final fee order, the trial court specifically found that “the Former Husband’s improper conduct ... created otherwise unnecessary litigation and required unnecessary judicial intervention.” The order also observed that Mr. Orban had a “far superior financial ability to pay professional fees, including attorney fees and costs.” Rather than relying on the financial condition of each spouse and Mr. Orban’s litigious behavior to arrive at a fee award, the trial court decided to apply a formula of its own making in an effort to, by its own observation, act as a “disincentive” to future litigation:

[By the court]: [T]he court in general, as I mentioned yesterday, does not, even though the petitioner is seeking a 100 percent of her fees, the court does not like to award a 100 percent of fees because it forms a disincentive for a party to economize if somebody else is paying all of their fees. I prefer to allocate fees and costs as on the percentage basis of the disparity in income between the parties.

Apparently to this end, the trial court in its initial fee order first amalgamated the parties’ fees by adding Ms. Orban’s fees and costs ($230,802.35) to Mr, Orban’s fees and costs ($284,470.30) for a total of $515,272.65, and then ordered each party to be responsible for a portion of that amount approximately equal to the percentage each contributed to their joint income. Specifically, Mr. Orban was ordered to pay 89% and Ms. Orban was ordered to pay 11% of the total expended by both parties ($515,272.65) for attorneys’ fees and costs. Mr. Orban also was ordered to pay an additional $6,000 to Ms. Orban’s new counsel.

Thereafter, the trial court, using the same methodology used in the initial order, issued an amended fee order. This order first determined that the correct amount of attorney’s fees and costs incurred by Ms. Orban was $238,924.91 (the initial $230,802.35, plus the $6,000 award to her new attorney in the original order, as well as $2,122.56 in additional fees she had incurred). The court then added this amount ($238,924.91) to the amount incurred by Mr. Orban ($284,470.30) to arrive at a fee total for both parties of $521,272.65. The court then applied a more exact formula based on the precise percentage each party contributed to their joint income (88.44% for Mr. Orban, 11.56% for Ms. Orban) to obligate Mr. Orban to pay a total of $178,665.65 of Ms. Orban’s $238,924.91 in fees and costs.

This allocation, aimed as it was at encouraging the parties to economize in litigation, we find to be contrary not just to the goal enunciated long ago in Ganakaris “that neither spouse pass[] automatically from misfortune to prosperity or from prosperity to misfortune,” but also to the requirements of section 61.16. Canakaris, 382 So.2d at 1204. As this court found in Gomez v. Gomez, 642 So.2d 107, 107-08 (Fla. 3d DCA 1994), use of a “report [that] concluded that because appellee earned sixty eight percent (68%) of the parties’ total income, he should be made to pay only sixty eight (68%) of the fees and costs of both parties,” was improper because “it is well established in dissolution cases that attorneys’ fees and costs are to be borne by the party who has the superior or greater financial ability to pay.” Our sister court in Widder v. Widder, 673 So.2d 954, 955 (Fla. 4th DCA 1996), similarly rejected the use of such formulas:

At bar, the trial court erred as it did not appropriately consider the relative financial circumstances of the parties in assessing whether to award fees to the former wife. Rather, the trial court used a method of apportioning the attorney’s fees in accordance with the same percentages of child support they were required to pay as per the final judgment and section 61.30, Florida Statutes (1991)....
While we are sure that the trial court was well meaning in trying to mold a solution ... this was still not the method envisioned by the legislature for awarding fees in post-dissolution proceedings under section 61.16, even when the issues involve the parties’ children.... [T]he fee determination must still be made by considering the relative financial circumstances of the parties as per section 61.16 and the cases interpreting it, and using the appropriate inquiry of whether one party has the need for such fees and the other party has the ability to pay them.

Accord Wheeler v. Wheeler, 679 So.2d 31, 32 (Fla. 4th DCA 1996); see also Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999) (“Where there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant a partial attorneys’ fee award.”); accord Mount v. Mount, 989 So.2d 1208, 1210 (Fla. 2d DCA 2008) (confirming that in a post-dissolution modification proceeding “the proper inquiry [when making a fee determination] is whether one spouse has a need for suit money and whether the other has the ability to pay”); Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006) (noting husband’s “far superior financial posture” and the delay tactics he employed and concluding “that the trial court breached its discretion in not granting Laurie all or most of the fees and costs expended by her attorney”); Baker v. Baker, 754 So.2d 754, 755 (Fla. 3d DCA 2000) (“It is clear from this record that Roland’s significant earnings give him a far superior ability to pay Addie’s attorney’s fees and costs. The law is clear that in dissolution cases attorney’s fees and costs are to be borne by the party who has the greater ability to pay. Accordingly, Roland should pay all of the attorney’s fees and costs.”) (citations omitted); Heller v. Kuvin, 490 So.2d 245, 245 (Fla. 3d DCA 1986) (“While the record demonstrates that both parties have sufficient funds to pay the wife’s legal fees and costs, it is also apparent that the husband’s ability to pay these fees is superior to that of the wife .... In view of the husband’s superior ability to pay, we think, and so hold, that the trial court abused its discretion in requiring that the husband pay only $8,000, rather than the entire $14,000, for the wife’s attorney’s fees.”).

That is not to say, and we do not hold today, that a trial court in a chapter 61 matter may not award only a portion of the fees and costs incurred by a party. We hold only that it was error below to apply a formula based on the parties’ respective incomes to determine the amount to be awarded to Ms. Orban. The error in using a formula was further compounded here by the trial court’s failure to account for its own finding as to Mr. Orban’s “improper conduct which created otherwise unnecessary litigation and required unnecessary judicial intervention.” See Rosen, 696 So.2d at 700-01. By fading to so account, it would appear that the only party being discouraged from further litigation was Ms. Orban, who after being subjected to “improper conduct” by Mr. Orban, which ran up the amount of fees and costs incurred, was obligated to pick up part of the tab for it.

In sum, the trial court’s errors were multi-fold. It wrongfully combined the attorney’s fees and costs of the parties and then awarded Ms. Orban only a portion of that total based on a comparison of her income to Mr. Orban’s rather than on determination of need and ability to pay. The trial court further failed to consider or account for Mr. Orban’s documented improper litigious behavior, to finally rely on the court’s own self-proclaimed vision of how to get litigants to economize on their legal expenses. What resulted was a calculation that unfairly and impermissibly penalized Ms. Orban.

This resolution makes it unnecessary for us to address any of the issues raised on cross-appeal, except that relating to the trial court’s jurisdiction to enter a fee award where many orders entered during this post-dissolution matter included no reservation of jurisdiction to do so. Specifically, relying solely on the Fourth District Court of Appeal’s 1991 decision in Cibula v. Cibula, 578 So.2d 519 (Fla. 4th DCA 1991) (en banc), Mr. Orban argues that because each of the orders on the parties’ sixty or so motions filed during this post-decretal proceeding did not reserve jurisdiction to award attorney’s fees, these matters could not be considered when entering a fee award:

Because each post-judgment proceeding stands on its own, it was necessary for the Former Wife to prove reasonable fees based only upon matters that contained an award of reservation of jurisdiction. Attorneys’ fees could not have been awarded for anything other than five orders that had a reservation of jurisdiction because the trial court lost jurisdiction over the others, and there was no evidence of the time spent or reasonability of the time on any of those.

In Cibula, the en banc court concluded that because a number of post-decretal orders resolving several contempt proceedings failed to reserve jurisdiction to award attorney’s fees, the trial court was without jurisdiction to later award fees upon resolution of a pending modification proceeding. In a dissenting opinion joined in by Judges Letts, Dell, and Farmer, Judge (later Justice) Anstead stated, “I think the legislature meant what it said when it used the broad phrase ‘may from time to time,’ in authorizing trial judges to award fees in dissolution proceedings, including enforcement actions. It seems unnecessary, and impractical, to require a reservation of jurisdiction in an enforcement order.” Id. at 521. Nearly thirteen years later, this same court acknowledged, although in a different context, that Judge Anstead was indeed correct.

In Gosselin v. Gosselin, 869 So.2d 667, 669 (Fla. 4th DCA 2004) (footnote omitted), the Fourth District confirmed that while many post-decretal orders may be final for the purposes of appeal, arguably requiring contemporaneous fee motions and orders, “it [did] not necessarily follow that each of these orders must be deemed a ‘judgment’ ” so as to mandate a separate fee order:

Whether a post-decretal order is final or non-final is a source of confusion, even among experts in the field.
In this case, many of the orders addressed in the amended motion for fees and costs were final orders ... for purposes of filing an appeal. However it does not necessarily follow that each of these orders must be deemed a “judgment” within the meaning of Rule 1.525.[] That rule contemplates that a single motion for fees must be filed within thirty days of what is typically the single judgment in a case. The drafters of Rule 1.525 likely never contemplated that it would be applied to post-decretal orders in marital dissolution cases. In such cases, especially where minor children are involved, a final judgment of dissolution will, as here, typically result in several post-decretal orders accumulating in short order. It would seem both awkward and inconsistent with the general practice in this area to require separate attorney’s fee motions to be brought each time a post-decretal order issues.
In this regard, we look to the language of section 61.16, Florida Statutes, which governs attorney’s fees in dissolution actions. This section states that the court “may from time to time” award fees to a necessitous party. We note that the “bright-line” purpose of Rule 1.525 to “resolve the uncertainty surrounding the timing of these motions’^ ] will grow dimmer if parties are routinely required to decide whether a particular post-de-cretal order is sufficiently final to constitute a separate judgment under the rule.
Instead, we adopt a bright-line construction consistent with both the simplifying purposes of Rule 1.525 and the practice under Fla. Sta. section 61.16, by holding that Rule 1.525 does not apply to post-decretal orders in marital dissolution actions. In such cases, so long as a party seeks fees within a reasonable time after the post-decretal work was performed, such motion will be timely filed.

