author: SILBERMAN, Judge.

text:
    Yousel L. RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-4742
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017

      Ana M. Davide of Law Offices of Ana M. Davide, P.A., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Yousel L. Rivera appeals his judgment and mandatory life sentence for attempted first-degree murder of a law enforcement officer with a firearm. He raises five issues on appeal, but we discuss the only one that requires reversal. Based on Ramroop v. State, 214 So.3d 657 (Fla. 2017), we reverse and remand for a new trial because the trial court failed to give the requested jury instruction regarding whether Rivera had knowledge that the victim was a law enforcement officer.

The offense arose as the result of a traffic stop during which Rivera was a passenger. When the officer walked around to the passenger side, Rivera shot the officer three times in the torso at close range. Rivera was charged in an amended information pursuant to sections 782.04(1), 777.04, 775.087, 775.0823, 784.07, and 782.065, Florida Statutes (2010), with one count of attempted first-degree murder of a law enforcement officer with a firearm during which Rivera discharged a firearm and caused great bodily harm. Under section 775.087(2)(a)(3), if the jury finds beyond a reasonable doubt that the defendant committed an enumerated offense and as a result of the discharge of a firearm the defendant caused great bodily harm, the defendant must be sentenced to a minimum term of twenty-five years in prison and not more than a term of life in prison. Under section 782.065, if the jury finds beyond a reasonable doubt that the defendant committed attempted first-degree murder and that the victim of the offense was a law enforcement officer engaged in the performance of a legal duty, the defendant must be sentenced to life in prison.

The defense theory was that Rivera lacked the intent to shoot the officer. The defense expert, Dr. Waldman, opined that Rivera was suffering from complex partial seizures at the time of the shooting and afterward when he was arrested and that the shooting was an automatism, an automatic but not conscious behavior. When discussing things consistent with seizure activity, Dr. Waldman mentioned statements from Rivera’s ex-girlfriend indicating that Rivera had become hyperreligious, that he thought “people were out to harm him,” and that he thought “demons were going to possess him.” Dr. Waldman testified that Rivera was in fear at the time of the shooting; the doctor believed the fear began when the officer shined a flashlight in Rivera’s eyes right at the time of the shooting.

In contrast, the State’s expert, Dr. Shadle, opined that based on eyewitness accounts and the video of the shooting Rivera’s actions were inconsistent with a seizure or automatism but rather “showed the intentionality of the shooting” and the “goal-directness of the shooting.” Dr. Shadle opined that Rivera could have formed the conscious intent to shoot and kill the officer.

The parties stipulated at trial that the victim was a law enforcement officer engaged in the lawful execution of his legal duties. Rivera objected to the jury instructions and requested a jury instruction that the State had to prove Rivera knew that the victim was a law enforcement officer. The trial court denied the request. Consistent with the trial court’s ruling on the jury instructions, the verdict form did not require the jury to find that Rivera knew the victim was a law enforcement officer.

While this appeal has been pending, the Florida Supreme Court decided Ramroop. Under the “pipeline rule” the appellate court should dispose of a case on appeal “in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.” Bledsoe v. State, 764 So.2d 927, 928 (Fla. 2d DCA 2000) (quoting Nolte v. State, 726 So.2d 307, 308 (Fla. 2d DCA 1998)).

In Ramroop, the Florida Supreme Court held “that section 782.066 is a reclassification statute that creates a substantive offense, which includes knowledge as ah essential element.” 214 So.3d:at 666. Because knowledge is an essential element, “a defendant may be subject to the increased sentence set forth in section 782.065 only when a jury finds beyond a reasonable doubt that the offense was committed with knowledge that the victim was a law enforcement officer.” Id. The supreme court determined that “the erroneous jury instructions that did not include knowledge as an essential element of attempted murder of a law enforcement officer as to section 782.065 amounted to fundamental error” and that Ramroop was entitled to a new trial. Id. at 668. '

Here,' Rivera requested a jury instruction on the essential element of knowledge. In addition, whether Rivera had knowledge that the victim was a law enforcement officer at the timé of the shooting was a disputed issue based on the defense that Rivera was suffering from a complex partial seizure and that the shooting was an automatism, an automatic but not conscious behavior. Thus, because the essential element of knowledge was in dispute, the failure to properly instruct the jury on the element of knowledge amounts to fundamental error. See id. at 665.

At the time it filed its answer brief, the State recognized that Ramroop was pending in the Florida Supreme Court and agreed that the jury must make the finding that the defendant had knowledge of the victim’s status as a law enforcement officer. The State contended that resen-tencing for the underlying conviction without the reclassification regarding a law enforcement officer would be the usual remedy but that in this- particular case resentencing was unnecessary because the trial court- imposed a life sentence under both section 782.065 and section 775.087.

However, the sentencing transcript does not reflect that the trial court knew that under section 775.087(2)(a)(3) the minimum term was twenty-five years and the maximum term was life. In fact, the State argued and the court reiterated that a life sentence was mandatory. Further, Rivera argues that in Ramroop the supreme court explained that because the life sentence under section 782.065 is a mandatory statutory punishment, “[i]t is no answer to say that the defendant could have received the same sentence with or without that fact.” Ramroop, 214 So.3d at 668 (quoting Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2162, 186 L.Ed.2d 314 (2013)).

Based on Ramroop, we reverse Rivera’s judgment and sentence and remand for a new, trial in which the jury is properly instructed on the charge of attempted first-degree murder of a law enforcement officer with a firearm.

Reversed and remanded for new trial:

NÓRTHCUTT and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: SALARIO, Judge.

license: Public Domain

text:
    Yanery RODRIGUEZ and Jose Pons Hernandez, Appellants, v. Jeffrey Dean THOMPSON, Appellee.
    Case No. 2D17-128
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017
    Rehearing Denied .January 30, 2018

      Scott E. Samis and Frank E. Dylong, Jr. of Traub Lieberman Straus & Shrewsber-ry LLP, St. Petersburg; and Starr L. Brookins and William G.K. Smoak of Smoak, Chistolini & Barnett, PLLC, Tampa, for Appellants.
    Sarah Lahlou-Amine (withdrew after briefing) and George A. Vaka of Vaka Law Group, P.L., Tampa (substituted as counsel of record), for Appellee.
   SALARIO, Judge.

Yanery Rodriguez and Jose Hernandez appeal from a trial court order denying their motion to set" aside a default and resulting judgment for money damages in favor of Jeffrey Thompson. To the extent the order declined to set aside the default as to liability, we affirm it without comment. Because the record contains no evidence that Ms. Rodriguez and Mr. Hernandez were provided notice of the trial on damages, however, we reverse the order insofar as it refused to set aside the judgment and remand for a new trial on damages.

Mr. Thompson brought a negligence action against Ms. Rodriguez and Mr. Hernandez to recover for injuries he suffered in an auto accident. Ms. Rodriguez and Mr. Hernandez were both validly served with the complaint. Each of them filed handwritten, pro se documents in which they generally denied liability. Although they .each were served with many .other pleadings, papers, and orders requiring their attention to and appearance in the trial court proceedings, the trial court did not hear further from either of them until the motion that is the subject of this appeal was filed.

Mr. Thompson sought and obtained a default on liability. Thereafter, the court entered- an order setting a trial on the issue of damages. There is no certificate of .service for this order in the record or entered on the ease progress docket. And although the bottom,of the order has a note that reads “conformed copies to”— indicating that conformed copies of the order were to be delivered to recipients listed beneath the note—there are no names, addresses, or other information under that note that would indicate to whom, if anyone, the order was mailed or otherwise delivered. After a jury trial, at which neither Ms. Rodriguez nor Mr. Hernandez was present, the trial court entered a judgment against them for $1,190,000.

Ms. Rodriguez and Mr, Hernandez later appeared through counsel and filed a motion to set aside the default and the resulting judgment. In relevant part, they argued that the judgment should be set aside under Florida Rule of Civil Procedure 1.540(b) because it was void insofar as they had not been served with the order setting the damages trial. They each filed an affidavit swearing that they had not received a copy of the order setting the damages trial and had not otherwise received notice of that trial, After a nonevidentiary hearing, the trial court denied the motion.

An order denying a rule 1.540(b) motion is ordinarily reviewed for an abuse of discretion. Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461, 464 (Fla. 2d DCA 2011). “Where a final • judgment is void, however, the trial court has no discretion and is obligated to vacate the judgment.” Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015); cf. Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007) (“A void judgment is so defective that it is deemed never to have had legal force and effect”). For that reason, the question of whether or not a judgment is void is reviewed de .novo. Vercosa, 174 So.3d at 552.

Applying that standard of review, we' conclude- that the trial cohrt’s damages judgment is void because there is no evidence in this record that Ms. Rodriguez and Mr. Hernandez were provided with notice of the damages trial. Even when a default on liability has been entered against a litigant, the defaulting party remains entitled to a trial on damages where, as here, the damages are unliqui-dated. See Szucs v. Qualico Dev., Inc., 893 So.2d 708, 712 (Fla. 2d DCA 2005). As such, a defaulted party has a due process right to notice and an opportunity to be heard on the subject of unliquidated damages. Asian Imps., Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994); see also Vercosa, 174 So.3d at 552; Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011).

