author: PER CURIAM.

text:
    Robert RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-215
    District Court of Appeal of Florida, Third District.
    Opinion filed October 25, 2017.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   PER CURIAM.

Robert Rodriguez appeals a final judgment of conviction and sentence following a jury trial. The amended information charged Rodriguez with: kidnapping a child under the age of 13, with aggravated child abuse and sexual battery, in violation of section 787.01(3)(a), Florida Statutes (2013); aggravated child abuse, in violation of section 827.03(2), Florida Statutes (2013); and sexual battery by a person 18 years of age or older on a person less than 12 years of age, in violation of section 794.011(2), Florida Statutes (2013). The jury returned a verdict of guilt on all three counts.

Rodriguez raises six issues: an alleged misrepresentation by the prosecutor regarding prior sexual abuse suffered by the child victim; improper bolstering by an expert pediatrician and child sexual abuse medical expert regarding the child victim’s credibility; an inadequate Nelson hearing; denial of a motion to authorize payment under section 29.007(4), Florida Statutes (2015), for a polygraph examination, contended to have been indispensable to Rodriguez’s plea negotiations; allegedly improper comments by the prosecutor inviting a non-unanimous verdict on the theory of aggravated child abuse; and the absence of a written finding of competency following an oral pronouncement by the trial court to that effect.

After a thorough review of the record in the case and, in particular, upon application of the appropriate standards of review to each of the issues raised by Rodriguez, we reject Rodriguez’s first five issues on appeal—observing that the child victim’s statements were corroborated by physical evidence as well as consistent accounts given by the child to the child’s mother, law enforcement personnel, a fire rescue officer who responded to the burn report, and a nurse. The pediatrician and child sexual abuse expert who testified in the case considered these facts in formulating his opinion, distinguishing this case from the diagnosis of “sexual abuse by history” held to require reversal and a new trial in Ramayo v. State, 132 So.3d 1224 (Fla. 3d DCA 2014).

The sixth issue on appeal, however, warrants a limited reversal and remand for the entry of a written order finding Rodriguez was competent to proceed to trial. Gordon v. State, 219 So.3d 189, 197 (Fla. 3d DCA 2017); Fla. R. Crim. P. 3.212(b).

Affirmed in part; reversed and remanded for the limited purpose of entering an order consistent with the trial court’s oral pronouncement that Rodriguez was competent to proceed to trial.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Two of the issues were not adequately preserved at trial, requiring a review for "fundamental error.” Bell v. State, 108 So.3d 639, 650 (Fla. 2013). We conclude that the cumulative effect of the closing argument excerpts raised here by Rodriguez did not deprive him of a fair trial.

      . As trial was about to commence, the trial court ordered an emergency competency evaluation. The parties stipulated that Rodriguez was competent to proceed, and the trial court’s finding on that point appears in the applicable transcript. A written order to that effect does not appear in the record or docket, however. The state acknowledges that reversal and remand for the entry of such an order is appropriate.


source: Caselaw Access Project

license: Public Domain

text:
    Zevin MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-306
    District Court of Appeal of Florida, Third District.
    Opinion filed October 25, 2017
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant- Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Zevin Mitchell appeals the trial court’s oral revocation of probation and failure to reduce the court’s oral rulings to a written order. We reverse and remand the case to the - trial court to enter such an order. Joachin v. State, 199 So.3d 439 (Fla. 3d DCA 2016). The State acknowledges that reversal and remand for this purpose is required. Entry of an order conforming with the oral rulings at the revocation hearing is a ministerial act, such that Mr. Mitchell need not be present.

Reversed and remanded for the limited purpose set forth in this opinion.


author: Per Curiam.

text:
    Earl T. SHANNON, individually and as Personal Representative of the Estate of Starr T. Shannon, deceased, John J. Shannon, individually, Paul T. Shannon, individually, Mark R. Shannon, individually, and Four Starr Group, LLC, a Florida Limited Liability Company, Appellants, v. H & R HYDRO-PULL, INC., d/b/a H & R Power Systems, a Florida corporation, Appellees.
    Nos. 4D16-1781
    4D16-1782
    District Court of Appeal of Florida, Fourth District.
    October 25, 2017

      Alexander D. Brown of The Concept .Law Group, P.A., Fort Lauderdale, for appellant/cross-appellee.
    E. Scott Golden of Golden Law, Fort Lauderdale, for appellee/cross-appellant.
   Per Curiam.

We agree with appellant Earl Shannon that the final judgment is ambiguous in that it appears to create a double recovery from both Earl Shannon, individually and the estate of his mother, Starr T. Shannon. Appellee H <& R Hydro-Pull, Inc. is entitled to recover a total of $17,043.54 in principal jointly from Earl Shannon, individually, and Starr T. Shannon’s estate. H & R cannot recover the same damages twice. We remand that portion of the final judgment to clarify that Earl Shannon, individually and Earl Shannon, as the Personal Representative of the Estate of Starr T. Shannon, are jointly liable for $17,043.54.

We reverse the order granting summary final judgment to the defendants on H & R’s lien foreclosure action. The claim of lien was recorded October 1, 2008. The trial court granted summary judgment on the ground that the lien was not filed .within 90 days of H & R’s final furnishing of labor, services, or materials. See § 713.08(5), Fla. Stat, (2008). The facts on summary judgment are viewed in the light most favorable >to the non-moving party. Viewed under this standard, H & R did not complete performance of the contract until it submitted all documentation required by the Town of Davie in August or September, 2008. Using either date, the lien was timely recorded.

On the issues of prejudgment interest and attorney’s fees against the estate, it does not appear that, apart from ple'ading for these things, H & R filed a motion seeking, those items in the circuit court. Thus it waived its entitlement to these items. See Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258, 264 (Fla. 4th DCA 2010) (claim for prejudgment interest was waived when raised for the first time on appeal).

We have considered the other' issues raised on appeal‘and find them to be without legal merit.

Affirmed in pari; reversed in part and remanded.

Gross, Ciklin and Klingensmith, JJ., concur.


text:
    Lisa BELL, Appellant, v. Zachary BROCH, Appellee.
    No. 4D16-3563
    District Court of Appeal of Florida, Fourth District.
    November 1, 2017

      Lisa Bell, Palm Beach Gardens, pro se.
    Gary D. Weiner and Scott M. Weiss of Weiner & Weiss, LLC, Boca Raton, for appellee.
   ON MOTION FOR REHEARING

Per Curiam.

We deny appellee’s motion for rehearing, but withdraw our previous opinion and substitute the following in its place.

The wife appeals a final judgment of dissolution of marriage, raising multiple issues on appeal. We affirm without discussion all issues except one. We find merit in the wife’s challenge to child support awarded to the husband and, as such, we reverse on that issue.

The parties were married in 2001 and had two children. Following a petition for dissolution of marriage, the - parties entered into a Partial Mediated Marital Settlement Agreement (“MSA”), which decided all matters except for • child support, timesharing, and the parenting plan. In the MSA, the parties stipulated that for purposes of calculating child support, the husband’s gross income is “$22,805 month-⅛” and “the Wife’s income shall be imputed at zero until September 1, 2018 and thereafter at $27,500 yearly.” The wife’s financial affidavit introduced into evidence at trial also showed the wife had no income and had been a homemaker for fifteen years. The trial court entered a final judgment of dissolution of marriage adopting and incorporating the MSA and awarding 100 percent of the timesharing to the husband. The order dissolving the marriage did not decide the issue' of child support. The wife filed a notice of appeal. A few months later, the trial court issued an amended final judgment ordering the wife to pay $1,941 per month in child support.

The wife challenges the- trial court’s award of child support because it is in conflict with the MSA. The husband argues that this court does not have jurisdiction over the child support order because it was entered after the wife filed a notice of appeal. We find that the wife’s notice of appeal was premature. The order dissolving the parties’ marriage was not a final judgment because it did not decide the issue of child support. See Wilson v. Wilson, 906 So.2d 356, 357 (Fla. 1st DCA 2005) (holding that an order dissolving marriage but reserving jurisdiction over child support is not final). However, jurisdiction vested in this court upon the trial court’s issuance of the amended final judgment which resolved the issue of child support. See Fla. R. App. P. 9.110(Z). Therefore, the issue of child support is properly before this court.

Because the wife prematurely appealed, the record does not include all matters occurring between the order dissolving the marriage and the amended final judgment. Despite an inadequate record, “when the error appears on the face of the judgment, it should be corrected.” Larocka v. Larocka, 43 So.3d 911, 913 (Fla. 5th DCA 2010). See also Kanter v. Kanter, 850 So.2d 682, 684 (Fla. 4th DCA 2003) (“[A]n appellate court may reverse an order or judgment even in the absence of an adequate record where such order or judgment is fundamentally erroneous on its face.”); McCants-Collie v. Collie, 909 So.2d 360, 360-61 (Fla. 4th DCA 2005) (reversing error apparent on the face of the record in calculating child support).