The following year, the Florida Supreme Court adopted Family Law Rule of Procedure 12.525 which in its entirety provides “Florida Rule of Civil Procedure 1.525 shall not apply in proceedings governed by these rules.” Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla. 2005). In doing so, the Supreme Court confirmed that different rules apply in family matters from those that apply in other civil matters:

We agree that rule 1.525 should not apply in family law proceedings. The method of taxation of attorneys’ fees and costs in family law cases is quite different from that in civil litigation. Whereas the former is based on need and ability of the parties to pay, the latter is based on prevailing considerations. Moreover, section 61.16, Florida Statutes (2004), already governs the award of attorneys’ fees and costs in family law cases. See also Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997) (noting that “[a]ny determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16, Florida Statutes”).

Id. at 467-68.

By citing to Rosen, the Court further confirmed its earlier determination that under section 61.16 “a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties” as well as “other relevant circumstances” including “the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Rosen, 696 So.2d at 700.

Post-decretal proceedings commenced in this case almost as soon as the marriage was dissolved when Ms. Orban filed a verified motion for contempt and to enforce the marital settlement agreement claiming that Mr. Orban was engaging in a personal vendetta against her, harassing her and disparaging her to the parties’ four minor children. She also claimed, among other things, that he was in arrears in child support payments. This petition was shortly followed by Mr. Orban’s petition to modify the final judgment claiming that Ms. Orban was living in a supportive relationship thereby entitling him to terminate alimony. Thereafter, motion upon motion to enforce various portions of the marital settlement agreement, as well as motions to compel discovery and other matters, followed. While virtually all of these motions requested a fee award, not all of the orders thereon made a fee award or reserved jurisdiction to do so later.

Finally, in 2015, after years of litigating issues related to timesharing, support, visitation, and many other matters regarding the parties’ children, as well as litigating issues relating to alimony and discovery related to these matters, the trial court heard the remaining matters pending between the parties: Mr. Orban’s petition to modify alimony and his counter-petition to modify timesharing; and Ms. Orban’s petition to modify the parenting plan for the parties’ children. While both parties had diligently requested fee awards in their motions throughout these proceedings, each filed additional fee motions shortly before the final hearing.

Apparently feeling unconstrained by the argument he currently makes here, Mr. Orban sought to recover for fees and costs he incurred relating to the many orders entered throughout the entire proceeding, even those without any fee provision, arguing in part:

For three years, the Former Husband has been subjected to vexatious litigation by the Former Wife. He is entitled to recover his attorney’s fees incurred in defending the same.

Ms. Orban similarly sought an award of attorneys’ fees incurred throughout the litigation because of “the Former Husband’s improper conduct which created otherwise unnecessary litigation and required otherwise unnecessary judicial intervention.” Ultimately, the court below determined, based expressly on Rosen and section 61.16, that Ms. Orban was entitled to a fee award for the costs she had incurred “in these post-judgment proceedings.”

As Rosen and its progeny confirm, the court below clearly had jurisdiction to consider “the scope and history of [this] litigation; the duration of [this] litigation; the merits of the respective positions; whether [this] litigation [was] brought or maintained primarily to harass [or to frustrate or stall]” as well as “the existence and course of prior or pending litigation” irrespective of whether fee awards had been addressed in orders entered during this post-decretal litigation. See Rosen, 696 So.2d at 700.

In sum, we conclude that the decision in Cibula does not support a determination that the court below was without jurisdiction to consider any portion of these post-decretal proceedings or would be required to parse out individual orders because they did not include a fee award when entering the final fee award at the conclusion of this proceeding. Rather, under section 61,16 and Rosen, the trial court was permitted to award Ms. Orban a reasonable amount for the attorney’s fees and costs she incurred for maintaining or defending the various matters that occurred all the way up to, and including, the time of the final hearing in this case.

Accordingly, we reverse the order under review and remand for entry of a new fee award based on the criteria set forth in section 61.16 of the Florida Statutes.

      , The trial court initially found the testimony of Ms. Orban’s counsel supported an award of $222,381.89 in fees and costs of $8420.46 in cost. This totaled $230,802.35.

      . As to the parties’ incomes, the trial court found:
      [T]here is substantial disparity in the parties’ respective incomes insofar as the Former Husband’s income, less court ordered obligations, is $336,741.00 and the Former Wife’s income is $44,000.00 [for a total of $380,741.00],
      To be accurate, $336,741 is 88.44% of $380,741; $44,000 is 11.56% of $380,741.

      . While we are well aware that adding $238,924.91 to $284,470.30 amounts to $523,395.21, for reasons not explained, the court below, after adding $2,122.56 to the other amounts expended by Ms. Orban to arrive at a total fee for her of $238,924.91, then deducted that same amount ($2,122.56) from the total amount of fees she incurred to arrive at a total fee expenditure by both parties of $521,272.65 ($284,470.30 plus $238,-924.19-$2,122.56 [with a .72 disparity]).

      . The final order actually awards only $134,315.46 to Ms. Orban. That number accounts for sums previously ordered credited to Mr. Orban as follows:
      88.44% of the $515,272.65 total = $461,013.53
      Less Mr, Orban’s entire fees/costs $284,470.30 $176,543.23
      Less previous credits to Mr. Orban $ 44.350.00 $132,193.23
      Plus the new attorney fee award + $ 2.122.56
      Total awarded to Ms. Orban $134,315. [79]
      We take no issue with the missing 33 cents.

      . That rule provides:
      Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.
      Fla. R. Civ. P. 1.525.

      . Many of these orders clearly state that they are temporary orders.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Piero SALUSSOLIA, P.A., etc., Appellant, v. Gianni NUNNARI and Hollywood Gang Productions, LLC, etc., Appellees.
    No. 3D16-436
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.
    Becker & Poliakoff, P.A., and Jon Polen-berg, Jude C. Cooper, and Yasin Danesh-far (Fort Lauderdale), for appellant.
    Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander, Brian C. Tackenberg, and George R. Baise Jr.; Jason B. Giller, for appellees.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

The plaintiff below, Piero Salussolia, P.A. (“the law firm”), appeals from the trial court’s order granting the defendants’, Gianni Nunnari and Hollywood Gang Productions, LLC (collectively, “the clients”), motion for judgment on the pleadings as to all counts of the complaint. We affirm the portion of the trial court’s order granting judgment on the pleadings as to the law firm’s claim against the clients for payment of a “success fee.” However, because we conclude that the complaint sufficiently pleads a cause of action for breach of contract for legal services rendered by the law firm under the retainer provision of the Attorney/Client Engagement Agreement (“the Agreement”), or in the alternate for quantum meruit, we reverse that portion of the order granting judgment on the pleadings as to the portion of Count I pertaining to fees for services under the retainer provision of the Agreement and Counts II and III.

After a $13,200,000 judgment was entered against the clients, the clients retained the law firm to appeal the judgment, negotiate a settlement with the judgment creditors for a reduced amount, and/or pursue other measures to offset the judgment amount. The clients and the law firm entered into the Agreement, which contains two separate fee provisions—a monthly retainer fee provision to offset the fees incurred during the litigation and a success fee provision.

The law firm filed a three-count complaint, seeking damages against the clients under three alternative theories—breach of contract (Count I), open account (Count II), and quantum meruit (Count III). The law firm alleged in its complaint that it performed under the Agreement by negotiating a settlement with the judgment creditors that reduced the judgment by millions of dollars. The law firm further alleged that despite the law firm’s performance under the Agreement and the tendering of invoices for the fees due under the Agreement, the clients have failed to pay a success fee or to fully compensate the law firm for its services under the Agreement.

The clients filed their answer, affirmative defense, and a counterclaim. The counterclaim seeks disgorgement of attorney’s fees paid to the law firm and an equitable accounting. Thereafter, the clients filed a motion for judgment on the pleadings. Following a hearing, the trial court granted the motion as to all three counts, finding that the law firm’s “claims are unsupportable, most significantly based upon John Alden Life Ins. Co. v. Benefits Management [Associates], Inc., 675 So.2d 188 (Fla. 3d DCA 1996).” This appeal followed.

“[I]n ruling on a defendant’s motion for judgment on the pleadings, all the allegations set forth in the complaint must be taken as true and all the allegations in the answer, which are automatically denied, must be accepted as false.” Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001). Further, “[a] motion for a judgment on the pleadings should only be granted if the moving party is entitled to a judgment as a matter of law.” Briarwinds Condo. Ass’n v. Rigsbi, 51 So.3d 532, 533 (Fla. 3d DCA 2010).