To ensure that a defaulted party’s entitlement to notice is honored, rule 1.440(c) requires that “[i]n actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080.” See also Fla. R. Civ. P. 1.080; Fla. R. Jud. Admin. 2.516. “[This] rule is designed to safeguard the parties’ right to procedural due process.” Brown v. Reynolds, 872 So.2d 290, 297 (Fla. 2d DCA 2004).

A judgment that has been entered in violation of due process is void. State Farm Mut. Auto Ins. Co. v. Statsick, 231 So.3d 528, -, 2017 WL 2989010 (Fla. 2d DCA July 14, 2017). It follows, therefore, that when a trial court enters a judgment awarding unliquidated damages against a defaulted party after a tidal of which the defaulted party was not provided notice, the resulting judgment is void. See Vercosa, 174 So.3d at 552-53; Rodriguez v. ALS Commercial Funding, LLC, 138 So.3d 491, 491-92 (Fla. 3d DCA 2014); Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA 1999).

This record contains ample evidence of Ms. Rodriguez’s' and Mr. Hernandez’s failure to respond to prior pleadings and orders, and we thus doubt that they would have appeared at a damages trial even if they had received notice of it. But the law is settled that they were entitled to that notice. And this record contains no evidence that it was given to them. On the contrary, the evidence points in the opposite direction. As such, the final judgment is void to the extent it awarded damages in violation of Ms. Rodriguez’s and Mr. Hernandez’s due process rights, and the trial court should have granted their motion to that extent. See Hill v. Murphy, 872 So.2d 919, 922 (Fla. 2d DCA 2003) (reversing order denying motion to set aside judgment where defaulted party was not served with order setting damages trial).

Accordingly, although we affirm the trial court’s order to the extent it declined to set aside the default as to liability, we reverse that order to the extent it declined to set aside the damages judgment. We remand the case to the trial court with instructions to vacate the judgment and to hold a new trial on damages.

Affirmed in part; reversed in part; remanded with directions.

LaROSE, C.J., and VILLANTI, J., Concur.


text:
    Joel Alan UMHOEFER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3968
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017
    Rehearing Denied January 30, 2017
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Joel Alan Umhoefer appeals his judgment and sentence for unauthorized access of a computer network or electronic device, a third-degree felony. The charge arose as a result of his online relationship with a teenage girl, M.B. We affirm his judgment and sentence and write to address the denial of his .motion for judgment of acquittal.

Umhoefer contends that the trial court should have granted his motion for judgment of acquittal because the State failed to prove that he accessed a computer network and that the access was unauthorized. Appellate review of the denial of a motion for judgment of acquittal is by the de novo standard. State v. Shearod, 992 So.2d 900, 903 (Fla. 2d DOA 2008). Section 815.06(2)(a), Florida Statutes (2014), provides as follows:

(2) A. person commits an offense against users • of computers, computer systems,- computer networks, or electronic devices if he or she willfully, knowingly, and without authorization:
(a) Accesses or causes to be accessed any computer, computer system, computer network, or electronic device with knowledge that such access is unauthorized!)]

The applicable version of section 815.03, effective October ■ 1, 2014, defines a computer network as '

a system that provides á medium for communication between one or more computer systems or electronic devices, including communication with an input or output device such as a display terminal, printer, or other electronic equipment that is connected to the computer systems or electronic devices by physical or wireless telecommunication facilities.

§ 815.03(4). “‘Access’ means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.” § 815.03(1).

Umhoefer developed an online relationship with M.B. beginning in .November 2012 when she was fourteen. M.B. made videos for Umhoefer, and he sent her gifts, including a laptop and stuffed animals. After she began a relationship with E.C., a boy her age, Umhoefer became jealous. An injunction for protection against dating violence was issued against Umhoefer in August 2014.

The State filed the charge at issue after Umhoefer sent an email to M.B.’s mother on November 23, 2014, that attached Face-book messages between M.B. and E.C. that were sexually explicit'. Umhoefer claimed that he had been monitoring M.B. and was trying to help her.. He asserted that she had given him .her password a long time ago but that she had just changed it that day to hide further conversations with E.C.

. M.B. testified that Umhoefer and she had exchanged passwords but that by June of 2014 she had changed her password and that she did not give Umhoefer the new password. She specifically testified that she did not give him the password to go into a new Facebook account she had set up.

Detective McHenry, an expert in computer forensics, testified that accessing Fa-cebook involves using the internet to communicate from a computer with another network and stated that accessing Face-book is accessing a network. He stated that Umhoefer hacked into Faeebook’s network and stated that the private conversations between E.C. and M.B, “are not stored locally” but on Facebook’s “server farm, which is a network of computers that provide service and content access. So you, by accessing that account, you’re actually accessing Facebook’s network which allows you to use their network as a user.” This access occurred in October, November, and December of 2014. Detective McHenry explained that Umhoefer got into both M.B.’s account and Facebook’s server. The detective indicated that the home and Fa-cebook networks were connected and stated that

the home network is part of that. The internet is part of that. And then Face-book, because they house all the material, I can go into the more specifics of how their folders and logging work, but they also are a network.
So all of these structures are considered^—maybe it’s easier to think of your home network and then a bridge using the internet to the secondary network which is Facebook.

Detective McHenry also stated that when law enforcement wants to get information from Facebook it has to get a search warrant because of the privacy issues.

Defense counsel argued to the trial court that Detective McHenry went beyond the wording of statute in saying that Facebook’s network was accessed and rather the situation “was accessing somebody’s individual, account, which is different.” In denying the motion, the trial court stated that it thought “the evidence presented by Detective McHenry shows that there was indeed a network that the defendant did access without authorization.”

Umhoefer argues on appeal that the State failed, to prove that he accessed a computer network without authorization. He acknowledges that the State proved that he accessed M.B.’s Facebook account but contends that the State did not prove that he accessed any social media site’s server or network. He relies upon Crapps v. State, 180 So.3d 1125 (Fla. 1st DCA 2015), for the proposition that accessing a person’s specific account was insufficient to prove a violation of section 815.06.

In Crapps, the First District determined that the State had failed to prove a violation of section 815,06(l)(a), Florida Statutes (2013), when the defendant accessed his ex-girlfriend’s Instagram account without permission and posted nude photos of her. 180. So.3d at 1126-27, The First District stated that the statute’s definitions in section 815.03 referred to tangible devices and-not the data located on the device. Id. at 1127. The court stated that to prove a violation the State was required to “establish that the defendant accessed one of the listed tangible devices without authorization, not that the defendant accessed a program or information stored on the device without authorization.” Id (citing Rodriguez v. State, 956 So.2d 1226, 1230 (Fla. 4th DCA 2007)). In determining that the State failed to prove .its case, the First District pointed out. that it had before it no evidence to “explain[] how accessing an Instagram account works from a technological perspective, leaving unanswered whether or how Appellant’s actions amounted to accessing a specific computer, computer system, or computer network,” Id. In fact, the court stated that it “d[id] not foreclose the possibility that the State could present sufficiént evidence to prove a violation of section 815.06 for unauthorized, sexually-explicit Internet postings such as those in this case.” 180 So.3d at 1127.

And the case cited in Crapps, Rodriguez v. State, 956 So.2d 1226 (Fla. 4th DCA 2007), is distinguishable from the present case. There, an employee was charged with a violation of section 815.06 for accessing his employer’s computer system and adjusting the inventory. M. at 1230. The Third District determined that although the employee “was not authorized to access the computer function he accessed in order to make inventory adjustments!,]” the employee “was authorized to access the system by using his password” and “was authorized to access the network.” Id. The court also noted that the statute provides an exception for an employee accessing his employer’s computer system when acting in the scope of lawful employment. Id. at 1230-31. The court thus concluded that the evidence was insufficient to show the employee “accessed the computer, computer system, or computer network without authorization.” Id.

Here, the State presented an expert in computer forensics who testified that Umhoefer accessed both M.B.’s account and Facebook’s network, specifically Facebook’s servers where the private messages were stored. In contrast, in Crapps, the only evidence “explaining what Instar gram is was the ex-girlfriend’s testimony that it is a form of social media and ‘a place where you post pictures [and] yóur friends get to see it.’ ” 180 So.3d at 1127 (alteration in original). Based on the trial testimony in the present case, we- find no error in the trial court’s conclusion that Umhoefer accessed a computer network in violation of the applicable statutes.

The State also presented sufficient evidence to prove that Umhoefer’s access was unauthorized. There was no dispute that Umhoefer accessed M.B.’s Facebook account and sent data, consisting of private messages between M.B. and E.C., to M.B.’s mother. Although Umhoefer claimed that he had M.B.’s password because she had given it to him, M.B. testified that by June of 2014 she had changed her password and that she did not give him the password to go into her account. In addition, Detective McHenry testified that Umhoefer used the Passfinder application, a method of bypassing password protections, to get into the account. If Umhoefer still had the password to M.B.’s Facebook account, he would not have needed Passfinder to access it. Thus, we conclude that the State presented sufficient evidence and that the trial court properly denied his motion for judgment of acquittal. Therefore, we affirm his judgment and sentence.

Affirmed.

NORTHCUTT and MORRIS, JJ., Concur.

      . The case went to trial on the additional counts of lewd or lascivious conduct and solicitation of a child over the internet. Those counts arose from what was described as fetish videos that Umhoefer asked M.B. to make and involved M.B. flatulating on a sock while she was clothed in a t-shirt and underwear. The defense argued that the State did not prove that his fetish was of a sexual nature or that the videos were lewd or lascivious; although the trial court found the conduct troubling and inappropriate, the trial court agreed with the defense and granted the motion on those two counts.