The trial court’s award of $1,941 per month in child support to the husband is error on the face of the judgment because it is in conflict with the terms of the MSA. In arriving at this figure, the trial court used a child support guidelines worksheet which listed the wife’s net monthly income as $7,302. This was contrary to the MSA, wherein the parties stipulated that for purposes of calculating child support, “the Wife’s income shall be imputed at zero until September 1, 2018 and thereafter at $27,500 yearly.”

A marital settlement agreement as to child support is binding on the parties, subject to the court’s review that it is in the best interests of the children. Chovan v. Chovan, 90 So.3d 898, 901 n.1 (Fla. 4th DCA 2012); Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996). See also Armstrong v. Armstrong, 623 So.2d 1216, 1217 (Fla. 4th DCA 1993) (holding that a pretrial stipulation as to the parties’ relative incomes is binding upon the parties and the court). The MSA became binding when the trial court adopted and incorporated the MSA into the order dissolving the marriage. See Fla. Fam. L. R. P. 12.740(f)(2).

In light of the foregoing, and based on the record before us, the child support guidelines worksheet and the amended final judgment ordering the wife to pay $1,941 per month in child support appear to be in conflict with the terms of the MSA. Accordingly, we reverse and remand for the trial court to resolve the apparent conflict and, if necessary, recalculate the wife’s child support obligation. See McCants-Collie, 909 So.2d at 360 (finding error on the face of the record where the trial court found the husband’s income to be $5,577 but the child support guidelines worksheet reflected an income of $577); Chovan, 90 So.3d at 898 (reversing where settlement agreement stated child support would be based on two children, but final judgment encompassed three children); Griffith v. Griffith, 860 So.2d 1069 (Fla. 1st DCA 2003) (reversing where final judgment disregarded parties’ settlement agreement concerning child support). We affirm the remaining issues.

Affirmed in part, reversed in part, and remanded.

Warner, Damoorgian and Levine, concur.

      . The wife also raises an issue with respect to her motion for contempt of alimony. Because this concerns matters that occurred after the amended final judgment, this court is without jurisdiction to consider this issue. See Fla. R. App. P. 9.110(h); Lauderdale Marine Ctr., Ltd. v. MYD Marine Distribs., Inc., 31 So.3d 256, 257 (Fla. 4th DCA 2010).


text:
    Keren EDELSBURG, Appellant, v. Iehuda TZYNDER, Appellee.
    No. 3D17-1074
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017
    Kahn <⅞ Resnik, P.L., and Marcy S. Resnik and Jessica L. Bouis (Dania), for appellant.
    Law Offices of Aimee Gross, P.A., and Aimee Gross (Fort Lauderdale), for appel-lee.
    Before LAGOA, SCALES and LUCK, JJ.
   On Concession of Error

PER CURIAM.

Appellant Keren Edelsburg challenges the trial court’s non-final order holding her in criminal contempt. Upon appellee’s proper concession of error, we quash the trial court’s April 26, 2017 contempt order, and remand to the trial court to adjudicate Appellee’s March 6, 2017 motion. We also find that in the interests of pursuing fairness, further proceedings in this case should be held before a different trial judge. See Lo v. Lo, 878 So.2d 424, 426 (Fla. 3d DCA 2004).

Order quashed; remanded with directions.

      . Appellee Iehuda Tzynder's March 6, 2017 contempt motion sought to hold Appellant in civil, rather than criminal, contempt. While Appellee conceded the trial court erred by holding Appellant in criminal contempt, Ap-pellee, without citation to authority, suggested that this Court "convert" the trial court’s criminal contempt order into' a civil contempt order and rewrite the order’s flawed purge provision. We decline Appellee’s invitation.


author: ORFINGER, J. EISNAUGLE, J.,

text:
    Darrius MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D14-3615
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    ' Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant • Attorney General, Daytona Beach, for Appellee. .
   ORFINGER, J.

Darrius Montgomery, seventeen years old at the time he committed his offenses, was convicted of attempted robbery with a firearm, aggravated assault with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm. On each count, the jury found that he discharged a firearm resulting in great bodily harm but not death. Montgomery was later sentenced to twenty-five years’ imprisonment with twenty-five-year mandatory minimum terms for the attempted robbery and aggravated battery'offenses, twenty years* imprisonment with a twenty-year mandatory minimum term for the aggravated assault, and thirty years’ imprisonment with a twenty-five-year mandatory minimum term for the attempted felony murder. All sentences were imposed pursuant to the 2012 version of the 10-20-Life statute, section 775.087(2), Florida Statutes, and ordered to.be served concurrently.

While his appeal was pending, Montgomery filed a timely motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that he is a juvenile offender and entitled tó a juvenile sentencing hearing and judicial review hearing in accordance with the procedures outlined in chapter 2014-220, Laws of Florida, codified in sections 776.082, '921.1401, and' 921.1402, Florida Statutes (2014), for the attempted robbery, aggravated battery, and attempted felony murder convictions. The trial court agreed in part-, and ordered a new sentencing hearing for those three convictions. After the heai’ing, the State submitted a memorandum of law, conceding that Montgomery was entitled to a review of his sentence after twenty years pursuant to section 921.1402(2)(d). The trial court then entered an order granting review of Montgomery’s sentences after twenty years but did not issue amended sentencing orders. Montgomery filed a second rule 3.800(b)(2) motion, asking the court to vacate his sentences for those three convictions and to hold a juvenile sentencing hearing,under section 775.082(3)(c), and make the necessary findings in accordance with sections 921.1401 and 921.1402 that he is a juvenile offender and entitled to a sentencing review hearing after twenty years. Montgomery also asked the court to vacate the mandatory minimum sentences imposed under section 775.087(2) on all four of his convictions, arguing that, as to juveniles, the 2014 juvenile sentencing statutes supersede the mandatory minimum sentences required by section 775.087(2). The trial court disagreed, rescinded its earlier order, and held that Montgomery was not entitled to a review hearing after serving twenty years.

On appeal, Montgomery argues that he is entitled to resentencing as his sentences violate the Eighth Amendment to the United States Constitution and that the 10-20-Life statute no longer applies to juvenile offenders tried and convicted as adults.'We agree in part and reverse. The legality of a sentence is a question of law, and thus, subject to de novo review. Pinkard v. State, 185 So.3d 1289, 1289-90 (Fla. 5th DCA 2016). Similarly, our review of the constitutionality of a sentence is de novo. Peterson v. State, 193 So.3d 1034, 1038 (Fla. 5th DCA 2016).

The unsettled state of juvenile sentencing for nonhomicide offenders began with Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), when the Supreme Court, held that the United States Constitution prohibits the imposition of a life without parole sentence on a' juvenile offender who did not commit a homicide. The Court explained that a state is not required to guarantee the juvenile offender eventual release, but if it imposes a life sentence, it must provide the juvenile with some realistic opportunity to obtain release before the end of that term. Following Graham, a unanimous Florida Supreme Court held that “the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonhomicide offender’s sentence does not afford any ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” Henry v. State, 175 So.3d 675, 679 (Fla. 2015) (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011). In reaching this holding the Florida Supreme Court reasoned that the “Supreme Court’s long-held and consistent view that juveniles are different” supported the conclusion that “the specific sentence that a juvenile nonhomi-cide offender receives for committing a given offense is not dispositive as to whether the prohibition against cruel and unusual punishment is implicated.” Id. at 680. Accordingly, it determined that Graham was intended to ensure that “juvenile nonhomicide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release, based on a demonstration of maturity and rehabilitation.” Id. The holding in Henry was not predicated on the length of the sentence, but rather on the status of, and the opportunity afforded, the juvenile offender for early release. Johnson v. State, 215 So.3d 1237, 1240 (Fla. 2017); Henry, 175 So.3d at 680 (stating that “Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating [juvenile nonho-micide] offenders for demonstrable maturity and reform in the future”).

In Kelsey v. State, 206 So.3d 5 (Fla. 2016), the supreme court reiterated its reasoning that the constitutionality of a juvenile offender’s sentence is not based on the length of the sentence, but rather, it is dependent upon whether the sentence provided the offender with a meaningful opportunity for early release based on maturation and rehabilitation. Id. at 9. Based on its decision in Henry, which it described as “unequivocal,” it reaffirmed that -all juvenile offenders whose sentences met the standard defined by the Legislature in chapter 2014-220, Laws of Florida, which includes any sentence longer than twenty years, are entitled to judicial review, not simply those term-of-years sentences that are “de facto life,” Id. at 9-11. Thus, the Florida Supreme Court has “determined that Graham prohibits juvenile nonhomi-cide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism.” Johnson, 215 So.3d at 1240. The length of the sentence alone is not dispositive. Rather, the Florida Supreme Court has concluded that the Eighth Améndment, as read through Graham, requires a review mechanism for nonhomicide juvenile offenders because “any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.” Id. (citing Henry, 175 So.3d at 680). Our supreme court has opined that reading Graham, Henry and Kelsey together requires that juvenile nonhomicide offenders receive sentences that provide a meaningful opportunity for early release based on demonstrated maturity and rehabilitation during their natural lifetimes. Id. at 1239.