A review of the complaint and the Agreement, which was attached to the complaint in the instant case, reflects that the law firm’s claims are based on the clients’ alleged failure to pay fees due under the Agreement—the fees for legal services rendered by the law firm under the retainer provision and a success fee. We agree with the trial court’s finding that the success fee provision, which fails to include essential terms, is unenforceable. See John Alden, 675 So.2d at 189 (holding that a contractual provision to negotiate a bonus payment in the future “was merely an ‘agreement to agree’ in the future about the bonus and hence unenforceable as a matter of law’). However, as to.the law firm’s claims based on the alleged unpaid attorney’s fees due under the retainer provision, we find that the allegations in the complaint were sufficiently pled to withstand the motion for judgment on the pleadings. Accordingly, we affirm the order under review as it pertains to the success fee, but reverse the order under review as it pertains to the alleged unpaid attorney’s fees due under the retainer provision of the Agreement.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The success fee provides as follows:
      2. Success Fee. A success fee of a percentage, to be agreed upon amongst the parties hereto, based on the amount by which Client’s Judgment amount is reduced will be charged as a success fee NOT TO EXCEED 1 MILLION. For example, if Client owes $10,000.00 on the Judgment and through the Appeal and/or the Settlement, that amount is reduced to $6,000.00 saving Client $4,000.00, then the Firm success fee shall be a percentage of $4,000.00. Success fee shall be payable to the Firm immediately upon termination of the Appeal and/or the full execution of the Settlement Agreement.
      (emphasis in bold; handwritten provision in italics).


author: SCALES, J.

text:
    Michael FOSTER, etc., Petitioner, v. BANK OF AMERICA, N.A., et al., Respondents.
    No. 3D16-2655
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.

      Dunn Law, P.A., and Alexis S. Read and Michael P. Dunn, for petitioner.
    Liebler, Gonzalez & Portuondo, and Andrew L. Portuondo, for respondent Bank of America, N.A.'
    Before SALTER, FERNANDEZ and SCALES, JJ.
   SCALES, J.

Petitioner and plaintiff below, Michael Foster, as trustee of the Theodore and Beatrice Foster Irrevocable Intervivos Insurance Trust (“Foster”), seeks certiorari review of an October 28, 2016 trial court order denying Foster’s motion to compel Bank of America (“BOA”), Respondent and defendant below, to produce certain bank records related to an allegedly stolen check. Because the bank records that are sought are highly probative and plainly relevant to Foster’s allegations, we grant the petition and quash the challenged discovery order.

I. Facts

In March of 2016, Foster’s insurance company issued a check made payable to Foster in the amount of $123,038.64. The check was mailed to property owned by Foster, but rented, to, and occupied by, defendants Benjamin J., Borsani and Rajmonda Bycmeti. Foster alleges that Borsani and Bycmeti intercepted the check, caused the check to be endorsed by Borsani and Bycmeti’s company (co-defendant Bed Cloud, LLC), and deposited the check into a BOA account owned by Bed Cloud.

In August of 2016, Foster filed a multi-count complaint against Borsani, Bycmeti, Bed Cloud, and BOA. In addition to asserting counts for civil theft and conversion, Foster’s complaint seeks to impose a constructive trust on assets of the defendants which are traceable from the alleged theft, Additionally, Foster asserts a negligence claim against BOA alleging that BOA improperly negotiated the check. Foster’s complaint attaches a copy of the check as an exhibit. ■ While “Theodore & Beatrice Foster Irrev Life Ins Trust” is identified as the check’s sole payee, the back of the check contains Bed Cloud’s single, stamped endorsement, referencing an account at BOA.

After the Bank was served with Foster’s complaint, Foster served a request for production on BOA that sought: (i) all surveillance footage and digital images relating to or depicting the deposit of the check; (ii) all transactions related to the check; and (iii) all unprivileged communications between BOA and anyone else related to the check.

BOA filed an objection to Foster’s production request, citing section 655.059(l)(e) of the Florida Statutes, which requires a financial institution to keep all of its books and records confidential unless otherwise compelled by a court of competent jurisdiction. Foster responded to BOA’s objection by filing a motion to compel. Foster’s motion to compel argues, among other things, that the records sought—related to the allegedly stolen and.wrongfully endorsed check—are highly probative and relevant to the issues in the case as framed by Foster’s complaint.

The trial court conducted a hearing on the discovery issue, and entered the challenged order. The trial court’s order required BOA to produce the information sought in Request No. 1 (i.e., the surveillance footage and digital images relating to the check), but denied Foster’s motion as it related to Request Nos. 2 and 3. The trial court’s order states that Foster “has not made an adequate showing of necessity which outweighs the countervailing interests of [BOA] in maintaining the confidentiality of the documents and information sought by [Foster] .... ”

Foster seeks certiorari relief from this order. We grant Foster’s petition and quash the trial court’s order.

II. Analysis

Certiorari relief is appropriate only when the petitioner establishes that the trial court departed from the essential requirements of law, which results in a material injury for the remainder of the case, and which cannot be remedied on appeal. Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters. LLC, 99 So.3d 450, 454 (Fla. 2012); Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014). A trial court departs from the essential requirements of law and causes irreparable harm when it denies a party discovery to establish the elements necessary to prove that party’s case. Publix Super Mkts., Inc. v. Hernandez, 176 So.3d 350, 351-52 (Fla. 3d DCA 2015).

While a party’s financial records are generally not subject to pre-judgment disclosure, such financial records, if relevant to the disputed issues of the underlying action, are fully discoverable. Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003); Epstein v. Epstein, 519 So.2d 1042, 1043 (Fla. 3d DCA 1988). Courts will compel the production of such records if they are shown by the requesting party to be relevant to the pending action. Bd. of Trs. of the Internal Improvement Tr. Fund, 99 So.3d at 458.

Foster alleged that a party stole a check, endorsed this stolen check, and that another party—BOA—wrongfully paid this check based on the endorsement; thus, the information and documents related to this check’s journey through BOA and the financial system are highly relevant to the causes of action alleged by Foster. Additionally, Foster seeks to trace the funds BOA paid from check proceeds to BOA’s co-defendants in an effort to have the court impose a constructive trust on those funds. Plainly, Foster is entitled to obtain information and documents related to BOA’s allegedly wrongful payment of the check. Without this critical information it would be extremely difficult, if not impossible, for Foster to recover funds that might be due to him as trustee.

We note that BOA’s objection to Foster’s production request was reasonable and necessary. After all, not only does the subject statute require financial institutions to keep its books and records confidential, but section 655.059(2)(c) of the Florida Statutes actually makes it a felony for any person wrongfully to disclose such confidential information. The confidentiality protections afforded and protected by the statute, however, simply are not implicated in this case. Here, the financial records regarding the check, and the proceeds therefrom, form the core of the issues in this case as framed by the pleadings. Friedman, 863 So.2d at 194. We note that, to the extent the trial court has confidentiality concerns, the trial court has the means, such as an in camera inspection, to address any such concerns. Id.

III. Conclusion

We grant Foster’s petition and quash the trial court’s October 28, 2016 discovery order.

Petition granted; order quashed.

      . There is no transcript for this hearing.


author: PER CURIAM.

text:
    Thomas ECKERT, Appellant, v. PINELLAS COUNTY SHERIFF’S OFFICE /Pinellas County Risk Management, Appellees.
    CASE NO. 1D16-2555
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.
    Rehearing Denied April 27, 2017
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Tonya A. Oliver of Bichler, Oliver, Longo & Fox, PLLC, Tampa, for Appellant.
    Nancy S. Meyer of Pinellas County Attorney’s Office, Clearwater, for Appellees.
   PER CURIAM.

Claimant appeals an order of the Judge of Compensation Claims (JCC) to the extent that it denies payment of impairment benefits (IBs) “at the correct rate.” Specifically, Claimant argues that 23 non-consecutive weeks of the 169 weeks of IBs to which he was entitled were underpaid— more specifically, paid at half of their proper rate. We reverse.

The statute at issue is section 440.15(3)(c), Florida Statutes (2009), and the pertinent sentence reads:

Impairment income benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefit under s. 440.12; provided, however, that such benefits shall be reduced by 50 percent for each week in which the employee has earned income equal to or in excess of the employee’s average weekly wage.

(Emphasis added). The Employer/Carrier (E/C), acting under this statute, paid only the reduced amount of IBs for the 23 weeks during which Claimant drew from his accrued leave (sick leave and vacation leave) instead of working the entirety of his scheduled hours. The E/C asserts that when Claimant drew the leave, Claimant’s resulting full paycheck constituted “income” equal to his average weekly wage (AWW). Claimant, however, persuasively argues that drawn leave cannot count toward his AWW for the week in which it is drawn because the leave was previously accrued, and thus had not been “earned” during each week at issue. It was earned and accrued at an earlier time.

The parties concede that the plain meaning of this statute will control. The parties disagree, however, on what that plain meaning is. Answering this question of first impression, we now hold that the operative word in the statutory sentence is the word “earned” and conclude that because the previously accrued leave was not earned during the week it was drawn but had already vested, it cannot be included in the calculation of earnings during the weeks in which IBs are payable for the purpose of reducing IBs.

REVERSED and REMANDED for further proceedings in accordance with this opinion.

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


text:
    Christopher S. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-26
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.

      Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, and Melissa Joy Ford, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises two issues in this direct criminal appeal. First, he contends that it was error under Williams v. State, 186 So.3d 989 (Fla. 2016), and Gartman v. State, 197 So.3d 1181 (Fla. 1st DCA 2016), for any portion of his sentences to be imposed consecutively. Second, he contends that it was error for a successor judge to rule on his rule 3.800(b)(2) motion and resentence him over his objection. The State concedes error on the second issue, but argues that the trial court has the discretion to impose consecutive sentences on remand.

We accept the State’s concession of error on the second issue because there was no showing of necessity or an emergency that would justify resentencing by a successor judge in this case. See Clemons v. State, 816 So.2d 1180, 1182 (Fla. 2d DCA 2002) (explaining that the reassignment of the original judge to a different division is not a legally sufficient reason for a successor judge to preside over re-sentencing). Accordingly, we reverse Appellant’s sentence and remand for resen-tencing by the original judge.