      . The prior version of section 815.03 that was applicable in Crapps defined a computer network as "any system that provides communications between one or more computer systems and its input or output devices, im eluding, but not limited to, display terminals and printers that are connected by telecommunication facilities,” § 815.03(4), Fla. Stat, (2013).


author: PER CURIAM.

text:
    James ELLARD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1439
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Rehearing Denied February 15, 2018
    James Ellard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Any relief requested in the “habeas corpus petition for belated appeal,” filed on June 22, 2017, is denied.

LEWIS, ROBERTS, and BILBREY, JJ., CONCUR.


author: BILBREY, J.

text:
    OLDCASTLE SOUTHERN GROUP, INC., a Georgia Corporation, Appellant, v. RAILWORKS TRACK SYSTEMS, INC., a Nevada Corporation authorized to transact business in the State of Florida, Appellee.
    CASE NO. 1D17-48
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Peter P. Murnaghan and Jill K. Schmidt of Murnaghan & Ferguson, P.A., Tampa, for Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; Eric L. Leach and C. Ryan Eslinger of Milton, Leach, Whtiman, D’Andrea & Eslinger, P.A., Jacksonville, for Appellee.
   BILBREY, J.

Railworks Track Systems, Inc., the plaintiff at trial, sent a proposal for settlement by email to Oldcastle Southern Group, Inc., the defendant. The proposal was received by Oldcastle, not accepted, and then following trial Railworks received a judgment more than 25 percent.greater than the amount demanded in the proposal. See § 768.79(1), Fla. Stat. (2014). Old-castle contends the proposal had to be served in accordance with rule 2.516, Florida Rules of Judicial Administration, and since it was not Railworks was not entitled to an award of attorneys’ fees. We hold that the proposal did not have to be served in accordance with rule 2.516. We also reject without further comment Oldcastle’s argument that the trial court awarded an unreasonably high hourly rate to Rail-works’ attorneys and paralegal.

It is undisputed that Railworks’ proposal for settlement did not contain a subject line on the email beginning with “SERVICE OF COURT DOCUMENT”; did not include the case number in the service line; and did not include in the body of the email the case number, the court where the case was pending, the name of the party, • or the title of the document served—all of which would be required if rule 2.516(b)(1)(E) applied. Oldcastle contends that these omissions mean that the proposal was not served as required by rule 2.516, was therefore invalid, and the award of fees was error.

There is a split-of authority among other district courts as to whether a proposal for settlement .must be served as provided by rule 2.516. Compare Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017), rev. granted, 2017 WL 4785810 (Fla. October 24, 2017), with McCoy v. B.J. Reynolds Tobacco Co., 229 So.3d 827 (Fla. 4th DCA 2017), and Boatright v. Philip Morris USA Inc., 218 So.3d 962 (Fla. 2d DCA 2017). We adopt the view of McCoy and Boatright and hold that .compliance with rule 2.516 is not required when serving a proposal for settlement. We certify conflict with Wheaton. .

Our review of the issue of entitlement to fees is de novo. Kuhajda v. Borden Dairy Co. of Alabama, LUC, 202 So.3d 391 (Fla. 2016). We construe the rules of court in the same manner as we construe statutes. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla. 2006). Section 768.79(3), Florida Statutes (2014), requires service of the proposal, without specifying the manner of service, “upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section,” Rule 2,516 provides, impart,

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding ... must be served in accordance with this rule on each party. . ■

The parties agree‘that Railworks’ proposal for settlement was not a pleading. See Fla. R. Civ. P. 1.100(a). Oldcastle contends that the proposal falls under rule 2.516(a)’s application to “every other document filed in any court proceeding” and therefore “must be served in accordance with this rule.” Although—consistent with section 768.79(3)—rule R442(d), Florida Rules of Civil Procedure, requires “[a] proposal shall be served on the party or parties to whom -it ⅛. made,” it continues by stating that a proposal “shall not be filed unless necessary to enforce the provisions of this rule.” We agree with McCoy and Boatright that since the proposal for settlement is not to be filed when it is served, the proposal is not included in the clause “every other document filed in any court proceeding.” McCoy, 229 So.3d at 828, 2017 WL 4812662, at *1; Boatright, 218 So.3d at 967.

Oldcastle also makes an; argument concerning rule 2.516(d), which was not addressed in McCoy, Boatright, or Wheaton. Rule 2.516(d), states in part, “Filing. All documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.” (Emphasis added). Oldcastle argues that the emphasized language supports, its contention that the proposal falls under rule 2.516(a) in that the proposal is an “other, document” but is not “filed in any court proceeding” due to application of general law and rules, specifically section 768.79(3) and rule 1.442(d). In so arguing Oldcastle attempts to use subsection (d) to expand the definition of “other document” in subsection (a). We disagree with Oldcastle’s argument.

Oldcastle’s argument Regarding rule 2.516(d) suffers from the same problem as the appellees’ argument in Boat-right regarding subsection (b). There, Judge Badalamenti stated,

[Appellees’] expansive reading of rule 2.516(b)(1) would render subsection (a) meaningless and only prevails if we were to impermissibly read rule 2.516(b)(1) in isolation. By its title, rule 2.516(a) sets forth when the service requirements of rule 2.516 apply. Rule 2.516(a) confines the scope of rule 2.516 to “every pleading-' subsequent to - the initial pleading and every other document filed in any court proceeding.” (Emphasis added.) Rule 2.516(b)(1) then sets forth the method by which those documents- must be served, which is principally by email, albeit with some exceptions inapplicable to .ithis case. Reading rule 2.516(a) and (b)(1) together, the word “documents” in subsection (b)(1) is confined in meaning to “document[s] filed in any court proceeding,” consistent with the text of subsection (a).... It makes no sense for rule 2.516(b)(l)’s. email service requirement to apply to- a broader scope of documents, than, specified by, 2.516(a), which is the portion of rule. 2.516 defining scope. .

Boatright, 218 So.3d at 967. Subsection (a) of rule 2.516 concerns service while subsection (d) concerns filing. Subsection (d) should not be read to expand what is a document under subsection (a).

Based on the above, we find no error in the trial court’s determination that the service requirements of ruie 2.516 do not apply to proposals for settlement.

AFFIRMED; CONFLICT CERTIFIED.

RAY and WINOKUR, JJ., CONCUR.

      . Rule 1.442, Florida Rules of Civil Procedure, uses the term proposal for settlement while section 768.79, Florida Statutes (2014), uses the term offer of judgment when made by a defendant or demand for judgment when made by a plaintiff. For the sake of simplicity and consistency the Appellee/plaintiffs demand for judgment is referred to as a proposal for settlement.

      , Although immaterial to -our resolution, of the case, the. proposal attached to the email contained all of this information. It is also undisputed that Oldcastle actually received the ■ proposal and was not prejudiced by the omissions;

      . We also agree with Boatright that Wheaton misconstrued our earlier opinion in Floyd v. Smith, 160 So.3d 567 (Fla. 1st DCA 2015). Boatright, 218 So.3d at 969-70. The issue in Floyd was the application of rule 1.442(c)(2)(G)’s requirement that the proposal had to contain “a certificate of service in the form required by rule 1.080." Floyd, 160 So.3d at 569. Rule 1.080(a) explicitly references rule 2.516, meaning that, unlike here, there was n.o question in Floyd as to whether rule 2.516 applied to the limited issue in that case. Rule 2.516 was discussed in the context of whether the proposal had to contain a certificate of service, and we held that it did not-; but we did not consider the issue of whether rule;2.516 applied to service of a proposal for settlement. Floyd, 160 So.3d at 569,


author: PER CURIAM. BADALAMENTI,

text:
    Thomas M. KNIGHT, Sheriff of Sarasota County, Petitioner, v. CHIEF JUDGE OF FLORIDA’S TWELFTH JUDICIAL CIRCUIT; and Karen E. Rushing, Clerk of the Circuit Court of Sarasota County, Florida, Respondents.
    Case No. 2D17-965
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Patrick J. Duggan, Senior Assistant General Counsel, and Crystal L. Hansen, Assistant General Counsel, Sarasota, for Petitioner.
    Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, for Respondent Chief Judge of Florida’s Twelfth Judicial Circuit.
    Bradley J. Ellis of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Respondent Karen E. Rushing, Clerk of the Circuit Court of Sarasota County, Florida.
    Jason Vail of Jolly, Peterson & Truck-enbroad, P.A., Tallahassee, for Amicus Curiae the Florida Sheriffs Association.
    Fred W. Baggett and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Amicus Curiae the Florida Association of Court Clerks.
   PER CURIAM.

The Sheriff of Sarasota County petitions this court for certiorari review of portions of Administrative Order 2017-4.2, issued by the Chief Judge of Florida’s Twelfth Judicial Circuit, that direct the Sheriff to secure court facilities. “This court has jurisdiction to review by certio-rari a claim that a chief judge has exceeded his or her authority by issuing an administrative order.” Holt v. Chief Judge of Thirteenth Judicial Circuit, 920 So.2d 814, 815 (Fla. 2d DCA 2006) (first citing 1-888-Traffic Sch. v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413 (Fla. 1999); then citing Hatcher v. Davis, 798 So.2d 765, 765-66 (Fla. 2d DCA 2001)). Because the Sheriff has not met his burden to show that the Chief Judge exceeded his authority by issuing the order, we deny the petition.