In an effort to comply with Graham, in 2014, the Legislature passed chapter 2014-220, Laws of Florida, which provided judicial review for juvenile offenders, who were tried as adults, and received sentences of more than twenty years’ incarceration, with certain exceptions. In considering a remedy for a Graham violation, our supreme court concluded in Horsley v. State, 160 So.3d 393, 394-95, 405 (Fla. 2015), that chapter 2014-220, Laws of Florida, brought Florida’s juvenile sentencing statutes into compliance with Graham and provided an appropriate remedy for all juvenile offenders whose sentences are unconstitutional even when, as here, the juvenile’s offense was committed prior to the July 1, 2014, effective date of the legislation. See also Falcon v. State, 162 So.3d 954, 963 (Fla. 2015).

Following. Graham, Henry and Horsley, this Court in Peterson v. State, 193 So.3d 1034 (Fla. 5th DCA 2016), review denied, No. SC16-1211, 2017 WL 2705649 (Fla. June 23, 2017), explained that, regardless of whether a juvenile offender’s sentence is a de facto life sentence, a lengthy term-of-years sentence that does not afford a non-homicide juvenile offender a meaningful opportunity for early release based on demonstrated maturity and rehabilitation violates Graham and the Eighth Amendment, requiring resentencing with retroactive application of the 2014 sentencing framework, We concluded that the supreme court’s admonition that a constitutional sentence is one that provides a meaningful opportunity for early release is not satisfied simply because the juvenile may be released from prison at some point before the conclusion of his or her life expectancy. Peterson, 193 So.3d at 1038. As a result, we held that Peterson’s fifty-six-year sentence could not stand under Graham and its progeny, and remanded for the trial court to resentence him under the 2014 juvenile sentencing statutes pursuant to Horsley. Id. at 1039; see also Burrows v. State, 219 So.3d 910, 911 (Fla. 5th DCA 2017) (holding. defendant with concurrent twenty-five-year sentences was entitled to judicial review after .twenty years); Tyson v. State, 199 So.3d 1087, 1088 (Fla. 5th DCA 2016) (holding defendant with aggregate forty-five-year sentence-was entitled to judicial review after twenty years).

Based on these precedents; we agree that the trial court erred in denying Montgomery’s rule 3.800(b) motions. We reverse Montgomery’s' sentences for "attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm and remand for resentencing in conformance with the 2014 juvenile sentencing statutes, which includes the judicial review provided by section 921.1402. However, Montgomery is not entitled to resentencing or a review hearing on the aggravated assault with a 'firearm conviction. See Kelsey, 206 So.3d at 11 (holding Graham required judicial review hearings for juvenile offenders who are sentenced to terms longer than twenty years).

Montgomery’s challenge to the imposition of the twenty-five-year mandatory minimum prison sentences under ’ section 775.087(2), Florida Statutes (2012), commonly known as the' 10-20-Life ' statute," requires us to consider the interplay be-; tween' the mandatory minimum sentences imposed here and the juvenile sentencing scheme, which mandates a review hearing with the possibility of early release. The 10-20-Life statute provides for mandatory minimum sentences for certain offenses when a defendant possesses a firearm (minimum term, of imprisonment of either three years or ten years, depending on the offense), discharges a firearm (minimum term of imprisonment of twenty years), or discharges a firearm and as the result of the discharge, inflicts death or great bodily harm (“minimum term of imprisonment, of not less than 25 years and not more than a term of imprisonment of life in prison”). § 775.087(2)(a)(l)-(3), Fla. Stat. (2012);-At the same time, -under the 2014 juvenile sentencing statutes, a juvenile offender who commits a life or first-degree felony punishable by life is entitled to an individualized sentencing hearing under sections 775.082(3) and 921,1401, Florida Statutes (2014). And, a juvenile nonhomicide offender “sentenced to a term of 20 years or more under s. 775.082(3)(c) is entitled to a review of his or her sentence after 20 years.” § 921-.1402(2)(d), Fla. Stat. (2014). Thus, we must determine if a trial court may release a juvenile after the twenty-year judicial review even if a portion- of the mandatory minimum sentence remains.

We review, questions of statutory interpretation de novo. Patrick v. Hess, 212 So.3d 1039, 1041 (Fla. 2017). Our goal “is to determine legislative intent.” Crews v. State, 183 So.3d 329, 332 (Fla. 2015). To do so, we begin with the plain meaning of the text of the statute. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013). “When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005). The statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent. Id.

One rule that guides our analysis is “[t]he doctrine of in pari materia ... [which] requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Larimore v. State, 2 So.3d 101, 106 (Fla. 2008) (quoting Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla. 2005)). In applying this rule, courts attempt to harmonize potentially conflicting statutes, if possible. Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla. 1996)).

In 1999, the Florida Legislature enacted the 10-20-Life statute. Section 775.087(2)(a)3,, relevant here, provides for a twenty-five-year mandatory minimum: ,

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of .the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall he sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

(Emphasis added). If a defendant falls within the purview of this statute, the trial court must impose a mandatory minimum sentence of twenty-five years under section 775.087(2)(a)3. Mendenhall v. State, 48 So.3d 740, 742 (Fla. 2010).

At the same time, the United States Supreme Court’s jurisprudence regarding juvenile sentencing informs us that, as a matter of constitutional law, “children are constitutionally different from adults for purposes of sentencing,” and these differences are not “crime-specific.” Miller v. Alabama, 567 U.S. 460, 471, 473, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); see Graham, 560 U.S. at 68, 130 S.Ct. 2011; Roper v. Simmons, 543 U.S. 551, 572-73, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In recognition of this difference and in response to the United States Supreme Court’s. decisions, the Florida Legislature passed chapter 2014-220 in 2014. See Horsley, 160 So.3d at 394. The preamble to this chapter reflects that section 775.082 was amended, and sections 921.1401 and 921.1402 were created, to change the “criminal penalties applicable to ... juvenile offender[s] for certain serious felonies” and establish “sentence review proceedings to be conducted after ... specified period[s] of time ... [for] certain offenses” committed by offenders under the age of eighteen. The sentencing scheme established in chapter 2014-220 provides, in relevant part, that juveniles convicted of nonhomicide offenses and sentenced to a term of imprisonment of more than twenty years are entitled to a review of their sentences- after twenty years. §§ 775.082(3)(c), 921.1402(2)(d), Fla. Stat. (2014). In reviewing a nonhomicide juvenile’s sentence at twenty years, the sentencing court must determine whether a sentence modification is warranted after reviewing, among other things, the juvenile offender’s youth and attendant charac teristics at the time of the offense, whether the juvenile offender demonstrates maturity and rehabilitation, and whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing. Id. § 921.1402(6).

As the Florida Supreme Court has stated:

It is a well settled rule of statutory construction ... "that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation “the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.”

McDonald v. State, 957 So.2d 605, 610 (Fla. 2007) (quoting Adams v. Culver, 111 So.2d 665, 667 (Fla. 1959)). And, a more recently enacted statute will control over older statutes as “[t]he more recently enacted . provision may be viewed as the clearest and most recent expression of legislative intent.” Palm Beach Cty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla. 2000); see also Fla. Virtual Sch. v. K12, Inc., 148 So.3d 97, 102 (Fla. 2014). These principles thus require that if there is a conflict, sections 775.082 and 921.1402, which are more recent and specifically address the criminal penalties and sentence review procedures applicable to juveniles convicted of certain serious offenses, would prevail over section 775.087(2)(a), which is older and is a general sentencing statute covering the mandatory minimum for all offenders who, in the course of certain felonies, discharge a firearm and, as a result of the discharge, cause death or great bodily harm.

We believe these statutes can be harmonized because the juvenile sentencing statutes contemplate the modification of any sentence after the mandated judicial review. For example, under section 775.082(l)(b)l., a sentencing court is required to impose a minimum sentence of forty years to life imprisonment with a twenty-five-year judicial review (as long as the juvenile was not previously convicted of a separate criminal offense) when sentencing a juvenile convicted of a capital offense with an actual intent to kill. The forty-year minimum sentence notwithstanding, if the court, determines at a sentence review hearing twenty-five years later that the juvenile offender has been rehabilitated and is reasonably believed to be fit to reenter society, the court is authorized to modify the sentence by releasing the juvenile based on maturity and rehabilitation but must impose a term of probation of at least five years. § 921.1402(7), Fla. Stat. (2014). This is still true even though section 944.275(4)(f), Florida Statutes (2014), which mandates prisoners to serve at least eighty-five percent of the sentence imposed, would require the juvenile offender to serve a minimum of thirty-four years. Nonetheless, the juvenile offender would be entitled to a judicial review and possible release in twenty-five years.