Although this moots the first issue, we will address it for the benefit of the parties and the trial court on remand. The reeord reflects that Appellant was convicted as a principal of second-degree murder and attempted second-degree murder based on the shooting of two individuals by his co-defendant. But, because the jury only found that Appellant possessed a firearm, concurrent sentences were required. See Williams, 186 So.3d 993 (holding that consecutive mandatory minimum terms under the 10-20-Life statute are permissible—but not mandatory—when multiple victims were shot at, but that they are “impermissible ... if the firearm was merely possessed but not discharged”); State v. Christian, 692 So.2d 889, 891 (Fla. 1997) (“The stacking of firearm mandatory minimum terms thus is ... impermissible where the defendant does not fire the weapon.”); Gartman, 197 So.3d at 1182 (construing Williams to mean that no portion of a sentence under the 10-20-Life statute for a second qualifying offense can be consecutive where the jury found that the defendant only possessed a firearm). That said, because second-degree murder is a first-degree felony punishable by a term of years up to life in prison, see § 782.04(2), Fla. Stat. (2013), the requirement for concurrent sentences will not preclude the trial court on remand from structuring Appellant’s sentences in a manner that achieves the original sentencing goal of an overall sentence of 40 years in prison followed by 10 years of probation. See James v. State, 845 So.2d 238, 240 (Fla. 1st DCA 2003) (citing Harris v. State, 645 So.2d 386 (Fla. 1994)).

Finally, because Appellant does not challenge his convictions on appeal, we affirm them without discussion.

AFFIRMED in part; REVERSED in part; REMANDED for resentencing.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


author: BILBREY, J. WINOKUR, J.,

text:
    George G. HEADY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4013
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTIONS FOR REHEARING, ISSUANCE OF WRITTEN OPINION, CERTIFICATION OF CONFLICT, AND REHEARING EN BANC

BILBREY, J.

Appellant, pursuant to rules 9.330(a) and 9.331(d), Florida Rules of Appellate Procedure, moves for rehearing, issuance of a •written opinion, certification of -conflict •with decisions of other district courts of appeal, and rehearing en banc. We deny all of Appellant’s motions other than his motion for issuance of a written opinion. We withdraw the prior per curiam affirmance and substitute in its place the following written opinion which addresses the only issue raised in Appellant’s motions. We affirm the other issues in the initial brief raised by Appellant -without comment.

Following a trial, Appellant was convicted of three counts of sexual battery on a child less than 12 years of age, lewd or lascivious molestation on a child less than 12 years of age, lewd or lascivious exhibition, and battery of a child. The trial court imposed lawful sentences following trial including concurrent life sentences for each of the sexual battery convictions. Appellant contends that the trial court erred by denying a motion for mistrial made by his trial counsel after the eight-year old child victim interacted with her family members during a break in the victim’s testimony. We disagree and affirm.

The child victim initially was somewhat equivocal in her testimony. She testified that Appellant touched her with his hand in her “privates” which she uses to “pee” and that the touching occurred under her clothes. However she denied or expressed no memory of other allegations she had previously made against Appellant.

The State asked for a recess. Appellant’s counsel expressed concern about the victim discussing her testimony with anyone during the recess. After the recess the Assistant State Attorney positioned herself so that the victim would look at her and not the Appellant. The State continued its direct examination of the victim and the victim testified, consistent with her prior statements, to all of the offenses committed by Appellant.

On cross examination, the victim was asked about her communications with anyone during the recess. The victim testified that she talked with someone about how important it was to remember, but did not know who she talked to. The victim also stated that it was her mother who spoke to her outside the courtroom. The victim answered affirmatively when asked if her mother said it was important for her, in the words of defense counsel, to “say this stuff.”

After the victim concluded her testimony, Appellant moved for a mistrial. The evidence as to what happened during that break varied. The State proffered the testimony of its victim’s advocate, who testified she was with the victim during break and that the victim did not speak with anyone about the case, but that the victim’s mother did give her a hug and said “I love you.” The mother testified that she only said “I love you” while giving a hug to the victim. She thought her mother (the child’s grandmother) also gave a hug and said “I love you.” But, the victim’s advocate testified that she did not think the child hugged her grandmother and was unsure that anything was said by the grandmother. The trial court denied the motion for mistrial.

Generally, the standard of review for a ruling on a motion for mistrial is abuse of discretion. Perez v. State, 919 So.2d 347, 363 (Fla. 2005) (citing Goodwin v. State, 751 So.2d 537, 546 (Fla. 1999)). “A motion for mistrial should be granted only when the error is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding.” Jennings v. State, 123 So.3d 1101, 1125 (Fla. 2013) (quoting Floyd v. State, 913 So.2d 564, 576 (Fla. 2005)). A mistrial “is a drastic remedy to be granted only when an error is so prejudicial as to vitiate the entire trial, and only when necessary to ensure the defendant receives a fair trial.” Jones v. State, 128 So.3d 199 (Fla. 1st DCA 2013); see also Salazar v. State, 991 So.2d 364, 372 (Fla. 2008); Power v. State, 605 So.2d 856, 861 (Fla. 1992).

In essence, the claimed error which was the basis for the mistrial motion was a violation of the rule of sequestration. “The rule of sequestration is intended to prevent the shaping of testimony by witnesses.” Dumas v. State, 350 So.2d 464, 465 (Fla. 1977) (citing Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)). Enforcement of the rule is a matter for the trial court’s discretion, and the rule should not be enforced in such a manner that it produces injustice. Lott v. State, 695 So.2d 1239 (Fla. 1997).

There is no doubt that it was improper for the child victim to be allowed to interact with her mother and grandmother (both of whom were also State witnesses) during the brief break in the proceedings. Even the trial court conceded such. Certainly the defense was prejudiced by the change in the child’s testimony. But, Appellant has not established that the change in testimony was the result of anything said or done during the break. That is, the Appellant has not established that the prejudice he experienced was a result of the error in allowing the child to interact with her mother and grandmother mid-trial.

The mother and grandmother, as State witnesses, were not present in the courtroom during the child’s testimony as the rule of sequestration had been invoked. They would not have known, therefore, that the child had been initially non-responsive to the prosecutor’s questions— unless the victim advocate told the mother and grandmother such, and Appellant does not allege such conduct by the victim advocate. Because there is no basis for finding that the mother and child colluded during the break and no basis for concluding the child fabricated her testimony (especially given the fact that her trial testimony after the recess was consistent with what the child previously told the Child Protective Team), there was no abuse of discretion in the denial of a mistrial. See Knight v. State, 746 So.2d 423 (Fla. 1998) (explaining purpose of rule of sequestration is to discourage fabrication, inaccuracy or collusion).

AFFIRMED.

OSTERHAUS, J., CONCURS, WINOKUR, J., CONCURS in part and DISSENTS in part.

WINOKUR, J.,

concurring in part and dissenting in part.

I concur in the denial of motions for rehearing, certification of conflict, and rehearing en banc. I have no objection to the substance of the substituted opinion because it properly addresses why the trial court’s denial of Heady’s mistrial motion should be affirmed. However, I cannot join the substituted opinion because I would deny Heady’s motion for written opinion as improper.

“When a decision is entered without opinion, and a party believes that a written opinion would provide a legitimate basis for supreme court review, the party may request that the court issue a written opinion.” Fla. R. App. P. 9.330(a). The purpose of a motion for written opinion is to provide a basis for supreme court review, not to require the Court to explain itself.

Heady’s motion for written opinion argues that “[t]he decision of this Court to affirm the denial of the motion is contrary to the mistrial standard set by the Florida Supreme Court in Ibar v. State, 938 So.2d 451, 470-471 (Fla. 2006) and Banks v. State, 46 So.3d 989, 997 (Fla. 2010).” In Ibar, the defendant moved for mistrial because a detective testified that the first lead in solving the case came from a police homicide unit, from which the jury could have inferred that Ibar was being held on another homicide. Ibar, 938 So.2d at 470. The supreme court, in reviewing the trial court’s denial of Ibar’s motion, cited well-established law on the standards for review of mistrial motions, and concluded that the trial judge did not abuse his discretion because Ibar never asked for a curative instruction. Id. Banks involved a mistrial motion following a witness implicating the defendant in an uncharged crime. Banks, 46 So.3d at 997. Citing the same general standards for review of mistrial orders as it did in Ibar, the supreme court ruled that the trial court did not abuse its discretion in denying the mistrial motion. Id. at 998.

Ibar and Banks merely applied familiar standards for review of mistrial motions; they did not establish any particular rules that the decision in this case may have violated. Other than involving review of a motion for mistrial, the issue in this case is unrelated to the issues in Ibar or Banks. Heady cited neither case in his briefs. Nor did Heady argue that the trial court violated some specific standard or requirement set forth in specific cases; he merely argued that the trial court erred in denying the mistrial motion. Under these circumstances, the contention that our unelabo-rated affirmance here is so contrary to Ibar and Banks that supreme court review is warranted is simply unreasonable.

The appellant in Unifirst Corp. v. City of Jacksonville, 42 So.3d 247, 248 (Fla. 1st DCA 2009), made a similar argument in moving for written opinion, arguing that this Court’s per curiam affirmance conflicted with an opinion issued by another district court of appeal and that clarification “would provide a legitimate basis for Supreme Court review.” Id. This Court held that “[i]t is meritless to argue that an opinion which says nothing more than ‘Affirmed’ conflicts with a written opinion issued by another district court.” Id.