The challenged portions of the administrative order require the Sheriff to provide security for certain court facilities where no sessions of court are held. According to the parties, these facilities largely house offices of the Clerk of the Sarasota Circuit Court, judicial chambers, court staff offices, and court-related administrative offices. With respect to these facilities, the Sheriff challenges the following provisions of the order:

The Sheriffs of the three counties of the Twelfth Judicial Circuit shall provide security for the court facilities of the circuit and county courts, their personnel, clerks’ staff (acting as an arm of the judicial court in furtherance of court business), jurors, attorneys and the public who access court facilities....
[With certain exceptions], all persons entering court facilities through public access portals shall be subject to identification verification and search. Searches shall be conducted at all points of public ingress under procedures established by the Sheriffs using personnel and equipment-approved by them. Searches shall include the protocols, techniques, and equipment most- likely to detect contraband, weapons, firearms, flammable, hazardous or toxic materials, bombs, biological and chemical agents....
Persons refusing to be searched shall be denied access to court facilities....
At the request of the Trial Court Administrator or his designee, the Sheriffs shall conduct initial .and subsequent background and criminal history investigations on all persons to whom the Trial Court Administrator has granted secure access
The, Sheriffs shall also conduct initial and subsequent background and criminal history investigations on all vendors who regularly work within court facilities .;..
Deputy Sheriffs shall prohibit any activity which is perceived to be a threat to the safety of persons or property within court facilities or on court facilities grounds, or which disrupts the official business conducted within such facilities ....

The Sheriff argues that by directing him to provide -security beyond the dictates of section 30.15, Florida Statutes (2016), the Chief Judge—an arm of the judicial branch—exceeded his authority and encroached on the Sheriffs constitutional independence in violation of separation of powers principles. According to the Sheriff, the Chief Judge can only compel him to provide security within the literal four corners of a courtroom wherein sessions of court are actually held because section 30.15, which addresses the “[p]owers, duties, and obligations” of the Sheriff, only requires the Sheriff to, in relevant part, “[ajttend all sessions of the circuit court and county court.” § 30.15(l)(c). The Sheriff further argues that the Chief -Judge exceeded his authority because the challenged portions improperly specify how, even within the four corners of the courtroom, the Sheriff performs his independent function of providing security.

The Chief Judge responds that the Sheriff has not shown that he exceeded his authority because the order only affects the Sheriff in his capacity as an officer of the court, and the Chief Judge has the power to direct the Sheriff, as an officer of the court, to provide security for court facilities in order to promote the prompt and efficient administration of justice.

We conclude that the Sheriff has failed to show that the Chief Judge exceeded his authority by issuing Administrative Order 2017-4.2. Article II, section 3 of the Florida Constitution divides our state government into three branches and provides that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Regarding the powers of the Chief Judge, the Florida Constitution provides that he “shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit.” Art. V, § 2(d), Fla. Const. The Sheriff, on the other hand, is a county .officer whose “powers [and] duties ... shall be fixed by law.” Art. II, § 5(c), Fla. Const.; Art. VIII, § 1(d), Fla. Const. Thus, in examining the contours of the powers at issue in this case, we must consider the sources of law designed to fix those powers.

We begin our examination with section 43.26(2)(e), Florida Statutes (2016), which empowers the Chief Judge “[t]o do everything necessary to promote the prompt and efficient administration of justice in the courts over which he ... is chief judge.” See also Fla. R. Jud. Admin. 2.215(b)(3) (“The chief judge .... shall, considering available resources, ensure the efficient and proper administration of all courts within that circuit.”). “A statutory grant of power or right carries with it by implication everything necessary to carry out the power or right and make it effectual and complete,” Brock v. Bd. of Cty. Comm’rs of Collier Cty., 21 So.3d 844, 847 (Fla. 2d DCA 2009) (quoting Deltona Corp. v. Fla. Pub. Serv. Comm’n, 220 So.2d 905, 907 (Fla. 1969)).

Consistent with this statutory grant of power, Florida Rule of Judicial Administration 2.215(b)(2) requires the Chief Judge to “direct the formation and implementation of policies and priorities for the operation of all courts and officers within the circuit,” which he may do through the use of administrative ordérs. Moreover, he “shall have the authority to require that all judges of the court, other court officers, and court personnel comply with all court and judicial branch policies, administrative orders, procedures and administrative plans.” Fla, R. Jud. Admin. 2.215(b)(2) (emphasis added). Pursuant to section 26.49, Florida Statutes (2016), “[t]he sheriff of the county shall be the executive officer of the circuit court of the county.” See also § 34.07, Fla. Stat. (2016) (sheriff also executive officer of county court). From these sources of law, it is clear that the Chief Judge has the power to require the Sheriff, as an officer of the .court, to comply with an administrative order that contains policies designed to promote the prompt and efficient administration of justice.

The concern from the Sheriffs point of view now becomes whether the geographic scope of the Chief Judge’s power extends beyond the literal four corners of the courtroom. Relating to the Chief Judge’s authority to promote the prompt and efficient administration of justice in the courts, section 43.26(6) specifies that “[t]he clerks of court provide court-related functions which are essential to the orderly operation of the judicial branch,” And, “[t]he chief judge may authorize the clerks of courts to maintain branch county court facilities.” Fla. R. Jud. Admin. 2.215(b)(9). Importantly, rule 2.215(b)(7) gives the Chief Judge the power to “regulate the use of all court facilities.” While rule 2.215 does not explicitly define the phrase “court facilities,” section 29.008, Florida Statutes (2016), which addresses the funding of court-related functions, provides guidance on the issue. In enumerating the facilities within, the Circuit to be secured pursuant to the instant order, the Chief Judge applied the following definition contained in section 29.008(l)(a):

“Facility” means reasonable and necessary buildings and office space and appurtenant equipment and furnishings, structures, real estate, easements, and related interests in real estate, including, but not limited to, those for the purpose of housing legal materials for use by the general public and personnel, equipment, or functions of the circuit or county courts, public defenders’ offices, state attorneys’ offices, and court-related functions of the office of the clerks of the circuit and county courts and all storage. The term “facility” includes all wiring necessary for court reporting services. The term also includes access to parking for such facilities in connection with such court-related functions that may be available free or from a private provider or a local government for a fee.

From these sources of law, it is clear that the Chief Judge’s power, pursuant to section 43.26 and rule 2.215, extends beyond the literal four corners of a courtroom wherein sessions of court take place. Indeed, the power extends to all court facilities, including the facilities identified in the administrative order under review.

The final piece of this puzzle involves the question of security. Keeping in mind the Chief Judge’s power to regulate the use of all court facilities and do everything necessary to promote the efficient administration of justice, the Florida Constitution further provides that, with respect to the funding of the judiciary, “[cjounties shall be required to fund the cost of ... security of facilities for the trial courts, public defenders’ offices, state attorneys’ offices, ' and the offices of the clerks of the circuit and county courts performing court-related functions.” Art. V, § 14(c), Fla. Const.; see also § 29.008(1) (same). Moreover, in section 29.008(l)(e), the legislature specified that

“[sjecurity” includes but is .not limited to, all reasonable, and necessary costs of services of law enforcement officers or licensed security guards and all electronic, cellular, or digital monitoring and screening devices necessary. to ensure the safety and security of all persons visiting or working in a facility; to provide for security of the facility, including protection of . property owned, by the county or the state; and for security of prisoners brought to any facility. This includes bailiffs while providing courtroom and other security for each judge and other quasi-judicial officers.

Thus, it is clear that the Chief Judge’s responsibility to promote the administration of justice in the courts includes the power to issue an administrative order directing the security of court facilities.

The Sheriff recognizes the Chief Judge’s power to order security for court facilities. He nevertheless .maintains that the .Chief Judge exceeded his authority .by requiring the Sheriff, exclusively, to provide that security.' Even assuming the Sheriffs characterization of the order.-is accurate, the Sheriff has not identified any source of law that prohibits such a mandate. In an attempt to meet this burden, the Sheriff argues that section 30.15 defines the exclusive scope of the Sheriffs obligations with respect to the court and does not include a duty to provide security for court facilities. However, section 30.15(l)(j) explicitly requires the Sheriff to “[p]erform such other duties as may be imposed upon [him] by law.” As explained above, the Chief Judge is legally empowered to issue administrative orders regarding the security of court facilities and to compel court officers, such as the Sheriff, to comply with its administrative orders. Nothing in section 30.15 absolves the Sheriff of his duty to comply with the lawful administrative order at issue here.

We likewise reject the Sheriffs argument that the Chief Judge exceeded his authority by specifying how the Sheriff provides security. The order clearly leaves decisions regarding procedures, techniques, protocols, personnel, and equipment up to the Sheriffs discretion. Cf. Morse v. Moxley, 691 So.2d 504, 506 (Fla. 5th DCA 1997) (holding that while the chief judge could generally compel the clerk or deputy clerks to attend court] he exceeded his authority by issuing an administrative order directing specific deputy clerks to attend specific sessions of court).