Reading the juvenile sentencing statutes and the 10-20-Life statute in pari materia, the following sentencing scheme emerges for nonhomicide juvenile offenders. Under section 775.082(3), the court must provide a nonhomicide juvenile offender, who is convicted of certain serious offenses, an individualized sentencing hearing. If the nonhomicide juvenile offender is sentenced to more than twenty years, the court must provide a judicial review after twenty years, pursuant to section 921.1402(2)(d), to afford him or her a meaningful opportunity to obtain early release. However, if the nonhomicide juvenile offender, in the course of committing certain enumerated felonies, discharged a firearm and as the result of the discharge, inflicted death or great bodily harm, the juvenile must be sentenced to a twenty-five-year mandatory minimum. § 775.087(2), Fla. Stat. (2012). Nonetheless, he or she would still be entitled to a twenty-year statutory review of his or her sentence under section 921.1402(2)(d) with the possibility of early release. See generally Gridine v. State, 175 So.3d 672, 675 (Fla. 2015) (reversing juvenile nonhomicide offender’s aggregate seventy-year sentence with twenty-five-year mandatory minimum because it failed to provide defendant with judicial review, and thereby, meaningful opportunity for future release). At that judicial review, after considering the enumerated factors of section 921.1402(6) along with any other factor it deems appropriate to review the juvenile’s sentence, the sentencing court is authorized to modify the sentence and impose a term of probation of at least five years if the court determines modification is warranted. § 921.1402(7), Fla. Stat. (2014).

A twenty-five-year mandatory minimum sentence does not implicate the factors deemed unacceptable when those penalties are imposed on juveniles, namely, the futility of rehabilitation and the permanent deprivation of all hope to become a productive member of society, both of which occur when the court is prevented from taking a second look at the incarcerated offender’s demonstrated growth and maturity. Rather, irrespective of the. twenty-five-year mandatory minimum, a juvenile offender will be able to work toward his rehabilitation and look forward to a judicial review after twenty years, ‘ with an opportunity for release at a relatively young age. Accordingly, we hold that the mandatory twenty-five-year minimum sentence at issue in this case does not constitute cruel and unusual punishment when applied to a juvenile offender as long as he or she gets the mandated judicial review.

We affirm Montgomery’s convictions without further discussion, but reverse his sentences and remand for resentencing for the attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm convictions in conformance with chapter 2014-220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

AFFIRMED in part; REVERSED 'in part; and REMANDED.

TORPY, J., concurs.

EIGNAUGLE, J., concurs in result only, with opinion.

EISNAUGLE, J.,

concurring in result only, with opinion.

While I commend the diligent work of the majority here, I concur solely because I am bound by Burrows v. State, 219 So.3d 910 (Fla. 5th DCA 2017), where this court reversed a twenty-fíve-yeár sentence of a nonhomicide offender citing to Kelsey v. State, 206 So.3d 5, 8 (Fla. 2016). In this case, Appellant was sentenced to thirty-years before the Legislature adopted chapter 2014-220, Laws of Florida. Therefore, before this court can apply the remedy set forth in chapter 2014-220, we must first determine that Appellant’s thirty-year sentence violates the Eighth Amendment. See Henry v. State, 175 So.3d 675, 679 (Fla. 2015) (“Because we- have determined that Henry’s sentence is unconstitutional under Graham, we conclude that Henry, should be resentenced in light- of the new juvenile sentencing legislation .... ”). Other than Burrows, the cases cited by the majority do not hold that Appellant’s thirty-year sentence violates the Eighth Amendment. Therefore, were it not for Burrows, I would affirm Appellant’s sentence, and would not reach the interplay between sections 921.1402 and 775.087, Florida Statutes (2014).

The majority seems to rely on language from Henry to support its conclusion that the Constitution requires review of a thirty-year sentence, but Henry does no such thing. In Henry, the supreme court held the. juvenile offender’s ninety-year term-of-years sentence was unconstitutional because the offender would not have a “meaningful opportunity for release.” 175 So.3d at 676. In so doing, Henry reasoned that ‘The Graham, Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of ‘life in prison.’ ” Id. at 680. Thus, Henry considered the constitutionality of a de facto life sentence, and plainly does not requjre this court to find that a thirty-year sentence is unconstitutional.

The same, is true for Horsley and Peterson. . Horsley did no more than announce that chapter 2014-220 would serve as the remedy for all juvenile sentences that violate Graham, even when the offense was committed before the Legislature adopted chapter 2014-220. Horsley, 160 So.3d at 405. I concede that Appellant would be entitled to the remedy provided in chapter 2014-220 if his sentence were unconstitutional. Thus, Horsley’s, holding begs the question presented and is of no consequence here.

In Peterson, this court concluded that a fifty-seven-year sentence without a review mechanism violated Graham, even though it did not amount to a “de facto life sentence.” Peterson, 193 So.3d at 1038. Again, however, Peterson does not require the majority’s holding today that a thirty-year sentence is also unconstitutional. Just because Florida’s courts have concluded that a sentence need not amount to “de facto life” to violate Graham, it does not follow that all juvenile sentences require a review mechanism no matter their length. Therefore, Peterson’s holding concerning a fifty-seven-year sentence is not binding in this case, and I would not extend its reasoning to Appellant’s thirty-year sentence.

Despite the majority’s background discussion of Henry, Horsley, and Peterson, its opinion is really built upon a single sentence in Kelsey. Specifically, today’s decision, and the decision in Burrows, centers on Kelsey’s statement “that all juvenile offenders whose sentences meet the standard defined by the Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled to judicial review,” Kelsey, 206 So.3d at 8. To properly understand that single sentence, however, it cannot be read in isolation and must be considered in the context of the entire opinion.

In Kelsey, the supreme court only considered whether a juvenile- offender, who had already been resentenced once because his original life sentences violated Graham, was entitled to a second resen-tencing and retroactive application of chapter 2014-220’s review mechanism. Kelsey, 206 So.3d at 6. Both the Kelsey court’s holding and reasoning illustrate its narrow application.. Indeed, in that case the court concluded that “[i]t would be antithetical to the precept of Graham and chapter 2014-220, Laws of Florida, to interpret them so narrowly ;as to exclude a juvenile offender who happens to have been resentenced before this Court issued Henry.” Id. at 10. The Kelsey opinion also observed the defendant in that case “rep-resentted] a narrow class of juvenile offenders, those resentenced ■ from life to term-of-years sentences after Graham, for crimes committed before chapter 2014-220’s ... effective date.” Id, at 10. If that were not enough, our supreme court again recognized Kelsey’s narrow application in Johnson v. State, when it explained that Kelsey’s holding merely applied “the reasoning in Henry to juveniles whose life sentences had been vacated pursuant to Graham, but who had not been resen-tenced under the new juvenile sentencing guidelines.” 216 So.3d 1237, 1239 (Fla. 2017). In sum, Kelsey did not hold that all juvenile sentences longer than twenty years are unconstitutional unless they include chapter 2014-220’s review mechanism, nor does Kelsey have any bearing on whether Appellant’s thirty-year sentence in this case is unconstitutional.

Nevertheless, although I believe it was wrongly decided, I am bound by Burrows, and am now compelled to consider the remedy to which Appellant is entitled after demonstrating a violation of Graham. And although I cannot join all of the majority’s reasoning, I agree with the majority’s ultimate reading of sections 921.1402 and 775.087, which gives meaning to both statutes. That said, if the Legislature disagrees with our interpretation of . these statutes, I believe it has every constitutional right to revise the statutes to clarify its intent.

      . On appeal, without explanation, the State reverses course and broadly argues that Montgomery's sentence does not violate the Eighth Amendment and that he is not entitled to be sentenced under the provisions of Chapter 2014-220.

      . In denying Montgomery's rule 3.800(b)(2) motions, the trial court did not rely on our decision in Peterson, and instead relied on Abrakata v. State, 168 So.3d 251, 252 (Fla. 1st DCA 2015), where the First District Court of Appeal concluded that the defendant’s twenty-five-year mandatory minimum sentence did not violate Graham. .In reaching this conclusion, the First District relied, on cases that held that forty-five-year and fifty-year sentences imposed on juvenile offenders were constitutional because they did net amount to a “de facto” life sentence. Abrakata, 168 So.3d at 252 (citing Austin v. State, 127 So.3d 1286 (Fla. 1st DCA 2013); Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011)). The First District's reliance on these cases seems to contradict Henry, 175 So.3d at 680, which held that the Eighth Amendment "will not tolerate [a juvenile offender’s] prison sentence[] that lack[s] a review mechanism," and the later opinion in Kelsey, 206 So.3d 5, which vacated a juvenile offender’s forty-five-year sentence as unconstitutional and remanded for resentencing with the benefit of a judicial review,

      . This Court recently determined that the 2014 juvenile sentencing laws did not affect the ten-year mandatory minimum under section 775.087(2). Young v. State, 219 So.3d 206, 210-11 (Fla. 5th DC.A 2017). That case is distinguishable because no juvenile offender is entitled to a review hearing unless his sentence exceeds fifteen years. See § 921.1402(2)(c), Fla. Stat. (2015).

      . I recognize that the opinion in Burrows indicates that the State conceded error. In my view, the State should not have done so, and we should have rejected the State’s concession. See Powell v. State, 223 So.3d 412 (Fla. 5th DCA 2017) (quoting Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002)). Although the State initially conceded error in this case, it now correctly recognizes that Appellant's sentence does not violate Graham.

      . Horsley v. State, 160 So.3d 393 (Fla. 2015).