The same is true here. The per curiam opinion was not “contrary to” Ibar or Banks, and a written opinion would not (and does not) demonstrate an express and direct conflict with Ibar or Banks. Again, while I do not dispute anything in the substituted opinion, I cannot join it because Heady has misused the motion for written opinion.

      . Appellant’s counsel calls these sentences “never-leave-prison-alive sentences” which is not the correct term. These sentences are for capital felonies, the maximum constitutional punishment for which is life imprisonment. See §§ 775.082(2) & 794.011(2)(a), Fla. Stat.; Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . The mother could have been present for the child’s testimony unless the trial court determined that her presence was prejudicial. § 90.616(2)(d), Fla. Stat.

       This point is proven by the substituted opinion itself. The substituted opinion applies the same well-known mistrial standards as cited in Ibar and Banks. No reasonable reading of the substituted opinion could conclude that it expressly and directly conflicts with Ibar and Banks to the extent that the supreme court review on that ground is justified. See Fla. R. App. P. 9.030(a)(2)(A)(iv).


text:
    STATE of Florida, Appellant, v. Thomas MURPHY, Appellee. Thomas Murphy, Appellant, v. State of Florida, Appellee.
    CASE NO. 1D12-4514, CASE NO. 1D12-4810
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for State of Florida.
    Andy Thomas, Public Defender, Richard M. Summa and Megan Long, Assistant Public Defenders, Tallahassee, for Thomas Murphy.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This court previously affirmed Thomas Murphy’s convictions and sentences for use of a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be a child in violation of section 847.0135(3)(b), Florida Statutes (2011), and for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child in violation of section 847.0135(4)(b), Florida Statutes (2011). See State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013). After issuance of that opinion, the Florida Supreme Court ruled that double jeopardy principles prohibit separate convictions for solicitation and traveling based on the same conduct. State v. Shelley, 176 So.3d 914, 919 (Fla. 2015).

In light of Shelley, the Florida Supreme Court quashed our opinion in Murphy. See Murphy v. State, No. SC13-2068, 2016 WL 1668953 (Fla. Apr. 27, 2016). Therefore, in accordance with the mandate from the supreme court, this cause is remanded to the trial court with instructions to vacate Murphy’s conviction and sentence for the lesser-included offense of solicitation as prohibited by section 847.0135(3)(b).

REMANDED with instructions.

LEWIS, OSTERHAUS, and JAY, JJ., CONCUR.


author: SILBERMAN, Judge.

text:
    Joseph Richard JACOBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4318
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.

      Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

After he admitted to violations of probation, the trial court revoked Joseph Richard Jacoby’s probation and sentenced him for grand theft (count two) and grand theft motor vehicle (count four). On appeal, Ja-coby challenges his sentence on count four of five years in prison suspended, to be served as five years’ probation. He contends that the trial court should have granted his motion to correct sentencing error and that his sentence on count four is unlawful because when combined with the previous incarcerative and probationary terms the new sentence exceeds the statutory maximum for a third-degree felony. Jacoby is not entitled to any credit from his prior probation which he did not serve, but we reverse the sentence on count four and remand for the trial court to impose the sentence with credit for time Jacoby previously served in prison on the charge. We affirm the revocation of probation on both counts and the sentence on count two.

Jacoby committed offenses in Polk County in December 2005. In accordance with a no contest plea in August 2007, the trial court imposed two concurrent terms of 15.8 months in prison to be followed by thirty-six months’ probation on counts two and four. The State nolle prossed counts one and three. After completing the prison term in 2007, Jacoby was sent to Pinellas County and served time in prison on unrelated charges. He remained in custody from his August 2007 sentencing date until he was released from the Pinellas County sentence on March 20, 2012. Jacoby’s probationary term of thirty-six months for the Polk County case was to begin on March 20, 2012.

In February 2015, Jacoby was arrested for illegal use of credit cards in Volusia County, and an affidavit of violation of probation (VOP) was filed in the Polk County case. The affidavit alleged a violation for failure to report to the probation officer after Jacoby’s release from prison in 2007 as of February 4, 2015; commission of the new law offense of illegal use of credit cards; and failure to report to his probation officer within seventy-two hours of his release from prison on March 20, 2012.

At the VOP hearing, Jacoby admitted to the violations in the affidavit. The trial court advised Jacoby that if he wished to contest any of the violations, the State had to prove the violations were willful. The court offered to set an evidentiary hearing. Jacoby declined the offer for an evidentia-ry hearing and stated that he wished to go forward with sentencing on the VOP. The trial court imposed a sentence of thirty months in prison on count two with credit for all time served. On count four, the trial court imposed a suspended sentence of five years in prison to be served as five years of probation. The revocation order reflects that Jacoby admitted all the violations stated in the affidavit.

Jacoby filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He asserted that he was entitled to credit for time previously served in prison and on probation for the suspended sentence of five years’ probation on count four because without the credit the sentence exceeds the statutory maximum for a third-degree felony. He contended that he was entitled to 15.8 months’ credit for time previously served in prison and to 31.4 months’ credit for time previously served on probation.

After receiving a response from the State, the trial court denied the motion, stating that Jacoby was ineligible for probationary credit because his probationary period tolled when he absconded by failing to report. Neither the response nor the order expressly addressed the issue of credit for time previously served in prison.

On appeal, the parties agree that Jacoby’s probationary period commenced on March 20, 2012. Jacoby contends that he was “technically” on probation for 31.4 months before the VOP affidavit was filed and that he is entitled to 31.4 months’ credit against his current five-year period of probation. When probation is revoked, a defendant is entitled to credit for time previously served on probation for a subsequent probationary term for the same offense if it is necessary to ensure that the total probationary term does not exceed the statutory maximum for the offense. Young v. State, 697 So.2d 75, 77 (Fla. 1997); State v. Summers, 642 So.2d 742, 744 (Fla. 1994); see also § 948.06(3), Fla. Stat. (2015). But “when a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision.” Kimball v. State, 890 So.2d 495, 496 (Fla. 5th DCA 2004); see also Badger v. State, 23 So.3d 813, 817 (Fla. 2d DCA 2009).

Here, Jacoby never actually served any time on his original probationary term of thirty-six months. He admitted to the violations in the affidavit, and the trial court revoked probation based on the violations in the affidavit. The affidavit asserted that Jacoby did not report within seventy-two hours of his release from prison in 2012 and that he never reported at all up to the date the affidavit was filed in February 2015. Because Jacoby did not serve any time on probation, the trial court correctly denied any probationary credit toward Jacoby’s new probationary term.

With respect to prison credit, upon revocation of the probationary term of a probationary split sentence, the trial court may impose any sentence the court “might have originally imposed with credit for time served.” Young, 697 So.2d at 77; see also § 948.06(2)(b); McCall v. State, 88 So.3d 1015, 1015-16 (Fla. 2d DCA 2012). The State recognizes that if Jacoby had been sentenced upon revocation of his probationary split sentence to a new prison sentence that he would have been entitled to credit for prison time previously served. See, e.g., McCall, 88 So.3d at 1015-16; Swain v. State, 845 So.2d 314, 315 (Fla. 2d DCA 2003). The State contends that Jaco-by is not entitled to credit for prison time previously served toward his new probationary term of five years for a third-degree felony.

Based on this court’s opinion in Hernandez v. State, 889 So.2d 913 (Fla. 2d DCA 2004), Jacoby is entitled to the prison credit for time previously served. In Hernandez, the defendant originally received a probationary split sentence for DUI manslaughter of seven years in prison with credit for time served, to be followed by eight years of probation. Id. at 914, The court revoked the probation and imposed a new ten-year term of probation. Because the defendant had served less than five years of combined prison, jail, and probation before he was placed on the new ten-year term of probation, the sentence was less than the statutory maximum of fifteen years for a second-degree felony. Id. at 915. Thus, the trial court was not required to give credit for any time served on that offense “because the new probationary sentence added to the time he already served in prison or jail or on probation did not exceed the statutory maximum.” Id. In doing so, this court stated that upon revocation the trial court imposed a straight probationary term, and thus the defendant “would be entitled to credit for both prison/jail time served and time served on probation if necessary to insure that the total term of probation did not exceed the statutory maximum for that offense.” Id.

Here, the new probationary term is the statutory maximum of five years for the third-degree felony of grand theft motor vehicle. See §§ 775.082(3)(d), 812.014(2)(c)(6), Fla. Stat. (2005). Thus, because Jacoby served a prior prison term on the same charge that would increase the total term to over the statutory maximum, he is entitled to credit for time previously served in prison. See Hernandez, 889 So.2d at 914-15. Jacoby contends that he is entitled to a credit of 15.8 months—the prison sentence that the trial court originally imposed. But section 948.06(7) provides for the forfeiture of gain time upon revocation of the probationary portion of a split sentence for the gain time earned up to the date of release on probation. See Gibson v. Fla. Dep’t of Corrs., 885 So.2d 376, 380 (Fla. 2004); see also Hernandez, 889 So.2d at 916 n.4 (“After October 1, 1989, credit for time served in prison refers only to time actually served and not to gain time.”). Therefore, Jacoby would not be entitled to credit for the full 15.8 months if he obtained an early release due to gain time. Instead, he is entitled to credit for the time he actually served in prison.

In summary, we affirm the revocation of Jacoby’s probation on both counts and his sentence on count two. We reverse Jaco-by’s suspended sentence on count four of five years in prison to be served as five years of probation and remand for the trial court to impose the sentence with credit for time previously served in prison on that charge of grand theft motor vehicle.