Finally, we reject the Sheriffs contention that the order somehow requires the Sheriff to expend his own funds. The plain language of article V, section 14, subsection (c) of the Florida Constitution, and section 29.008—which the Chief Judge applied in defining the facilities to be secured pursuant to the order—explains that the County, not the Sheriff, provides the funds for the security directed by the instant administrative order, and nothing in the order specifically compels the Sheriff to provide any funding whatsoever.

Having considered all of the applicable sources of law, we cannot say that the Chief Judge exceeded his authority in issuing the administrative order. Accordingly, we deny the Sheriffs petition.

Petition denied.

NORTHCUTT and CRENSHAW, JJ., Concur.

BADALAMENTI, J., Concurs with opinion.

BADALAMENTI,

Judge, Concurring.

I concur with the court’s thorough analysis. It is clear that the Chief Judge acted within his constitutional and statutory authority to impose security duties upon the Sheriff. The legislature has made it clear that the chief judge of a judicial circuit “shall exercise administrative supervision over all the trial courts within the judicial circuit and over the judges and other officers of such courts.” § 43.26(1), Fla. Stat. (2016). The legislature has empowered each chief judge to “do everything necessary to promote the prompt and efficient administration of justice in the courts over which he or she is chief judge.” § 43.26(2)(e). A sheriff is an officer of the circuit court, namely the “executive officer.” § 26.49, Fla. Stat. (2016). A chief judge has the authority to direct a sheriff, as executive officer, to provide security for court facilities in order to promote the prompt and efficient administration of justice. Maintaining the safety of the public in court facilities, such as the Clerk’s office where, among other things, all court filings are maintained for the court’s disposition, is undoubtedly essential to the prompt and efficient administration of justice in the courts of our State. That said, I am mindful of the budgetary concerns that sheriffs across our State face. All in all, the concerns raised by the Sheriff in his petition are issues for Sarasota County and our State’s legislature to ferret out, not the courts.


text:
    Javoney D. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5085
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Rehearing Denied January 30, 2018
    Javoney D. Roberts, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

We affirm the final order summarily denying Javoney D. Roberts’ petition for writ of mandamus without prejudice to allow him to file a facially sufficient petition that attaches a copy of his public records request that he made to the State Attorney’s Office. See Fla. R. Civ. P. 1.630(b); Gilliam v. State, 996 So.2d 966, 958 (Fla. 2d DCA 2008); Major v. Hallandale Beach Police Dep’t, 219 So.3d 856, 858 (Fla. 4th DCA 2017); Woodard v. State, 885 So.2d 444, 445 (Fla. 4th DCA 2004). If Roberts states a facially sufficient claim, then the circuit court must issue an alternative writ of mandamus requiring the State Attorney’s Office to show cause why Roberts is not entitled to the requested relief. See Fla. R. Civ. P. 1.630(d)(2); Gilliam, 996 So.2d at 968; Farmer v. State, 927 So.2d 1076, 1076 (Fla. 2d DCA 2006).

Affirmed without prejudice.

SLEET and BADALAMENTI, JJ., Concur. .


author: CASANUEVA, Judge.

text:
    N.D.W., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4521
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017

      Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

N.D.W. appeals the juvenile disposition order adjudicating him delinquent’for two counts of fleeing and eluding a law enforcement officer and one count of grand theft of a motor vehicle, for which the trial court ordered that the thirteeii-year-old be committed to the Department of Juvenile Justice (DJJ) for placement in a nonsecure residential program. We affirm the adjudication of delinquency without discussion. However, we agree that the trial court considered impermissible factors at sentencing; thus, we reverse the disposition order and remand for a new disposition hearing.

N.D.W. argues that the trial court erred in considering at sentencing crimes that N.D.W. purportedly committed after these offenses' and for which he had not yet been charged or convicted. As a general rule, a sentence within the statutory limits is not subject to appellate review. Charles v. State, 204 So.3d 63, 66 (Fla. 4th DCA 2016). “However, when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s, due process rights.” Id.

In Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), the supreme court announced the following bright-line rule; “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.” See also Fernandez v. State, 212 So.3d 494, 496 (Fla. 2d DCA 2017). “[Consideration of subsequent charges with which the defendant has not been convicted violates due process .,. Id.; see also A.R.M. v. State, 198 So.3d 1132, 1133 (Fla. 4th DCA 2016) .(noting that juvenile defendant’s due process rights were violated, pursuant to Norvil, when “the court took into account appellant’s arrests without conviction that occurred after the crimes in this ease”). The burden is on'the State to show that the trial court did not rely on the improper factor in imposing the 'sentence where it appears that the trial court may have done so. Fernandez, 212 So.3d at 497; see also Norvil, 191 So.3d at 409.

In this case, the State recommended commitment to a nonsecure residential facility, while N.D.W. sought to be allowed to remain in the community. The State presented argument regarding NJD.W.’s prior record, which included eight felonies, and informed the trial court of additional charges “waiting in- the wings.”

Defense counsel objected, stating “those charges he has not been found guilty on and I don’t believe they’ve been filed on yet.” The trial court overruled the objection, and the State then reiterated that N.D.W. had a number of pending burglary charges. The trial court found no reason to depart from the State’s recommendation, adjudicated N.D.W. delinquent, and committed him to the custody of DJJ for completion of a nonsecure residential program.

Based on the transcript in this case, we cannot say that the trial court did not consider N.D.W.’s subsequent arrests in sentencing him. The court overruled defense counsel’s objection and suggested that it would take the information. into consideration, and the State has presented no argument that the trial court did not consider this-information. . ,

Because the trial court appears to have considered subsequent arrests in imposing the sentence against N.D.W., and the State has failed to meet its burden to show otherwise, we reverse the disposition order and remand for a new disposition hearing before a different judge. See Fernandez, 212 So.3d at 497. ■

Affirmed in part; reversed in part; remanded with directions.

YILLANTI and SALARIO, JJ., Concur.


text:
    Anthony DANIEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-535
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Rupak R. Shah of Escobar & Associates, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Anthony Daniel appeals his judgment and conviction after entering a no contest plea. Daniel-reserved his right to appeal the propriety of the circuit court’s denial of his motion to suppress his statements, admissions, or confessions to law enforcement on the-^ day of his arrest. After review, we hold that the denial of, Daniel’s motion to suppress is not dispositive for purposes of appellate review following a no contest plea. See Dermio v. State, 112 So.3d 551, 557 (Fla. 2d DCA 2013). We also note that .the record before us contains no indication 'that the State otherwise stipulated that the issue was dispositive. See Churchill v. State, 219 So.3d 14, 17 (Fla. 2017). Accordingly, we dismiss this appeal "without prejudice to Daniel’s seeking whatever relief to which he may be entitled. See Fla. R. Crim. P. 8.170(0; 3.850(a)(5).

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.


author: SLEET, Judge.

text:
    Richard H. LOCKETT, Appellant, v. Stephanie M. LOCKETT, Appellee.
    Case No. 2D16-319
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017

      Mark A. Neumaier, Tampa, for Appellant.
    Amy D. Singer of Allen Dell, P.A., Tampa, for Appellee.
   SLEET, Judge.

Richard H. Lockett (the Husband) challenges the trial court’s final judgment of dissolution of his marriage to Stephanie M. Lockett (the Wife). We reverse the final judgment to the extent that it entered a default against the Husband as to the issue of alimony. We also reverse the trial court’s child support award and remand for recalculation. Additionally, we dismiss for lack of jurisdiction the portion of this appeal that challenges the trial court’s determination that the Wife is entitled to attorney fees. In all other respects, we affirm.

On March 25, 2014, the Wife filed her petition for dissolution of marriage, and on June 5, 2014, the Husband filed his answer and counterpetition, in which he sought alimony. Between that time and the final hearing on May 19, 2015, the Wife filed two motions to compel the Husband to comply with her discovery requests and three motions seeking to hold the Husband in contempt for his failure to comply with various trial court orders concerning discovery as well as other matters. In the Wife’s third contempt motion, she requested that the trial court strike the Husband’s pleading for alimony as a sanction for his noncompliance.

At the final hearing, the trial court heard argument on the Wife’s request and orally ruled that it was finding the Husband “in contempt” and striking his alimony pleading as a sanction for his failure to comply with its previous discovery order. Accordingly, the court refused to allow the Husband to provide evidence or make argument as to his entitlement to alimony. In its written final judgment, the court found that the “Husband has failed to comply with Court Orders compelling discovery in this matter” and concluded that the “Husband’s disobedience of'Court Orders raises just cause for this court to render a judgment of default against [the] Husband.” As such, with regard to alimony, the final judgment ruled that “[n]o alimony shall be paid by either party to the other as spousal support, whether temporary, permanent, or rehabilitative.”

The Husband argues on appeal that this was error because the trial court failed to make a finding on the record that he was willfully or deliberately noncompli-ant with its discovery orders. We .agree.

Florida Rule of Civil Procedure 1.380(b)(2)(C) states: “If a party .:. fails to obey an order to provide or permit discovery ... the court in which the action is pending may make ... [a]n order striking out pleadings or parts of them ... or rendering a judgment by default against the’disobedient party.”

The standard by which [orders of dismissal or default for failure to comply with discovery requirements] shall be reviewed is whether there was an abuse of discretion.... Yet, it is for the very reason that the trial judge is granted so much discretion to impose this severe sanction that we have determined that the subject order should contain an explicit finding of willful noncompliance.

Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla. 1990) (emphasis added) (answering affirmatively the certified question of whether “an express written finding of willful or deliberate refusal to obey a court order to comply with discovery under [rule] 1.380 [is] necessary to sustain the severe sanctions of dismissal or default against a noncomplying plaintiff or defendant”); see also Neal v. Neal, 636 So.2d 810, 812.(Fla. 1st DCA 1994) (“An express written finding of willful or deliberate refusal to obey a court order to comply with discovery is necessary to sustain the severe sanctions of dismissal or default against a noncomplying plaintiff or- defendant.”); cfi Patton v. Dep’t of Health & Rehab. Servs., Office of Child Support Enft ex rel. D.A.R., 620 So.2d 1107, 1109 (Fla. 2d DCA 1993) (“The-failure to include specific reasons for the imposition of sanctions, though reversible error if attacked on plenary appeal, does not' render a judgment ’void’ as that term is used in ... rule 1.540.”). However, “no ’magic words’ are required but rather only a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Commonwealth Fed. Sav. & Loan, 569 So.2d at 1273.

In the instant case, the trial court’s order fails to include an express finding that the Husband acted deliberately and willfully in failing to comply with the court’s discovery orders. That omission is especially problematic here where the Husband did file some discovery but the Wife contended that his responses were insufficient or'meaningless. Accordingly, we reverse the portion of the final judgment that rendéis a default judgment against the Husband 'as to the issue of alimony and remand for further proceedings. On remand, the trial court may “reconsider the sanction imposed in order to determine whether there was a deliberate or willful disregard of the [trial court’s] discovery order[s].” See Tubero v. Chapnich, 552 So.2d 932, .935 (Fla. 4th DCA 1989), approved, Commonwealth Fed. Sav. & Loan, 569 So.2d 1271.

The Husband also argues on appeal that the trial court erred in calculating' child support. We’agree, and the Wife concedes, that the trial court erred in failing to apply the substantial timesharing formula set forth in section 61.30(11)(b), Florida Statutes (2015). See also § 61.30(1)(a) (mandating that the formula in subsection (ll)(b) be used “whenever any of the children are required by court order or mediation agreement to spend a substantial amount of. time with either parent”). We also conclude, and the Wife again concedes, that the trial court erred by splitting the children’s health care expenses equally instead of on a pro rata basis and in imposing. an equal division of school tuition where there is no tuition for the children’s school. We therefore reverse these portions of the final judgment' and remand for correction and recalculation of child support.

Finally, the Husband argues on appeal that the trial court erred in granting-the Wife attorney fees. However, we do not have jurisdiction over this issue because although the trial court found that the Wife is entitled to fees, it did not award an amount. See McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994) (holding that an order that only determines the. right to fees without setting an amount is a nonappealable nonfinal order).

Affirmed in- part, reversed in part, dismissed in part, and remanded for further proceedings consistent with this opinion;

LaROSE, C.J., and VILLANTI, J., Concur.

      . On appeal, the Husband also argues that there was no evidence below to support a finding that he was "in contempt” of the court’s orders. Although in its oral ruling the trial court-used the term "in contempt,” it-is clear from the record before us that the trial court struck the Husband’s alimony pleading pursuant to rule 1.380(b)(2) based on its conclusion that the Husband failed to comply with discovery orders.


author: NORTHCUTT, Judge.

text:
    IN RE ESTATE OF Lillian L. UNANUE; Robert Unanue and George Unanue, Appellants, v. Sonia A. Johnson and Casper D. Johnson, as personal representatives of the Estate of Lillian L. Unanue, Appellees.
    Case No. 2D17-178
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Robert S. Walton, Tampa, for Appellants.
    Edward C. Castagna, Jr., of Castagna Law Firm, Clearwater, for Appellees. ■
   NORTHCUTT, Judge.

On November 17, 2016, Sonia A. Johnson and Casper D. Johnson, the co-personal representatives of the estate of Lillian Unanue, filed á final accounting of the estate and a petition for discharge of personal representatives. The probate court entered an order of discharge on December 5, 2016, finding that the estate had been fully administered and properly distributed.

Two beneficiaries of the estate, Robert -and. George Unanue, filed an objection to the final accounting and petition for discharge qn December 16, 2016. In this appeal, they seek reversal of the order of discharge because the probate court improperly curtailed the time for objecting to the final accounting, in violation of Florida Probate Rule 5.400. The personal representatives have filed a notice stating that they do not oppose the appeal.

Rule 5.400(b)(6) provides that a petition for. discharge must contain a statement

that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting; and also that within 90 days after filing of the objection, a notice of hearing thereon must be served or the objec-. tion is abandoned.

In the present case, the order of discharge was entered eighteen days after the final accounting and the petition for discharge were filed. There is no date of service on the aforementioned pleadings; however, they would have been served simultaneously with or shortly after their electronic filing. The premature entry of the order of discharge therefore did not allow for consideration of the timely filed objection. Accordingly, we reverse the order of discharge and we remand for further proceedings.

Reversed and remanded.

CASANUEVA and SALARIO, JJ., Concur.


text:
    Kelvon TURNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2176
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant..
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the judgment and sentences. However, we remand the case to the trial court to enter a competency order, nunc pro tunc, to December 9, 2015. See Williams v. State, 130 So.3d 763, 764 (Fla. 2d DCA 2014).

Affirmed but remanded with instructions.

NORTHCUTT, MORRIS, and LUCAS, JJ., Concur.


text:
    A.J.S., Appellant, v. STATE of Florida, Appellee.
    Case NO. 2D16-1642
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

A.J.S. challenges an order requiring him to pay $3736.83 in restitution. After A.J.S. admitted to committing the offenses of burglary and obstructing an officer without violence, the trial court withheld adjudication of delinquency and sentenced him to one day of probation. Thereafter, the trial court conducted a restitution hearing and determined that A.J.S. and his code-fendant' owed restitution to the church they burglarized, the First Baptist Church of St. Petersburg. On appeal, A.J.S. argues that the trial court erred by ordering him to pay restitution for the purchase of Lifel-ock, Inc., memberships for thirteen church employees, which totaled $3430.83. We agree and reverse.

At the restitution hearing, Philip Gregory Lilly testified that he is the executive pastor at First Baptist Church. Mr. Lilly testified that some cash and a thumb drive had been taken during the burglary, and the thumb drive contained the home addresses, social security numbers, and birth dates of thirteen church -employees. Mr. Lilly testified that the thumb drive was never returned, so he purchased a Lifelock membership for the employees to protect their personal information, and the total cost of the memberships was $3430.83.

A trial court may order a juvenile to pay restitution pursuant to section 985.437(2), Florida Statutes (2015), “for any damage* or loss caused by the child’s offense in a reasonable amount or manner to be determined by the court.” The damage or loss at issue in this case was the loss of the thumb drive. Mr. Lilly did not assert that there was any damage or loss incurred by the church’s employees as a result of the theft. Although -there are no cases on point, we conclude that the purchase of Lifelock in this case is akin to the purchase of a security system, as it protects the victim against future harm. ■

In J.M. v. State, 658 So.2d 1128, 1129 (Fla. 2d DCA 1995), this court held that it was improper to include “the cost of the after-acquired security system in the restitution order because the relationship between the system and [the appellant’s] delinquent acts was not the significant causal relationship contemplated by the statute.” See also Rich v. State, 890 N.E.2d 44, 52-53 (Ind. Ct. App. 2008) (holding that the trial court abused its discretion in ordering the appellant to -pay restitution for the victims’ security system, reasoning that the “home is now protected from future, unrelated break-ins, and their home is in a better condition than before [the] break-in”); In re T.W., 268 Ill.App.3d 744, 205 Ill.Dec. 882, 644 N.E.2d 438, 439 (1994) (holding that trial court improperly ordered restitution for security lights after burglary because restitution “does not provide for reimbursement of the cost of security measures added by a victim following the commission of an offense”). However, we note that the theft of the personal information in the present case could, if the information were given to persons who used it improperly, place the victim at a greater risk of harm, unlike the burglary of a home.

In J.M. v. State, 661 So.2d 1285, 1285 (Fla. 4th DCA 1995), the Fourth District addressed a similar issue where the appellant pleaded guilty to grand theft auto and burglary, and the victim’s keys, which had been lost the week before, were used to steal the car. The Fourth District held that the trial court erred in requiring the appellant to pay restitution for the cost of changing the victim’s house locks. Id. at 1286. “Although prudence may have suggested that [the victim] obtain new locks for his home, there was no significant causal relation between [the victim’s] ‘loss’ in having to pay for new house locks and the offenses which appellant committed.” Id,

In the present case, Mr. Lilly purchased Lifelock to prevent possible future damages. As in J.M., although prudence may have suggested that the church or the employees purchase Lifelock, there was no significant causal -relationship between the burglary and the purchase of Lifelock. See id It was a security measure taken to protect against prospective damages.

We note that the statute criminalizing the use of personal identification information, section 817.568(15)(a), Florida Statutes (2015), allows restitution for costs acquired by the victim in clearing the victim’s credit rating and credit history. However, this presumes that there has been actual damage to the victim’s credit history and credit rating. The statute does not provide for prospective damage when a person’s identification has been used unlawfully.