      . Peterson v. State, 193 So.3d 1034 (Fla. 5th DCA 2016).


text:
    Rafael M. NAVARRO, Former Husband, Appellant, v. Krista NAVARRO, Former Wife, Appellee.
    CASE NO. 1D17-2858
    District Court of Appeal of Florida, First District.
    Opinion filed November 20, 2017
    Rehearing Denied December 21, 2017
    David Jay Bernstein, Deerfield Beach, for Appellant.
    Krista Navarro, pro se, Appellee.
   PER CURIAM.

DISMISSED. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999).

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


author: PER CURIAM. MAKAR, J.,

text:
    CAPSTONE BANK, Appellant, v. WINSOUTH CREDIT UNION, Richards Motors, Inc., John Eric Richards, Christopher L. Richards and Christy Richards, Appellees.
    CASE NO. 1D16-1484
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017
    Louis E. Harper III, Darryl Steve Tray-lor, Jr., and T. A. Borowski, Jr., Borowski & Traylor, P.A., Pensacola, for Appellant.
    Eric A. Dibert, Matthews & Jones, LLP, Crestview, for Appellee Winsouth Credit Union.
   PER CURIAM.

This case arises from competing monetary claims 'to the respective membership interests of John Eric Richards and Christopher L. Richards in a Florida limited liability company. Capstone Bank challenges the trial court’s determination that WinSouth Credit Union’s charging order has priority over Capstone Bank’s charging order. We reverse because WinSouth’s charging order was entered on an Alabama judgment that was not properly domesticated as to John and Christopher. Win-South obtained a final judgment in Alabama against Richards Motors, Inc., John Eric Richards, and Christopher L. Richards, but it only recorded the certificate of judgment against Richards Motors, Inc. in the public records of Florida. Nowhere on that recorded judgment is it apparent that WinSouth also obtained a judgment against John or Christopher. Since the Alabama court issued three separate certificates of judgments in favor of Win-South, domestication was required as to each. WinSouth’s recording of its judgment against Richards Motors, Inc. did not serve to domesticate its judgment against John and Christopher notwithstanding there is joint and several liability. See § 55.503(1) Fla. Stat. (2015) (requiring that the judgment sought to be domesticated must be recorded in order for it to be enforced as a judgment of the state). Because domestication was not established, it was error to accord relief to WinSouth. Accordingly, we reverse and remand for proceedings consistent with this opinion. ■ •

REVERSED and REMANDED.

WOLF and RAY, JJ., CONCUR. MAKAR, J. CONCURS IN RESULT WITH OPINION.

MAKAR, J.,

concurring in result.

A single two-page judgment against three defendants holding them jointly and severally liable was entered in Alabama. A certified copy of that judgment, along with only one of the certificates of authentication (as to corporate defendant Richards Motors) and a required affidavit, was filed with the clerk in Okaloosa County by Win-South Credit Union, which sought to impose a charging lien. Certificates as to co-defendants Christopher Richards and John Eric Richards were not filed, but statutory notice was filed and provided to all affected persons including all three judgment debtors. Under these circumstances, where no discemable prejudice appears, domestication of the collective judgment as to the three defendants was established.

Even if the Alabama judgments had not been domesticated, however, reversal is warranted as to the trial court’s determination as to priority, the record showing that Capstone Bank applied for and obtained its perfected charging order prior to that of WinSouth.

A charging order is “a remedy that a creditor of a member in an LLC (or of a partner in a limited partnership) can receive from a court that instructs the entity to give the creditor any distributions that would otherwise be paid to the partner or member from the entity.” Alan S. Gassman, After Olmstead: Will a Multiple-member LLC Continue to Have Charging Order Protection?, 84 Fla. B.J. 10, (December 2010); see also Krauth v. First Cont’l Dev-Con, Inc., 351 So.2d 1106, 1108 (Fla. 4th DCA 1977) (“The charging order is a flexible court-supervised substitute for the more disruptive process of execution by the sheriff”).

Between competing judgment creditors, the first to obtain an enforceable charging order has priority. See In re Jaffe, 235 B.R. 490, 492 (Bankr. S.D. Fla. 1999) (“[A]n application for a charging order starts the judicial process for perfecting a lien against a partnership interest. Perfection of the lien, however, does not occur until a court actually enters a charging order.”); but see Krauth, 351 So.2d at 1108 (providing that “where unsecured judgment creditors are concerned, the first to apply to a court of proper jurisdiction for a [ ] charging order has priority”).

Because a charging order “constitutes a lien on the judgment debtor’s limited liability company interest or assignee rights,” Young v. Levy, 140 So.3d 1109, 1111 (Fla. 4th DCA 2014), issuance of an enforceable charging order requires domestication of the foreign judgment. See Michael v. Valley Trucking Co., Inc., 832 So.2d 213, 215 (Fla. 4th DCA 2002) (explaining that, prior to Florida’s adoption of the Florida Enforcement of Foreign Judgments Act (“FEFJA”), “creditors with foreign judgments had to file an action to domesticate the judgment in Florida and then record the judgment as a Florida judgment in order to create a valid lien”).

A charging order issued by a domestic court without foreign judgment domestication would not be perfected upon-the issuance of the charging order. See, e.g., McClure v. JP Morgan Chase Bank NA, 395 P.3d 1123 (Colo. App. 2015) (determining that a domesticated judgment, although later in time, had priority over a first-in-time judgment that had not been domesticated). As a result, we .must review the timing of the parties’ domestication and charging order issuance to determine priority.

Here, Capstone Bank filed an action to domesticate its foreign judgment on May 22, 2015 and filed a motion for á charging order on August 11, 2015. Both domestication of the foreign judgment and,issuance of the charging order were granted on September 22, 2015. WinSouth obtained domestication of its foreign judgment in Florida on July 22, 2015, filed a motion for a charging order on August 24, 2015, and obtained á charging order on October 6, 2015. As such,- Capstone Bank" obtained domestication of the foreign judgment on the same, day it was issued a charging order (September 22, 2015), which is permissible. See Lefkowitz v. Quality Labor Mgmt., LLC, 159 So.3d 147, 148 (Fla. 5th DCA 2014) (illustrating, the trial court’s entering of a final judgment and charging order on the same day is allowed). ,Bécause Capstone Bank applied for and obtained a perfected charging order prior to Win-South, Capstone Bank has priority; that WinSouth domesticated its judgment before Capstone Bank does not control.

      . The FEFJA was enacted to expedite the domestication process. Pratt v. Equity Bank, N.A., 124 So.3d 313, 315-16 (Fla. 5th DCA 2013). But the FEFJA did not eliminate the ability to file an action to domesticate a judgment. See id at 316 (quoting § 55.502(2), Fla. Stat. (2013)) (stating that the FEFJA procedure does not "impair the right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under [the FEFJA]").

      , Although a foreign jurisdiction can enter a charging order on a domestic LLC, see Vision Mktg. Res., Inc. v. McMillin Group, LLC, No. 10-2252-KHV, 2015 WL 4390071, at *1, n.11 (D. Kan. July 15, 2015) (finding that "[t]he Court need not have jurisdiction over the LLC entity'itself in order to issue a charging order, when it has jurisdiction over the LLC member because the LLC has ho right or direct interest affected by the charging order”) and Wells Fargo Bank, N.A. v. Barber, 85 F.Supp.3d 1308, 1315 (M.D. Fla. 2015) (stating that "a membership interest in a limited liability company is intangible personal property, which ‘accompanies the person of the owner’ ”), domestication would still be required in order for the charging order to be deemed enforceable. See Carter G. Bishop, LLC Charging Orders: A Jurisdictional & Governing Law Quagmire, 12 No. 3 Busent 14, 21, 46-47 (May/June 2010); Cadle Co. v. Ginsburg, 31 Conn. L. Rptr. 597, 2002 WL 725500 (Conn. Super. March 28, 2012).


text:
    MARTINIQUE CONDOMINIUMS, INC., Petitioner, v. Michael P. SHORT, Kathy M. Short and PKC Roofing, Inc. d/b/a Wayne’s Roofing & Sheet Metal, Respondents.
    Case No. 5D17-1546
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Rehearing Denied December 19, 2017

      Derek J. Angelí, of O’Connor & O’Con-nor, LLC, Winter Park, for Petitioner.
    David A. Monaco and John N. Bogda-noff, of The Carlyle Appellate Law Firm, Orlando,- for Respondents, Michael P. Short and Kathy M. Short. .
    No Appearance for Respondent, PKC Roofing, Inc. d/b/a- Wayne’s Roofing & Sheet Metal.
   PER CURIAM.

Martinique Condominiums, Inc. (“Martinique”) seeks certiorari review of an order granting Michael and Kathy Short’s (“Shorts”) motion to sever Martinique’s third-party action against PKC Roofing, Inc., d/b/a Wayne’s Roofing & Sheet Metal (“Wayne’s Roofing”) from the main action. Concluding that the Shorts’ claim for damages as alleged in their complaint filed against Martinique and Martinique’s third-party claim against Wayne’s Roofing are inextricably interwoven, we grant the petition and quash the order.