Affirmed in part, reversed in part, and remanded.

SLEET and BADALAMENTI, JJ„ Concur.


author:
TORPY, J.
      BERGER, J.,

text:
    STATE of Florida, Appellant, v. Jordan Christopher BEANS, Appellee.
    Case No. 5D16-647
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 31, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nicole J. Martingano, Assistant Public Defender, Daytona Beach, for Appellee.
   TORPY, J.

The State challenges the order suppressing a firearm and cannabis found in Appellee’s car. The sole argument advanced by the State is that the encounter between Appellee and police officers was, as a matter of law, consensual. Accordingly, it urges that the trial court erred in concluding that Appellee was seized prior to the discovery of incriminating evidence in his car. Concluding that no error has been demonstrated on the legal theory advanced by the State, we affirm.

The uniformed police officers here responded to a complaint involving noise coming from Appellee’s apartment. Upon arrival, they knocked on the door. When Appellee opened the door, they could smell the odor of burning marijuana. Appellee, upon seeing the officers, immediately slammed the door. As one of the officers characterized the encounter: “he slammed the door in my face quite rudely.” At that point, the officers continued to knock on the door “[b]ecause we could smell marijuana coming from the apartment.” Appel-lee did not open the door again. Although the officers left the building, they remained in the complex parking lot and pondered whether to get a search warrant. After a few minutes, the officers saw Ap-pellee and a female walk down the stairs, enter a car, and drive away. They followed him in a marked police car through a series of turns until Appellee stopped in a drive-thru at a fast-food restaurant. The officers followed Appellee because “[Appel-lee and his companion] could have taken whatever marijuana was in the apartment with them in the car .... And [the officers] wanted to ask [Appellee] why he slammed the door in [their’] face[s].”

The two officers approached Appellee’s car within thirty seconds after it stopped in the drive-thru. Appellee’s car was positioned behind another car in the drive-thru, preventing him from driving forward. One officer approached the driver’s side of Appellee’s car; the other walked behind the car and approached the passenger’s side. The officer on Appellee’s side immediately confronted him with the question “why he had slammed the door in [their] face.” Appellee appeared noticeably nervous when confronted by the officer. Although Appellee testified that he did not feel free to leave at that point, the officer testified that Appellee was in fact free to leave, although he did not communicate that fact to Appellee. During the ensuing conversation, Appellee moved his foot, which revealed a concealed firearm and culminated in his arrest and the search of the car.

Below, the State conceded a lack of reasonable suspicion to confront Appel-lee. The only legal argument it advanced was that the encounter between police and Appellee was consensual, and this is the only issue we address here. A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the appellate court must interpret the evidence and reasonable inferences therefrom in a manner most favorable to sustaining the ruling. State v. Watson, 187 So.3d 349, 351 (Fla. 5th DCA 2016) (citing Pritchard v. State, 987 So.2d 204, 205 (Fla. 5th DCA 2008)). While the trial court’s factual findings are reviewed for substantial, competent evidence, its application of the law to the facts is reviewed de novo. State v. Thomas, 109 So.3d 814, 817 (Fla. 5th DCA 2013) (citing McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001)).

Appellee’s belief that he was not free to leave is not dispositive of our analysis because we use the objective standard of what a reasonable person would have believed under the totality of the circumstances. See Caldwell v. State, 41 So.3d 188, 196-97 (Fla. 2010) (seizure analysis does not depend on what particular suspect believed, but on whether officer’s words or actions “would have conveyed to a reasonable, innocent person that he was not free to leave” (citing Florida v. Bostick, 501 U.S. 429, 437-38, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991))). “[T]he crucial test is whether, taking into account all of the circumstances sun-ounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Bostick, 501 U.S. at 437, 111 S.Ct. 2382 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). In reaching this conclusion, the courts look at many factors, none of which is individually dispositive. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).

Here, a number of factors cause us to conclude that the encounter was not objectively consensual. First, Appellee was initially confronted at his home by two uniformed police officers. See United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017) (confrontation in non-pub-lie place or presence of more than one police officer, wherever confrontation occurs, militate against finding consensual encounter). Second, the words used by the officers were accusatory in nature, rather than general questions, suggesting that Appellee was not free to leave. See United States v. Ward, 961 F.2d 1526, 1532 (10th Cir. 1992) (officers asking accusatory questions rather than general inquiries suggests that person is not free to leave), overruled on other grounds by United States v. Little, 18 F.3d 1499, 1504 (10th Cir. 1994). Third, the officers did not tell Appellee that he was free to leave. Id. at 1533 (failure of police to advise person he is free to leave is factor militating against consensual encounter). Finally, and the factor that we deem most significant here, not only did police not tell Appellee that he was free to go about his business, they manifested quite the contrary through their conduct. Despite a clear manifestation by Appellee that he had no interest in talking to police, they continued to attempt to make contact with him by knocking on his door after he shut it, following him in a marked police car through several turns, and approaching him on foot in the drive-thru. See United States v. Wilson, 953 F.2d 116, 122 (4th Cir. 1991) (police “persistence” in attempting to question defendant after clear manifestation of intent to terminate encounter conveys to reasonable person that he is not free to leave); see also United States v. Jerez, 108 F.3d 684, 692 (7th Cir. 1997) (persistent knocking by police on motel door and window “in the face of the refusal to admit, transformed ... [attempted] consensual encounter into an investigatory stop”).

The factor on which the State and our dissenting colleague rely—that police did not themselves restrict Appellee’s movement—is only one factor and is by no means more dispositive than any other factor. See Rios v. State, 975 So.2d 488, 490 (Fla. 2d DCA 2007) (restraining movement is one indication of investigatory stop). The trial judge afforded little if any weight to this factor, concluding that Ap-pellee could not back up without risking injury to the officers caused by the side-mounted mirrors. The dissent challenges the record basis for this conclusion, which was addressed only in argument of counsel. We think this was a reasonable inference from the record or, at a minimum, a proper subject for judicial notice of generally known facts.

Even if this particular finding was erroneous, we nevertheless agree with the trial judge’s conclusion that little weight should be given to this factor. Appellee’s easiest and safest route of departure was impeded by the car in front of him, and he was blocked by the second officer’s approach from behind the vehicle, preventing him from avoiding the encounter before it began. Once the encounter began, to expect a reasonable driver to terminate an encounter by attempting to back a vehicle out of a drive-thru while two officers stand straddled on both sides, running the risk of injury to the officers, is an inherently undue burden. Furthermore, there was little reason for Appellee to believe that another attempt to terminate the contact with these two persistent officers would be any more successful than the first. They apparently were not inclined to take “no” for an answer, for obvious reasons. Accordingly, even if this one factor weighs in favor of the State’s position, we conclude that it is outweighed by the other factors we have addressed.

AFFIRMED.

ORFINGER, J., concurs.

BERGER, J., dissents with opinion.

BERGER, J.,

dissenting.

This case involves the suppression of a firearm, found in plain view, during a police encounter in the drive-thru lane at a fast-food restaurant. The trial court suppressed the firearm after concluding the officers had unlawfully detained Appellee. In my view, this conclusion is not supported by the evidence. Accordingly, I dissent.

There are three types of police/citizen encounters: (1) consensual encounters; (2) investigatory stops; and (3) arrests. State v. Bullock, 164 So.3d 701, 704 (Fla. 5th DCA 2015) (citing Popple v. State, 626 So.2d 185, 186 (Fla. 1993)). In a consensual encounter, a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave, consensual encounters involve only minimal police contact and do not intrude on any constitutionally protected interest under the Fourth Amendment. Blake v. State, 939 So.2d 192, 194 (Fla. 5th DCA 2006) (quoting Popple, 626 So.2d at 186); State v. Simons, 549 So.2d 785, 786 (Fla. 2d DCA 1989); see also State v. Meachum, 196 So.3d 496, 498 (Fla. 1st DCA 2016) (“Consensual encounters do not require any suspicion of criminal activity, and ’police officers do not violate the prohibition on unreasonable searches and seizures simply by approaching individuals on the street and asking them to answer a few questions.’” (quoting Caldwell v. State, 41 So.3d 188, 196 (Fla. 2010))); Brown v. State, 577 So.2d 708, 709 (Fla. 2d DCA 1991) (noting that an officer needs no founded suspicion to approach a parked vehicle and talk to its occupants). During an investigatory stop, “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Blake, 939 So.2d at 194-95 (quoting Popple, 626 So.2d at 186). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Id. Arrests require the police to have probable cause to believe that a crime has been committed or is being committed. Simons, 549 So.2d at 786.

As the majority outlines, the encounter in this case occurred sometime after Ap-pellee slammed his apartment door in the officers’ faces after they knocked on it while responding to a noise complaint. The following relevant facts, which occurred after the initial encounter, were summarized in the trial court’s order:

The officers then returned to their vehicle, and upon seeing Defendant and a female leaving the apartment in a car they followed the Defendant’s vehicle to a fast-food restaurant where the Defendant entered into the drive-thru lane. The officers parked their marked patrol vehicle in a parking space at least sixty feet away and then walked over to the Defendant’s car while it was still in the drive thru lane behind a car. Officer Rogers walked up to the driver’s side of the vehicle “to ask the Defendant why he slammed the door in his face,” while the other officer walked behind the vehicle and stood on the passenger side. The Defendant’s car windows were down and at no time did the officers command the occupants to exit the vehicle. While standing at the passenger’s side of the vehicle, Officer Fink, noticed the Defendant’s feet “shuffling”, and then noticed a firearm near his feet. Officer Fink informed Officer Rogers about the firearm and a bag of suspected cannabis, at which time the Defendant was arrested for carrying a concealed firearm.