Accordingly, the trial court erred in ordering A.J.S. to pay restitution for the purchase of Lifelock memberships for church employees totaling $3430.83, ánd we reverse that portion of the restitution order. The disposition and restitution orders are otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

LUCAS and BADALAMENTI, JJ., Concur.

      ; AJ.S.’s codefendant took the thumb drive.

      . None of the employees were victims of identity theft.


author: CRENSHAW, Judge.

text:
    J.R., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4833
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

The sole issue J.R. raises in this appeal of the disposition order finding him guilty of burglary of an unoccupied dwelling and grand theft, but withholding adjudication, is the- inconsistency between the oral pronouncement and the written disposition and restitution orders. At sentencing> the court orally imposed restitution in the amount of “$450 joint and several.” However, the restitution order and the disposition order did not indicate that restitution was “joint and several.” It is well settled that the oral pronouncement controls over the written order. Rodriguez v. State, 223 So.3d 1053, 1054 (Fla. 2d DCA 2017). Because the written orders did not comport with the trial court’s unambiguous oral pronouncement, we remand for the orders to be corrected to accurately reflect the court’s oral pronouncement. See Albury v. State, 779 So.2d 423, 425 (Fla. 2d DCA 2000).

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

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    SANDERS FARM OF OCALA, INC., a Florida corporation, Appellant, v. BAY AREA TRUCK SALES, INC., a Florida corporation, d/b/a Kenworth of Central Florida, Appellee.
    Case No. 2D16-819
    District Court of Appeal of Florida, Second District.
    Opinion, filed December 27, 2017

      Aaron W. Proulx of Smoak, Chistolini & Barnett, PLLC, Tampa, for Appellant.
    Suzanne Youmans Labrit, B.C.S., Brett Renton, and Ryan C. Reinert of Shutts & Bowen, LLP, Tampa, For Appellee.
   SILBERMAN, Judge.

Sanders Farm of Ocala, Inc. (Sanders), appeals a final summary judgment in favor of Bay Area Truck Sales, Inc. (Bay Area), in Bay Area’s action on a worthless check. Because the trial court erred in determining that Bay Area had established Sanders’ intent to defraud as-a matter of law and a factual issue remains for resolution, we reverse and remand for further proceedings.

Bay Area filed its complaint and later an amended complaint against Sanders alleging a count under section 68.065, Florida Statutes (2015), to recover treble damages on a worthless check and a count in the alternative to recover on a bond Sanders posted, Bay Area alleged that it performed repairs on a truck for Sanders, that Sanders presented a check to induce Bay Area to release the truck, that Bay Area released the truck, and that Sanders then stopped payment .on the check with the intent to defraud Bay Area. In the amended complaint, Bay Area added that Sanders’ act of stopping payment constituted a false statement knowingly made to induce Bay Area to release the truck in reliance on the check as payment.

Sanders filed an answer and 'affirmative defenses and denied the allegations as to fraud and an intent to defraud. Sanders raised several affirmative defenses, including that Bay Area committed fraud on Sanders by misrepresenting the type of work to be done and increasing the bill from $413 to $4655.46. Sanders also asserted that it placed the disputed funds in the registry' of the court and that Bay Area’s sole remedy was to recover those funds if it could prove its case. In addition, Sanders alleged estoppel and waiver as affirmative defenses based on the fraud Bay Area perpetrated on Sanders.

Bay Area did not file a reply or conduct any further discovery but instead filed its motion for summary judgment. Bay Area asserted that under section 68.065 a maker is liable if payment has beén stopped on a check after receipt of goods or services rendered. It argued that the intent to defraud is evident from such conduct, relying on its interpretation of dicta in Madness, L.P. v. DiToceo Konstructlon, Inc., 873 So.2d 427 (Fla. 4th DCA 2004). Because Sanders stopped payment after Bay Area performed services and released the truck, Bay Area argued that it was entitled to summary judgment on the worthless check charge as a matter of law.

Bay Area and. Sanders each filed an affidavit for the trial court to consider. The affidavit of Kerk Sanders, the principal of Sanders, asserted that -at the time he wrote the check he did not believe he had any rights although- Bay Area “had violated state law by failing to provide [him] the appropriate notifications and had performed work far in excess of that which [he] had originally authorized.” He wrote the check under protest and so advised Bay Area. After learning from his attorney that he could bond off the obligation, he stopped payment on the check and posted a bond. He added that at no time did he intend to defraud Bay Area but rather that Bay Area had intended to defraud him. He also- stated that by posting the bond he showed that he was not intending to defraud anyone; instead, he was “willing to pay the fair amount that this court determines based upon the facts in question.”

At the hearing on the motion for summary judgment, the trial court agreed with Bay Area’s argument, based on Madness, that Bay Area had established intent to defraud as a matter of law. In interpreting Madness, the trial court stated that “if you present the check, you get the object, and then you stop payment, boom, intent to defraud.”

The appellate standard of review for a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000); Gator Boring & Trenching, Inc, v. Westra Const. Corp., 210 So.3d 175, 181 (Fla. 2d DCA 2016). On a summary judgment motion, the movant must establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Volusia County, 760 So.2d at 130; Gator Boring, 210 So.3d at 181. And, “[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Gator Boring, 210 So.3d at 182 (alteration in original) (quoting Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015)). In Gator Boring, this court determined that the movant had failed to show as a matter of law that a claim of lien was fraudulent and that whether the lien was fraudulent within the meaning of the statute was an issue of fact that remained to be determined at trial. Id. at 183-84.

Section 68.065(3)(a) of the worthless check statute allows for treble damages in addition to the amount owing if a maker stops a check with intent to defraud and fails to make payment. The statute provides in pertinent part as follows:

In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to the payee, in addition to the amount owing upon such payment instrument, for damages of triple the amount so owing.

§ 68.065(3)(a) (emphasis added). Bay Area appears to argue that the statute essentially provides for per se fraud when a person writes a check after services are rendered and then stops payment on the check. In Bay Area’s view, the sequence of events conclusively establishes the intent. We cannot agree.

The issue of fraud is not ordinarily a proper subject for summary judgment. Graef v. Hegedus, 698 So.2d 655, 656 (Fla. 2d DCA 1997); Bowman v. Barker, 172 So.3d 1013, 1017 (Fla. 1st DCA 2015). “Fraud is a subtle thing, requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud.” Graef, 698 So.2d at 656 (quoting Rosen v. Zoberg, 680 So.2d 1050, 1052 (Fla. 3d DCA 1996), disapproved of on other grounds by Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189 (Fla. 2003)).

In Madness, which Bay Area and the trial court relied upon, the Fourth District considered section 68.065, Florida Statutes (2001). In doing so, the Fourth District stated the elements of fraud as follows:

(1) a false statement of fact; (2) known by the defendant to be false at the time that it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage or injury.

Madness, 873 So.2d at 429 (quoting Nat’l Ventures, Inc. v. Water Glades 300 Condo. Ass’n, 847 So.2d 1070, 1074 (Fla. 4th DCA 2003)). The Fourth District recognized that under the statutory language the issue was whether there was an intent to defraud at the time the defendant notified the bank to stop payment. Id.

The facts in Madness were that an owner of a business stopped payment on a check to a contractor who was to renovate the owner’s building. Id. at 428. The owner stopped payment based on disputes over contract negotiations. Id. Significant to the Fourth District’s decision was the fact that when the owner stopped payment the contractor had not yet performed any work on the property; thus, the check “was an advance payment for work to be performed in the future, not payment for goods or services received.” M. at 429.

The Fourth District set out a hypothetical in which it stated, “If A, on Friday, gives a painter a check for $1,000 to paint his house, and over the weekend the painter does the work, A’s stopping payment on Monday could subject A to triple damages under the statute, because the painter did the work in exchange for the payment.” Id at 430. In addition, the Fourth District stated, “An example of a factual situation in which the maker of the check could be held for triple damages can be found in Maung v. National Stamping, LLC, 842 So.2d 214 (Fla. 3d DCA 2003), in which the maker had paid by check for the merchandise, but stopped payment after receiving it.” 873 So.2d at 430. In its references to the hypothetical and Maung, the Fourth District stated those were situations where the maker could be held liable, not that they would be held liable as a matter of law.

In fact, in Maung, the Third District reversed the partial summary judgment entered in favor of the plaintiff on the worthless check count when the defendant had stopped payment after receiving a shipment of cigarettes from the plaintiff. 842 So.2d at 215-16. The defendant asserted an affirmative defense that some of the merchandise was counterfeit and that he had paid for all of the merchandise that was not counterfeit. The plaintiff did not file a reply to the affirmative defense. Id. at 215.

The Third District recognized that for the statute to be applicable the payment must be stopped on a check with an intent to defraud. See id. at'216. There, the plaintiff had failed to allege in its complaint or attempt to show in its motion for summary judgment that the defendant had stopped payment on the check with an intent to defraud. Id. Therefore, the plaintiff had failed to establish its entitlement to judgment as a matter of law. Id. In addition, the plaintiff had failed to negate the affirmative defense. Thus, the Third District reversed and remanded for further proceedings. Id.