The Shorts own a condominium unit in a condominium complex'operated and'maintained by Martinique, The Shorts filed suit against Martinique, alleging various- causes of action that, at their core, assert that they have sustained damages due to a leak in the roof of the building where their unit is located. The Shorts contend that this leak was proximately caused by Martinique’s breach of its contractual, statutory, or common law duty owed to the Shorts to properly repair and., maintain the roof. Martinique answered the complaint and, as one of its affirmative defenses, alleged that the damages complained of by the Shorts resulted from “actions or inactions of third parties over which [Martinique] has no control, nor any right of control, including Wayne’s Roofing.”

Martinique later filed a third-party action against Wayne’s Roofing, asserting causes of action for common law indemnity and contribution, among others. In its third-party complaint, Martinique alleged that in 2005, it hired Wayne’s Roofing to construct a roof on the subject condominium complex and that over the subsequent years, Wayne’s Roofing had performed regular maintenance and repair work on the roof. Martinique further alleged that Wayne’s Roofing is an independent contractor over which Martinique exercised no direct control or supervision over the means and methods of roof installation, repair, and maintenance and to the extent that Martinique is ultimately found liable for damages to the Shorts, its liability is the result of the actions or inaction of Wayne’s Roofing.

The Shorts filed a motion to sever the third-party action from them main action, arguing that the third-party action was significantly affecting the orderly presentation of their case and was unfairly delaying the resolution of their claims against Martinique. However, at that time, no party had filed a notice requesting that the court set the case for trial nor did there appear to be any record impediment from any party doing so. The trial court entered the unelaborated order now under review granting the motion.

A party seeking certiorari relief “must establish (1) a departure from the essential requirements of law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” Choi v. Auto-Owners Ins. Co., 224 So.3d 882, 883 (Fla. 2d DCA 2017) (quoting Rogan v. Oliver, 110 So.3d 980, 982 (Fla. 2d DCA 2013)). Although Florida Rule .of Civil Procedure 1.270(b) provides courts with the discretion to sever claims “in furtherance of convenience or to avoid prejudice,” certiorari is an appro-' priate remedy for orders severing claims that involve interrelated factual issues because of the risk of inconsistent verdicts. Minty v. Meister Financialgroup, Inc., 97 So.3d 926, 931 (Fla. 4th DCA 2012) (quoting Kavouras v. Mario City Rest. Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011)).

Here, by allowing the main action to remain severed from the third-party action, there is a clear risk of inconsistent verdicts. The jury in the main action could find that Martinique is liable to the Shorts for damages because Martinique breached its duty owed to the Shorts to repair or maintain the roof, yet, in the third-party action, a second jury, based on similar evidence presented regarding the installation, repair, and maintenance of the roof, may reach an entirely different result and conclude that there was no breach of any duty in the installation, maintenance, or repair of the roof. Under these circumstances, Martinique would have sustained a material injury that cannot be remedied on a postjudgment appeal.

Accordingly, because Martinique has demonstrated that the trial court departed from the essential requirements of the law by severing claims that involve inextricably related factual issues, see Choi, 224 So.3d at 884, we grant the petition for certiorari and quash the order.

PETITION GRANTED; ORDER QUASHED.

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.


author: ORFINGER, J.

text:
    BANK OF NEW YORK MELLON f/k/a Bank of New York, as Successor in Interest to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, etc., Appellant, v. Daniel STALLBAUM, Appellee.
    Case No. 5D16-3718
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    J Kirby McDonough and Michael J. Labbee, of Quarles & Brady LLP, Tampa, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee.
   ORFINGER, J.

Bank of New York Mellon f/k/a Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, Etc. (“Bank”) appeals the trial court’s summary final judgment dismissing Bank’s foreclosure complaint based on the statute of limitations. We reverse.

In this case, the complaint, filed on March 3, 2015, alleged that the “Note and Mortgage are in default in that the payment due March 1, 2010 and all subsequent payments have not been made.” The court granted summary judgment in favor of the borrower, Daniel Stallbaum, and dismissed the complaint, ruling that the action was time-barred because the initial default occurred more than five years before the'foreclosure action was filed. Because the complaint alleged a continuous state of default that included acts of default occurring within the five-year period, the statute of limitations did not bar the complaint. See U.S. Bank N.A. v. Diamond, 228 So.3d 177, 178 (Fla. 5th DCA Sept. 1, 2017) (holding that January 2015 foreclosure complaint, alleging that borrower defaulted on October 2009 payment and that “all subsequent payments had not been made” was not barred by statute of limitations as lender proved that borrower’s “default was continuing because [borrower] failed to make any mortgage payments following the initial default date” up to time complaint was filed); Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 167-69 (Fla. 5th DCA June 30, 2017) (holding that June 2014 foreclosure complaint that alleged borrower defaulted on March 2009 payment and “all subsequent payments due thereafter” was not barred by statute of limitations because it alleged mortgage “was in a continuous state of default, which included defaults within the five-year statute of limitations ... even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint”); cf. Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 958-59 (Fla. 5th DCA 2015) (holding that complaint was barred by statute of limitations even though it alleged continuous state of default because parties stipulated before trial that complaint was based solely on initial default payment that occurred outside five-year period).

Accordingly, we reverse the entry of summary final judgment and remand for further proceedings.

'REVERSED and REMANDED.

SAWAYA and WALLIS, JJ., concur.

      . Klebanoff and Diamond had not been issued when the trial judge ruled in this matter,

      . We reject Stallbaum’s alternate argument that we should affirm based on Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), because the initial default alleged in the present case was the same default al- . leged in an earlier foreclosure action between the parties that was dismissed without prejudice. We rejected this argument based on similar facts in Diamond, 228 So.3d at 178, Accord Bank of N.Y. Mellon Corp. v. Anton, 230 So.3d 502 (Fla. 3d DCA Aug. 30, 2017) (holding that complaint alleging default based on initial default "and all subsequent payments” satisfied pleading requirement in Bar-tram). Unlike Bartram, the earlier action here was not adjudicated on the merits.


text:
    Craig B. KERRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1006
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017

      James S. Purdy, Public Defender, and Sean K- Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General,' Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Craig Kerry appeals his convictions for attempted manslaughter, robbery, and aggravated battery; each charge included the discharge of a firearm causing great bodily harm ánd the use of a mask. Kerry raises five issues on appeal, only two of which merit discussion. Kerry submits that he is entitled to a new trial because the State introduced evidence of collateral crimes and failed to redact Kerry’s use of racial epithets in a recorded interview that was played for the jury. Neither of the issues was preserved for appeal. Because neither issue was preserved, Kerry must establish fundamental error to be entitled to relief. “To be fundamental, an error must ‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Farina v. State, 937 So.2d 612, 629 (Fla. 2006) (quoting Harrell v. State, 894 So.2d 935, 941 (Fla. 2005)). The error must go to “the foundation of the case.” Id.

After his arrest for a violent robbery at a Gators Dockside, Kerry claimed during interrogation to have an alibi. Kerry contended that he had smoked a “blunt” with his “lady” at his mother’s house and later gambled with friends at a hotel. However, when confronted with a video showing him exiting the vehicle that was observed at the robbery scene, Kerry changed his story. He then claimed that he loaned the vehicle to two other individuals who committed the robbery. He alleged that they had him park the car so it appeared that he was driving. During the interrogation, Kerry used racial epithets when speaking of those individuals. He also used racial slurs while alone in the room.

Kerry himself injected the collateral crimes evidence into the case in an effort to establish an alibi. He told the officers that he was not involved in the robbery because he was smoking a “blunt” with his “lady” and gambling with- his friends. Thus, the admission of this evidence did not amount to fundamental error. •

Although Kerry himself used the racial epithets, the introduction of these statements is more problematic. It would have been difficult but not impossible to redact the comments Kerry made with the officers in the room. Redaction of the comments Kerry made while alone in the interrogation room would have been easier. Unless such language is relevant, it should be excluded. We caution the State that in our view, under most circumstances, the use of racial epithets should be redacted. See, e.g., McCallister v. State, 779 So.2d 615, 616 (Fla. 5th DCA 2001). However, under the facts and circumstances of this case, we do not find that the State’s failure to redact those statements from Kerry’s interview constituted fundamental error.

AFFIRMED.

COHEN, C.J., SAWAYA and EDWARDS, JJ., concur.

      . The vehicle observed at the scene of the robbery belonged to Kerry’s mother.

      . The prosecutor made some efforts to redact Kerry’s statement but the record on appeal does not reflect the nature or extent of those efforts.


text:
    Alex PETERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4341
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The sole contention raised by Appellant in this appeal is that the present prison sentences imposed upon him by the trial court after Appellant violated probation in his three cases below are unlawful. Appellant argues that when he was initially sentenced, he received “true” split sentences, thus limiting the trial court’s sentencing discretion upon Appellant’s later probation violation. Having reviewed the transcripts from the original sentencing hearings, we conclude that Appellant did not initially receive “true” split sentences, and therefore, we affirm his present sentences.