On this evidence, the trial court determined the officers had illegally stopped Appellee and blocked his ability to terminate the encounter. See Simons, 549 So.2d at 787 (noting that “a significant identifying characteristic of a police encounter is that the officer cannot hinder or restrict the person’s freedom to leave .... ” (citing Lightbourne v. State, 438 So.2d 380 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984))). The trial court reasoned:

Upon leaving [the apartment], ‘the officers were required to have reasonable articulable suspicion that criminal activity was afoot in order to conduct a legal stop of the Defendant’s vehicle. In order to determine whether the officers’ actions constituted more than a consensual encounter, an appropriate inquiry is whether a reasonable person standing in the Defendant’s shoes would feel free to terminate the encounter. Here, testimony by the Defendant and officers provided that Defendant pulled into the drive-thru lane behind another car, that one officer walked behind his vehicle and then each officer stood on each side of the car. The Defendant could not pull forward because of the car in front of him, and could not back up because his side mirrors would have hit the officers.

Considering all the circumstances, I cannot conclude that the conduct of these two officers would lead Appellee to reasonably believe he was not free to terminate the encounter. See State v. Rasparian, 937 So.2d 1273, 1275 (Fla. 4th DCA 2006) (“To determine whether there has been a consensual encounter, a court must consider all of the circumstances surrounding the encounter to determine whether the conduct of police officers would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” (citing State v. Livingston, 681 So.2d 762, 764 (Fla. 2d DCA 1996))). The encounter at the apartment was relatively uneventful. Although, by happenstance, the officers noticed Appellee leave and decided to follow him, nothing in the record suggests Appellee knew he was being followed. Appellee pulled into the drive-thru lane, behind another car, with his windows down. No car was behind him. The officers parked in a space sixty feet away and approached Appellee’s car on foot from the side. The officers did not threaten Appellee in any way, order him out of the car, block him in, or otherwise try to intimidate him. One officer simply asked why Appellee slammed the door in his face.

The trial court’s finding that Appellee would have hit the officers with his mirrors if he had attempted to leave is speculative, at best, and is simply not supported by the evidence. See Meachum, 196 So.3d at 497 (finding no evidence officers blocked defendant’s egress from parking lot where one officer approached the driver’s side of the vehicle and the other went to the rear to obtain tag information). Without more, no competent, substantial evidence exists in the record to suggest Appellee’s freedom to back up and leave, or otherwise terminate the encounter, was hindered or restricted by the police or anything else. Therefore, I would reverse the trial court’s order granting Appellee’s motion to suppress.

      . The officers testified that when Appellee opened the door, they smelled the odor of burnt cannabis coming from the apartment.

      . Appellee certainly understood he could terminate the initial encounter when he slammed the door on the officers. In a similar vein, he simply could have rolled up his car window to signal to the officers that he did not wish to talk.

      . It is reasonable to conclude Appellee waited until he thought the officers were gone before deciding to leave to get food.

      . Despite the majority’s attempt to paint a different picture, there was no evidence presented at the hearing to suggest the officers were following directly behind Appellee or that the Appellee saw them. It was well after midnight and the patrol car’s lights and siren were not activated.

      .While the majority discounts this finding, it appears to be the basis for the trial court’s ruling.


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Scott Brandon HAYWARD, Appellee.
    Case No. 5D16-1717
    District Court of Appeal of Florida, Fifth District.
    Opinion file March 31, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

The State appeals an order suppressing evidence secured pursuant to a search warrant. Because there was probable cause to support the search warrant, we reverse.

The search warrant affidavit was executed by Detective Kuzma on October 7, 2015. Kuzma averred that there was probable cause to believe that cocaine and methamphetamine were being kept at the residence of Appellant, Brandon Hayward, and his girlfriend. After detailing his experience and training, Detective Kuzma attested that earlier that day, he and other officers had used a confidential source to conduct a controlled purchase of four ounces of cocaine from Hayward for $4800. The confidential source requested that Hayward deliver the cocaine to him at a certain IHOP parking lot. Hayward told the confidential source that the delivery would be made in fifteen to twenty minutes.

At the time Hayward received the call from the confidential source, he was under "surveillance by Detective Kuzma and another officer. Detective Kuzma observed Hayward drive from a shopping plaza to his residence. Hayward then exited his car arid entered his residence. Approximately fifteen minutes later, Hayward and his girlfriend left their residence and drove to the designated IHOP parking lot. After parking the car, Hayward exited the vehicle while his girlfriend remained in the passenger seat. When uniformed police officers approached Hayward, he unsuccessfully attempted to flee. During the short-lived chase, Hayward threw a clear plastic bag containing suspected cocaine. Kuzma tested the suspected cocaine recovered from the discarded plastic bag using a field presumptive test kit. The field presumptive test indicated a positive reaction to the presence of cocaine. The bag of cocaine weighed 113 grams, or roughly four ounces.

A search of Hayward’s vehicle was conducted and resulted in the discovery of another bag of powder cocaine, a bag of methamphetamine, an electronic scale, and a bag of small blue plastic baggies, all located in the center console of the vehicle. The bag of cocaine weighed 46.9 grams and the bag of methamphetamine weighed 16.5 grams.

Detective Kuzma concluded his affidavit by reciting, “Your Affiarit believes based on his investigation, that additional controlled substances, evidence of distribution of controlled substances, and proceeds from the sale/delivery of controlled substances is stored'inside [Hayward’s] residence.” The séarch warrant was executed later that day and resulted in the seizure of approximately 274 grams of cocaine.

Hayward and his girlfriend were jointly charged with trafficking in 28 or more grams of cocaine, trafficking in 200 or more grams of cocaine, trafficking in a controlled substance, conspiracy to traffic in 200 or more grams of cocaine, and possession of drug paraphernalia. Hayward was also charged with resisting an officer without violence.

Hayward filed a motion to suppress" the evidence seized in his residence, asserting that the search warrant affidavit did not contain sufficient facts to establish probable cause that contraband would be found in his residence. At the hearing on the motion to suppress, the trial court heard very brief testimony from Hayward and Detective Kuzma. To establish his standing to contest the warrant, Hayward testified that he lived at the apartment that was the subject of the search warrant. Detective Kuzma testified that everything he included in the search warrant affidavit was true and accurate and that he did not omit any information.

The trial court granted Hayward’s motion, finding that the nexus needed to search Hayward’s apartment was not established. The court determined that there were insufficient grounds to establish probable cause to search Hayward’s apartment and that the good faith exception did not apply because the affidavit was “completely void of any indicia of probable cause to search Hayward’s residence.” The State timely appealed the order.

We conclude that Detective Kuz-ma’s affidavit was sufficient to establish probable cause for the search warrant. Here, Hayward told the confidential source that he would deliver drugs to him in fifteen to twenty minutes. He then drove to his apartment, remained there for fifteen minutes, and then drove directly to the meeting place. He was apprehended with a large quantity of cocaine. Other drugs and paraphernalia were located in his vehicle. The police searched Hayward’s apartment later that day. Under these facts, the circumstantial proof of a nexus was sufficient. The police had Hayward under surveillance from the time he spoke to the confidential source until the point of delivery. Hayward told the confidential source that he would meet him in fifteen to twenty minutes. During that brief interval, he drove to his apartment, where he remained for a short period before meeting the confidential source. Although there may be other reasons why Hayward stopped at his apartment before meeting the confidential source, a logical inference is that he went there to get the drugs.

Apart from the surveillance, other inferences from the nature of the crime also support the finding of probable cause to search the apartment. Hayward agreed to deliver four ounces of cocaine, a substantial quantity of drugs. It is reasonable to infer from a transaction such as this that Hayward maintained a supply of drugs for delivery, instruments with which to package the drugs, and a large quantity of cash proceeds from drug sales at his residence. In State v. Weil, 877 So.2d 803 (Fla. 5th DCA 2004), we addressed the nexus between a crime and a suspect’s residence to support a probable cause determination to search the residence. There, the defendant committed an abduction and sexual battery using a police badge, handcuffs, and a gun. Id. at 804. Even though there was no direct evidence to link his residence to the crime, we concluded that, because it may be inferred that these items would be stored in the defendant’s residence, there existed probable cause for the search. Id. at 805-06. Similarly, in this case, the magistrate could reasonably infer from the circumstances that Hayward was likely secreting the instrumentalities and proceeds of his illicit drug dealing at his home.

Even if we were to hold that Detective Kuzma’s affidavit failed to establish probable cause to search Hayward’s apartment, we would conclude that application of the good faith exception would require reversal of the trial court’s order. The good faith exception to the exclusionary rule precludes the suppression of evidence secured pursuant to an invalid warrant where the officer who conducts the search does so in objectively reasonable reliance on the validity of the warrant. State v. McGill, 125 So.3d 343, 351 (Fla. 5th DCA 2013) (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).

In the instant case, Hayward argues that the good faith exception should not apply because Detective Kuzma’s affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” We reject this argument. Detective Kuzma’s affidavit set forth numerous facts that would, at a minimum, establish sufficient indicia of probable cause to justify an officer’s reasonable belief in the existence of probable cause.

REVERSED and REMANDED.

TORPY and LAMBERT, JJ., concur.


author: BERGER, J.

text:
    STATE of Florida, Appellant, v. Isaac L. ANDERSON, Jr., Appellee.
    Case No. 5D16-462
    District Court of Appeal of Florida, Fifth District.
    Opinion file March 31, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    David Frakt, of Law Office of David Frakt, Orlando, for Appellee.
   BERGER, J.