Bay Area argues that Sanders did not follow the proper procedure to bond off the obligation because the funds were deposited in the court registry after payment was stopped on the check. But in Baggett v. Clark, 161 So.3d 491, 493 (Fla. 5th DCA 2014), the Fifth District recoge nized that

even if Baggett was not justified hi stopping payment based on Clark’s breach of contract, the evidence, taken in the light most favorable to Baggett, was that his motivation was not to defraud Clark, but to. recoup the losses that he believed Clark’s breach of contract was going to cause.

Thus, the court reversed the summary judgment because a question of fact remained with, respect to the defendant’s intent. Id.

Here, the trial court determined as a matter of law that because Sanders stopped payment after receiving the services, “boom, intent to defraud.” The trial court erred in so ruling as stopping payment on a check does not conclusively establish the intent to defraud. .And Sanders raised affirmative defenses that Bay Area committed fraud on Sanders and that Bay Area should be estopped based on its fraud. Kerk Sanders’ affidavit reflected that he stopped payment on the check when he learned from counsel that he could bond off the obligation, see § 559.917, Fla. Stat. (2015), and that he never had an intent to defraud Bay Area; rathér, it was Bay Area that intended to defraud him. See Sharrard v. Ligon, 892 So.2d 1092, 1097 (Fla. 2d DCA 2004) (recognizing that a lienor’s consultation with counsel before it files a claim of lien tends to show that the lienor was acting in good faith and is a factor to consider in determining whether a lien is fraudulent), superseded by statute on other grounds as stated in Newman v. Guerra, 208 So.3d 314, 319 (Fla. 4th DCA 2017). Further, by posting the bond, Kerk Sanders asserted that he demonstrated that he was not intending' to defraud anyone. The fact that Sanders may have not followed the procedures correctly in posting the bond does not mean that Sanders- had an intent to defraud.

Viewing the record evidence in the light most favorable to Sanders, a question of fact remains for resolution, precluding summary judgment. See Baggett, 161 So.3d at 493. Therefore, the trial court erred in granting summary judgment when intent to defraud remained an issue. Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur,


text:
    J.J.J., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2350
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017.

      Howard L. Dimmig, II, Public Defender, and Amanda V. Isaacs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M, Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

J.J.J. ’appeals the juvenile court’s disposition order withholding adjudication but finding that sh'e committed the delinquent act of possession of a firearm by a minor. See § 790.22(3), (5), Fla, Stat. (2014). The State concedes that the corpus delicti of the charge consisted solely bf inadmissible evidence. We agree and reverse because without this evidence J.J.J. was entitled to a dismissal.

At the adjudicatory hearing, the State called a single witness, Officer Chris Ross-man. He testified that he was dispatched to the scene of a hit-and-run accident, Upon his arrival, he observed that one of the vehicles was unattended and contained two rifles wedged between the front seats and the center console. When the officer learned that JJ.J.’s father owned the unattended vehicle, he proceeded to the father’s nearby residence to question him.

On direct examination, the officer testified that he asked J.J.J.’s father “if he knew where his vehicle was.” The defense promptly objected that the officer’s recitation of JJJ.’s father’s response would be hearsay. The court agreed but ruled that the officer could testify to what he did after speaking with JJ.J.’s father. The State then- proceeded with questioning as follows:

STATE: So based on the things you heard from [J.J.J.’s father] what did you determine it was necessary to do at that point?
WITNESS: Locate [J.J.J.].
THE COURT: And why is it important for you to locate [J.J.J.]?
WITNESS: Based on the information that I obtained from [JJ.J.’s father] she would have been the—.

Once again the defense objected, insisting that the officer’s statement constituted inadmissible hearsay. The court overruled the objection, reasoning that the statement was “just explaining why [the officer] went to find [J.J.J.]. So he went to find [J.J.J.] based on statements from [JJ.J.’s father].”

The officer testified that he located J.J.J. several hours later. When the State inquired as to what J.J.J. told him during the subsequent interview, the defense once again objected, this time on the grounds of corpus delicti. Defense counsel argued that the State had presented no evidence, other than the previously admitted hearsay, of the crime of possession of a firearm by a minor. Once again the court overruled the objection. The officer then recounted J.J.J.’s admission to driving the vehicle and being in possession of the firearms. The officer verified that J.J.J. was a minor at the time of the offense.

After presentation of the State’s case, defense counsel declined to call any witnesses, present evidence, or make a closing argument, believing that the State had failed to prove the corpus delicti of the offense. Nonetheless, the court found that the offense of hit-and-run had occurred, which furnished the officer with probable cause to question J.J.J.’s father. In turn, the court reasoned that the officer's questioning pointed to J.J.J., who subsequently provided the incriminating statements.

As the State concedes in this appeal, the officer’s testimony constituted inadmissible hearsay and was not otherwise rendered admissible by framing the evidence as explaining the officer’s state of mind or demonstrating a logical sequence of events. “When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label.” Keen v. State, 775 So.2d 263, 274 (Fla. 2000) (first citing § 90.801(1)(c), Fla. Stat. (1999); and then citing Wright v. State, 586 So.2d 1024, 1030 (Fla. 1991) (noting that when the only relevance of an out-of-court statement is to prove the truth of the matter asserted, the statement is hearsay and is not rendered admissible when the nonhearsay purpose for which it was admitted is not relevant to the issues in dispute)). Rather, the sole purpose of the officer’s testimony was to link J.J.J. to the crime. See Walker v. State, 77 So.3d 890, 894-95 (Fla. 2d DCA 2012) (holding that evidence from an unidentified source that the victim received “information from the streets about who potentially [committed the charged crimes]” was inadmissible hearsay) (alteration in original)); Stokes v. State, 914 So.2d 514, 517 (Fla. 4th DCA 2005) (holding that the detective’s testimony that “[the defendant] became a suspect after [the detective] conducted a number of interviews with other people” was inadmissible hearsay as the statement could have led the jury to believe “that non-testifying witnesses made accusatory statements ... about the defendant” or “that testifying witnesses gave police information about [defendant’s involvement which was not presented to the jury”).

Without the officer’s hearsay testimony, the State failed to present any evidence proving JJJ.’s guilt. In the absence of proof of the corpus delicti of the offense, JJJ.’s incriminating statements were inadmissible. “It is a longstanding tenet of common law that a defendant’s confession is inadmissible to prove his guilt unless the State separatély proves the corpus delicti, i.e., the ‘body of the crime.’” Shelden v. State, 38 So.3d 214, 216 (Fla. 2d DCA 2010) (quoting Franqui v. State, 699 So.2d 1312, 1317 (Fla. 1997)).

The State failed to prove the offense of possession of a firearm by a minor. Therefore, we reverse and remand for the trial court to dismiss the charge against J.J.J.

Reversed and remanded with directions.

NORTHCUTT, KELLY, and SALARIO, JJ., Concur.

      . The State did not charge J.J.J. with the offense of leaving the scene of an accident. See § 316.061(1), Fla. Stat. (2014).

      . Subsequently, the court explained that it "did not admit what the father said but ... the policeman’s conclusion that she was the person he needed to talk to.”


author: Per Curiam,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Jennifer Ann HAWKINSON and Brian Reynolds Peters, Appellees.
    No. 1D16-5692
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Rehearing Denied February 15, 2018
    Rhonda B. Boggess and Gina P. Grims-ley of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    William A. Bald, Benjamin -E. Richard, and Lee T. Griffin of Pajcic & Pajcic, P.A., Jacksonville, for Appellee Jennifer Ann Hawkinson.
    No appearance for Brian .Reynolds Peters, Appellee.
   Per Curiam,

State Farm Mutual Automobile Insurance Company appeals the partial final judgment entered in favor of Appellee Jennifer Ann Hawkinson in her suit for uninsured motorist (UM) benefits under her parents’ insurance policy. The policy provided UM coverage to the parents’ relatives and it defined “relative” to include a related person who “resides primarily” with the parents, as well as the parents’ “unmarried and unemancipated child away at school.” The trial court determined that Ms. Hawkinson met the definition of “relative” because, at the time of the accident for which she was seeking' UM benefits, she was unmarried, unemancipated, and away at college. Athough there was conflicting evidence that reasonably could have supported a contrary finding regarding Ms. Hawkinson’s emancipation status, we are constrained to affirm because the finding made by the trial court is supported by competent substantial evidence. See Bonich v. State Farm Mut. Auto. Ins. Co., 996 So.2d 942, 944 (Fla. 2d DCA 2008) (“While the question being litigated was the legal question of coverage, that question turned on the resolution of disputed issues of fact concerning [the insured’s child’s] residence.' The trial court held an evidentiary hearing to resolve those, disputed issues of fact, and it then reached a legal conclusion on coverage based on its findings of fact. We review the trial court’s findings of fact in a declaratory judgment action to determine whether they are supported by competent, substantial evidence.”). And, based on this disposition, we need not address the propriety of. the trial court’s alternative determination that Ms. Hawkinson met the policy’s definition of relative because she still “reside[d] primarily” with her ■ parents despite significant indicia that she had moved out for good.

Affirmed.

Wetherell, Ray, and Winokur, JJ., concur.

      . The partial final judgment is appealable even though Ms. Hawldnson's claims against the alleged tortfeasor, Appellee Brian Reynolds Peter's, remain pending in the trial court because the judgment resolves all of her claims—except.án abated bad faith claim— against State Farm. See Fla. R. App. P. 9.110(k); Fridman v. Safeco Ins. Co. of III., 185 So.3d 1214, 1227-28 (Fla. 2016).