“A ‘true’ split sentence consists of a total period of confinement with [all or] part of that confinement suspended. Generally, the defendant is placed on probation for the suspended portion of the confinement.” Moore v. Stephens, 804 So.2d 575, 577 (Fla. 5th DCA 2002) (citing Poore v. State, 531 So.2d 161, 164 (Fla. 1988)).

“[W]hen a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.”

Harris v. State, 218 So.3d 457, 458 (Fla. 5th DCA 2017) (quoting Boone v. State, 967 So.2d 999, 1001 (Fla. 5th DCA 2007)).

The State disagrees that when first sentenced Appellant received a “true” split sentence. Rather, the State argues that Appellant initially received a “probationary” split sentence, which involves a period of incarceration followed by a period of probation. See Moore, 804 So.2d at 577. A defendant violating the probation of a “probationary” split sentence is thereafter subject to being sentenced by the trial court to the maximum allowable period of incarceration for the crime committed. Howells v. State, 16 So.3d 852, 853 (Fla. 5th DCA 2009) (citing Poore, 531 So.2d at 164).

The written sentencing documents in this case aré unclear as to whether Appellant first received a “true” split sentence or a “probationary” split sentence. However, our review of the transcripts filed of record from these sentencing hearings clearly show that Appellant did not receive “true” split sentences when first sentenced because the trial court explicitly provided that Appellant would servé a period of incarceration followéd by a term of probation and did not suspend any portion of Appellant’s incarceration. Under these circumstances, “[w]here a conflict exists between the oral pronouncement of sen-, tence and [the] written sentencing documents, the oral pronouncement controls.” Chrystie v. State, 95 So.3d 1027, 1028 (Fla. 5th DCA 2012) (citing Williams v. State, 957 So.2d 600, 603 (Fla. 2007)). Because the trial' court’s oral pronouncements of sentences concltisively show that Appellant received “probationary”' split sentences, his present prison sentences imposed after violating probation, which are all within the allowable statutory máximums, are lawful.

AFFIRMED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.


text:
    David Lynn RHODES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3398
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 5, 2017
    James ,S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant..
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Rivero v. State, 35 So.3d 183, 184-86 (Fla. 3d DCA 2010); Sorey v. State, 419 So.2d 810, 813 (Fla. 3d DCA 1982).

WALLIS, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Shavogue Shantrice Janell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2173
    District Court of Appeal of Florida, First District.
    Opinion filed December 6, 2017
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant. . ,

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm in this Anders appeal, but remand for the trial court to correct the judgment to reflect that the charge of false verification of ownership on a pawnbroker transaction form, section 539.001(8)(b)8.a., Florida Statutes, is a third-degree felony, not a second-degree felony. See King v. State, 201 So.3d 206 (Fla. 1st DCA 2016) (affirming in an Anders appeal but remanding for correction of scrivener’s errors in the written judgment).

AFFIRMED and REMANDED with instructions.

WOLF, ROWE, and WINSOR, JJ., CONCUR.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Lawrence DENNIS, Former Husband, Appellant/Cross-Appellee, v. Pamela DENNIS, Former Wife, Appellee/Cross-Appellant.
    CASE NOS. 1D16-1614 & 1D16-3350
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017

      Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellant/Cross-Appellee.
    Zachary M. Alfant of Fletcher & Phillips, Jacksonville, for Appellee/Cross-Ap-pellant.
   PER CURIAM.

Former Husband appeals the trial court’s order enforcing the Final Judgment of Divorce, and Former Wife cross-appeals the trial court’s denial of her request for attorney’s fees. For the reasons that follow, we reverse the trial court’s order denying Former Wife’s request for fees and remand for further consideration.

Former wife sought attorney’s fees in conjunction with her contempt motion seeking the payment of court-ordered alimony. Because he did not “think the awar-dance of attorney’s fees [was] appropriate,” the trial judge denied her request. Former Wife’s counsel inquired about the court’s basis for the denial, but again, the court denied fees without explanation. Former Wife filed a motion for rehearing, arguing that the trial court abused its discretion in denying fees due to the disparity in income between the parties, which was denied with no explanation.

A trial court’s order granting or denying a request for attorney’s fees is reviewed for abuse of discretion. Broemer v. Broemer, 109 So.3d 284, 290 (Fla. 1st DCA 2013). According to section 61.16, Florida Statutes, “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount of attorney’s fees .... ” The statute’s purpose is “to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997). “The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay.” Broemer, 109 So.3d at 290.

The trial court’s only finding related to attorney’s fees was that the court “did not find Former Husband to be in contempt, and declines to award attorney’s fees and costs.” Because there was no hearing on the issue of fees, and because the trial court made no findings regarding the financial situation of the parties, we are unable to evaluate whether denial of Former Wife’s request for fees was an abuse of discretion. Accordingly, the trial court’s order denying Former Wife’s request for fees is REVERSED and the case is REMANDED to make specific findings on Former Wife’s need and Former Husband’s ability to pay. See Fulmer v. Fulmer, 961 So.2d 1081, 1082 (Fla. 1st DCA 2007) (reversing the trial court’s order denying request for attorney’s fees and remanding case for trial court to make findings in support of its decision because “the absence of findings of fact regarding the parties’ needs and ability to pay renders a trial court’s decision regarding attorneys’ fees impossible to review”).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

ROBERTS, MAKAR, and JAY, JJ., CONCUR.

      . Former Husband raises multiple arguments on how the trial court erred in interpreting the Final Judgment. We are unpersuaded by these arguments, reject each without comment, and affirm the trial court's interpretation of the Final Judgment.


text:
    Ronald D. PERRYMAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4336
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Ronald D. Perryman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely filed. See Fla. R. App. P. 9.141(d)(5).

■ WETHERELL, RAY, and WINSOR, JJ., CONCUR.


author: WOLF, J.

text:
    Marcus Edward NALL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0770
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WOLF, J.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no reversible error. Therefore, we AFFIRM appellant’s judgment and sentence. However, we REMAND for the trial court to correct a scrivener’s error in the order revoking community control; the order indicates appellant admitted to violating his community control when, in fact, appellant was found to have violated his community control after an evidentiary hearing. See Nickolas v. State, 66 So.3d 1077, 1077 (Fla. 1st DCA 2011).

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


text:
    Nathan Lee GARROW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-242
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017

      James S. Purdy, ■ Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

•'Nathan Garrow (the defendant) appeals his judgment and sentences entered by the trial court after a jury found him guilty of operating a chop shop, conspiracy to commit dealing in stolen property, and four counts of dealing in stolen property.-Finding no merit in the claims of error raised on appeal, we affirm. However, a scrivener’s error appears on the last page of the defendant’s sentencing' documents where the following paragraph appears:

In imposing the above sentence, the court further recommends; CT 1, & 3 YEARS-DOC F/B 2 YEARS COMMUNITY CONTROL-CTS ‘ 2,7,8,13 3 YEARS DOC F/B 2 YEARS COMMUNITY CONTROL FOLLOWED BY 5 YEARS OF PROBATION.

The paragraph should read: “CTS 1 & 4 3 YEARS.... ” Accordingly, we remand for correction of the defendant’s sentencing documents.

AFFIRMED; REMANDED TO CORRECT SCRIVENER’S ERROR.

SAWAYA, PALMER and'TORPY, JJ., concur.


text:
    James Anthony ECKFORD, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3825
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 11, 2017
    Robert Wesley, Public Defender, and Robert Adams, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

James Anthony Eckford, Jr. (Petitioner) petitions this Court for a writ of' habeas corpus arguing that he is being illegally detained without the benefit of a pretrial bond hearing. As explained below, we agree and grant the petition.

Petitioner was charged by information with attempted robbery and arrested. His defense counsel filed a motion suggesting Petitioner was not competent to proceed and requested a hearing. Petitioner was evaluated by Dr. Eric Mings, who' opined that Petitioner was not competent. Thereafter, the trial court ordered a second evaluation by Dr. Daniel P. Tressier. On March 28, 2016, before that second evaluation was perforhied, Petitioner posted bond, and the evaluation was rescheduled. The second evaluation was then repeatédly rescheduled; until a competency hearing was held- on September 15, 2016. At that hearing defense counsel confirmed that'the evaluation had taken place, but the doctor required more records to prepare a written report.

The written report was submitted to the court on October 14, 2016, but the doctor still required Petitioner’s school records, prompting the court to direct defense counsel to provide those records and setting a competency hearing for December 1, 2016.- Petitioner failed to appear at that competency hearing, and the State requested that a third-evaluation be ordered due to concerns that the first evaluation conducted by the defense had become stale. Thus, the court ordered the third evaluation, issued a capias warrant for Petitioner due to his failure , to appear, revoked Petitioner’s bond, and set a. status hearing for February. 16, 2017.

By the time of that status hearing, a new judge was assigned to the case, and he vacated the previous order, for a third evaluation due to the active warrant. The warrant was finally executed on November 1, 2017, while Petitioner was being held in St. Lucie County. Jail. Petitioner was brought before the court on November 8, 2017, his bond was revoked, and he was held without bond. Petitioner’s counsel filed a motion to set bond at $5,000 on November 21,2017.