The State of Florida appeals an amended final order granting Grounds Three and Eight of Isaac Anderson’s postconviction motion alleging ineffective assistance of trial counsel. See Fla. R. Crim. P. 3.850. The State argues that the postconviction court erred in vacating two of Anderson’s convictions: namely, Count Three, fleeing and eluding, and Count Four, resisting arrest without violence because the ineffective assistance of counsel claims raised in Grounds Three and Eight do not concern those convictions. We agree and reverse.

Anderson was found guilty at trial of two counts of aggravated battery on a police officer with a deadly weapon (Counts One and Two), one count of fleeing and eluding, and one count of resisting arrest without violence. The charges arose after officers in marked police vehicles performed a dynamic takedown of the stolen Ford Focus that Anderson was driving. The takedown resulted in multiple collisions between the Ford Focus and two police cars. After these initial collisions, Anderson fled., Officers, aided by an Orange County Sheriffs Office chase helicopter, pursued Anderson for over five miles until he stopped the Ford Focus in the Pine Hills neighborhood of Orlando. Once stopped, the Ford Focus was rear-ended by a pursuing police car. Anderson and his passenger, Laron Johnson, jumped out of the car and fled on foot. They were apprehended a short time later.

After his convictions and sentences had been affirmed, Anderson moved for post-conviction relief, raising eleven grounds. Only Grounds Three and Eight are relevant to this appeal.

Ground Three argued that his trial counsel was ineffective for failing to interview and call Johnson as a witness at trial. According to Anderson, Johnson’s testimony would have contradicted the testimony of the police officers regarding the- damage to the Ford Focus as it related to the aggravated battery counts. Ground Eight alleged that Anderson’s trial counsel was ineffective for failing to hire and present testimony from an accident reconstruction expert.

After holding an evidentiary hearing, the posteonvietion court granted Anderson’s motion and vacated and set aside his judgment and sentences. The State filed a motion seeking clarification as to the specific grounds on which the post-conviction court granted the motion and, since the motion only addressed the aggravated battery convictions, whether the postconviction court intended to vacate Anderson’s convictions for fleeing and eluding and resisting without violence.

In an amended order, the postconviction court clarified that it had granted relief on Grounds Three and Eight only, that it had summarily denied all the other grounds, and that it had vacated Anderson’s convictions on all four counts. This appeal followed.

Ineffective assistance of counsel claims present mixed questions of law and fact. Hitchcock v. State, 991 So.2d 337, 346 (Fla. 2008) (citing Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004)); Stephens v. State, 748 So.2d 1028, 1031-32 (Fla. 1999) (citing Rose v. State, 675 So.2d 567 (Fla. 1996)). Deference is given to the postcon-viction court’s factual findings if they are supported by competent substantial evidence in the record. Hitchcock, 991 So.2d at 346 (citing Sochor, 883 So.2d at 771-72); State v. Coney, 845 So.2d 120, 132-33 (Fla. 2003) (citing Stephens, 748 So.2d at 1031-34). The postconviction court’s legal conclusions and its application of the law to the facts are reviewed de novo. Hitchcock, 991 So.2d at 346 (citing Sochor, 883 So.2d at 771-72); Coney, 845 So.2d at 132-33 (citing Stephens, 748 So.2d at 1034).

Defense counsel renders ineffective assistance of counsel “when counsel’s performance falls outside the range of reasonable professional assistance and when there is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance.” Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This standard requires the defendant to show, first, that his trial counsel’s performance was deficient such that it falls below the minimum standard of reasonableness set by the Sixth Amendment to the United States Constitution and, second, prejudice arising from that deficient performance. Morris v. State, 931 So.2d 821, 827-28 (Fla. 2006) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

The attorney’s performance is analyzed with great deference under an objective standard of reasonableness. Bradley v. State, 33 So.3d 664, 671 (Fla. 2010). An attorney’s performance is constitutionally acceptable if the attorney renders reasonably competent and effective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (citing Trapnell v. United States, 725 F.2d 149, 151-52 (2d Cir. 1983)). Mistakes and errors made by counsel, including unreasonable errors, are not sufficient to set aside the judgment unless the error actually prejudiced the defendant by affecting the judgment. Id. at 687, 691-92, 104 S.Ct. 2052 (citing United States v. Morrison, 449 U.S. 361, 364-65, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981)).

Prejudice in the ineffective assistance of counsel analysis can be established only when the error alleged in the grounds for relief affects the validity of the conviction and sentence at issue such that there is a reasonable probability that the outcome of the trial would have been different. See id. at 694, 104 S.Ct. 2052; see also Edwards v. State, 410 So.2d 635, 635 (Fla. 1st DCA 1982) (finding that denial of relief under rule 3.850 was proper where deficient performance of defendant’s trial counsel in failing to advise defendant of deadline to appeal and right to counsel on appeal was not prejudicial because it did not affect validity of defendant’s conviction and sentence); cf. Commonwealth v. Tavernier, 76 Mass.App.Ct. 351, 922 N.E.2d 166, 169, 171-78 (2010) (granting postcon-viction relief motion and vacating convictions on over a dozen counts where guilty pleas were not supported by adequate plea colloquy but affirming on two counts where plea colloquy adequately supported guilty plea). The prejudice analysis must be determined in the context of the entire record of the case. Occhicone v. State, 768 So.2d 1037, 1041 (Fla. 2000) (citing Haliburton v. Singletary, 691 So.2d 466, 470 (Fla. 1997)).

Here, the State does not challenge the postconviction court’s finding of deficient performance. We, therefore, turn our attention to whether counsel’s failure to call Johnson and the accident reconstruction expert as witnesses resulted in prejudice to Anderson as it relates to his convictions for fleeing and eluding and resisting without violence. We conclude it did not.

Anderson admitted at trial that he fled the scene of the initial collisions and that he fled on foot after the collision at the end of the car chase because he was paranoid and thought the police would kill him based on news reports he had read about the Orlando Police Department. This admission precludes a finding that Anderson was prejudiced by his trial counsel’s failure to call Johnson as a witness. Cf. United States v. Ausmus, 774 F.2d 722, 727 (6th Cir. 1985) (finding in income tax evasion case that prejudice prong of Strickland was not met where defendant admitted on cross-examination that his failure to pay income taxes “was not accidental, negligent, or inadvertent”); Gibson v. State, 835 So.2d 1159, 1161 (Fla. 2d DCA 2002) (noting there was no prejudice because defendant admitted to offense in police interview).

Moreover, Ground Three of Anderson’s motion did not allege that Johnson’s testimony would have had any impact on Anderson’s convictions for fleeing and eluding and resisting without violence. Likewise, Ground Eight did not affect those convictions either because Anderson’s motion did not allege that the accident reconstruction expert’s testimony would have had any bearing on the events that occurred after the initial collisions between the police cars and the Ford Focus. Indeed, the expert testified at the evidentiary hearing that he did no analysis of damage to the Ford Focus that occurred after the initial collisions.

Accordingly, because Grounds Three and Eight of Anderson’s rule 3.850 motion factually relate only to his aggravated battery convictions, we reverse that portion of the postconviction court’s order vacating Anderson’s convictions for fleeing and eluding and resisting without violence. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

LAMBERT and EDWARDS, JJ„ concur.

      . The State did not appeal the portion of the postconviction court’s order vacating Anderson’s convictions on Counts One and Two for aggravated battery on a law enforcement officer with a deadly weapon.

      . The State's theory at trial on the aggravated battery counts was that Appellant used the Ford Focus as a deadly weapon and rammed it head on into the police cars to move them out of the way and make good his escape. The State’s version of the facts evolved over the course of the postconviction proceedings, particularly after the State’s theory of the case and the testimony of the police officers were contradicted by post-collision photographs of the Ford Focus, taken by the owner’s auto insurer, that showed no damage to the front of the Ford Focus.

      . Before Anderson's trial, Laron Johnson pled guilty to a misdemeanor resisting without violence charge in connection with the incident.

      . Anderson's claim that Johnson’s testimony would establish a defense to the fleeing and eluding count is spurious. Fear of the police as a defense would eviscerate the crime and certainly does nothing to establish a defense of necessity or duress, particularly when Anderson’s trial testimony leaves no doubt that he knew he was fleeing law enforcement officers. See § 776.051(1), Fla. Stat. (2011); Rowley v. State, 939 So.2d 298, 300 (Fla. 4th DCA 2006).

      . Anderson also contends that the postconviction court should have granted relief on the Brady claims in Ground Two of the rule 3.850 motion. Anderson's argument on Ground Two is procedurally barred because Anderson did not file a cross-appeal. See State v. Jimenez, 173 So.3d 1020, 1023 n.3 (Fla. 3d DCA 2015); State v. Nicholson, 819 So.2d 908, 910 (Fla. 4th DCA 2002); see also MacKenzie v. Centex Homes, 208 So.3d 790, 792-93 (Fla. 5th DCA 2016) ("A cross appeal is the proper method to seek review of an earlier non-final order when the final order is entirely favorable to the appellee.” (citing Fla. R. App. P. 9.130(g), (h))); Allen v. TIC Participations Tr., 722 So.2d 260, 261 (Fla. 4th DCA 1998). As Anderson is arguing for the reversal of the summary denial on Ground Two as an alternative ground to affirm the rest of the order, the tipsy coachman doctrine would not apply. See MacKenzie, 208 So.3d at 793 n.3.