A bond hearing was set for November 29,- 2017, and while the trial court recognized Petitioner could still be entitled to bond despite his prior failure to appear, it declined to hear the motion. The trial court seemed concerned that the undecided question of Petitioner’s competency might frustrate the normal bond process, and in an abundance of caution postponed the issue until after a competency - hearing.

As a result, Petitioner seeks a writ of habeas corpus, challenging his pre-trial detention .without bond. The State correctly concedes that Petitioner is entitled to a bond hearing, notwithstanding the suggestion of incompetency. Accordingly, we grant the petition, and direct the lower court to hold a proper bond hearing, unless it determines that Petitioner will not submit to the next scheduled evaluation. Fla. R. Crim. P. 3.210(b)(3); Rosa v. State, 21 So.3d 115, 116 (Fla. 5th DCA 2009).

PETITION GRANTED.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    Clark CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2371
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 12, 2017
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 775.084(4)(h), Fla. Stat. (2015); Alexander v. State, 88 So.3d 417 (Fla. 4th DCA 2012); King v. State, 557 So.2d 899 (Fla. 5th DCA 1990).

PALMER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Andrew A. ROMERO, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and FedEx Ground Package System, Inc., Appellees.
    CASE NO. 1D17-2160
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    Andrew A. Romero, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Cristina A. Velez, Appellate Counsel, Tallahassee for Appellee Reemployment Assistance Appeals Commission.
   PER CURIAM.

Andrew A. Romero appeals from a final order of the Reemployment Assistance Appeals Commission that disqualified him from unemployment benefits for having made fraudulent representations for the purpose of obtaining benefits, established the amount of benefits he was overpaid, and assessed a fifteen percent fraud penalty to the amount of overpayment. Despite Romero’s arguments to the contrary, there is competent, substantial evidence in the record demonstrating that Romero fraudulently collected several months of benefits to which he was not entitled. However, as the Commission properly concedes, the record does not establish that Romero made fraudulent representations prior to the benefit week ending in June 20, 2015, even though he was overpaid for that time period because he had unreported earnings that rendered him eligible for only partial benefits. See § 443,036(44)(a), Fla. Stat. (2017) (one is “partially unemployed” in any week he or she works less than full time and earns less than his or-her weekly benefit amount); § 443.111(4)(b), Fla. Stat. (2017) (describing calculation for determining partial benefit payable to an individual who is partially unemployed in any week). Accordingly, we vacate the Commission’s order to the extent that it imposed the fifteen percent fraud penalty for the weeks prior to the benefit week ending June 20, 2015, and remand for the adjustment of Romero’s overpayment for those weeks based on his entitlement to partial benefits. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

WETHERELL, RAY, and WINOKUR, JJ., CONCUR.


text:
    Bernetta ASHFORD-COOPER, Appellant, v. Dwell Lakey RUFF aka Dwell L. Ruff, Appellee.
    CASE NO. 1D17-35
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    Joshua D. Zelman of Zelman Law, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant seeks review of the stalking injunction entered against her at the request of her husband’s girlfriend, Appel-lee. We agree with Appellant that the evidence was insufficient to support the injunction because, among other things, there was no evidence that the repeated calls and texts Appellant made to Appellee to try to get in touch with her husband caused Appellee—or would cause a reasonable person in Appellee’s position—substantial emotional distress. See § 784.048(1)(a), (2), Fla. Stat. (2016); Leach v. Kersey, 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (reversing stalking injunction against wife who contacted husband’s mistress because “the evidence does not show that these contacts would cause a reasonable person in [the mistressj’s circumstances to suffer substantial emotional distress” since “[a] reasonable woman who had an eighteen-month affair with another woman’s husband might well expect to hear the scorn of an angry wife.”) (internal citation omitted). Accordingly, we reverse the injunction.

REVERSED.

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

      . Although the injunction has expired on its own terms, ''[t]his case is not moot ... because collateral legal consequences flowing from such an injunction outlast the injunction itself.” Murphy v. Reynolds, 55 So.3d 716, 716 (Fla. 1st DCA 2011).


text:
    Jean LOUVERTURE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3187
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    Jean Louverture, Doral, pro se.

      Pamela Jo Bondi, Attorney General Tallahassee, and-, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 8, 2017 order denying Petitioner’s rule 3,850(m)’ petition,.filed in Case No. 2017-CA-3752 (re: 2010-CF-9460) in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D),

PETITION GRANTED.

SAWAYA, BERGER and EDWARDS, JJ., concur;


text:
    Stonie Shane NORRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2447
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    Stonie Shane Norris, Monticéllo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee,
   PER CURIAM.

Appellant appeals the lower court’s denial of his motion requesting an order for trial counsel to provide him deposition transcripts. We treat Appellant’s motion as a petition for mandamus requesting the trial court to order his counsel to turn over deposition transcripts that appear to have been paid for by public funds. We remand for further proceedings as the petition appears to be facially sufficient and we cannot determine from the court’s order why the petition was denied.

In his petition, Appellant notes that because he was indigent, counsel was appointed to represent him at trial. Appointed counsel was permitted to withdraw following trial and appeal, and Appellant now proceeds pro se, Appellant’s petition asserts that for the purpose of preparing a rule 3.850 post-conviction motion or petition for habeas corpus, he needs the deposition transcripts of nine named deponents. If. the deposition transcripts exist and were prepared at public expense on behalf of indigent Appellant, they should be provided to him without charge. Brown v. State, 93 So.3d 1194, 1196 (Fla. 4th DCA 2012) (citing Rosado v. State, 1 So.3d 1147, 1148 (Fla. 4th DCA 2009)). “Because a public defender or court-appointed lawyer is an ‘official,’ mandamus is an appropriate remedy to compel such an official to provide a defendant with copies of legal documents , prepared at public; expense.” Id. (citing Pearce v. Sheffey, 647 So.2d 333, 333 (Fla. 2d DCA 1994)).

We find, and the State concedes, that Appellant’s petition for writ of mandamus is facially sufficient. Because the trial court’s order is a concise denial without explanation, we cannot determine whether denial of Appellant’s petition was appropriate. Therefore, we remand the matter for further proceedings with instructions to the trial court to grant the petition if appropriate or to issue a written order explaining why Appellant’s petition is denied, and to conduct such hearings, if any, as. may be necessary.

REMANDED WITH INSTRUCTIONS.

COHEN, C.J., and TORPY and EDWARDS, JJ., concur.'

      . Appellant requests transcripts of the following witness depositions: Sheryl Daley, Alisha Kuleski, and James Wattenbarger for depositions on June 13, 2014; Marcus Phillips and Melinda Smith for depositions on July 29, 2014; Melissa Justice for deposition on October 10, 2014; William Johnson, Susie Gainey, and Maxie Gainey for depositions on October 14, 2014.

      . An order in the underlying case, dated September 24, 2015, which was filed on September 28, 2015, authorizes the Justice Administrative Commission to pay Southern Court Reporters for certain deposition transcripts, including those sought by Appéllant.


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Robert Tennyson HARRIS, Appellee.
    Case No. 5D16-4228
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

The State appeals an order granting Robert Harris’ motion to suppress, arguing that the trial court erred in concluding that the investigatory stop at issue was unsupported by reasonable suspicion. This court has jurisdiction. Fla. R. App. P. 9.140(c)(1)(B). Because the undisputed facts establish that the arresting officers had reasonable suspicion to believe that Harris had violated Orange County’s public nudity ordinance, we reverse.

At approximately 4:45 p.m., while sitting in an unmarked police car, Corporal Wasserman observed Harris drive into the parking lot of a restaurant located in unincorporated Orange County. Harris exited the car and urinated into the parking lot. Corporal Wasserman observed Harris’ exposed penis and also observed cars “coming and going” on the street adjacent to the parking lot. Corporal Wasserman then requested that Deputy Chouinard, who was nearby in a marked patrol vehicle, enter the lot and make contact with Harris. As Harris began to walk away from his vehicle, he was commanded to stop by Corporal Wasserman. Deputy Chouinard approached Harris and detected a strong odor of cannabis emanating from Harris’ person. A subsequent search resulted in the discovery of brass knuckles in Harris’ pants pocket. Harris was subsequently charged with unlawfully carrying a concealed weapon by a convicted felon.

At the suppression hearing, Harris argued that the investigatory stop initiated by Corporal Wasserman lacked reasonable suspicion because urinating in a parking lot was not criminal. Although recognizing that Orange County had a public nudity ordinance, Harris argued that the purpose of the ordinance was to curb harmful secondary effects of adult entertainment establishments and was not intended to apply to the instant case. The trial court accepted Harris’ argument, found that the arresting officers lacked reasonable suspicion to support an investigatory stop, and granted Harris’ motion to suppress.

Orange County’s public nudity ordinance provides that subject to certain exceptions not applicable here, “it shall be unlawful for any person to knowingly or intentionally appear nude in a public place ....” Orange County, Fla., Code of Ordinances § 26-26(e) (2016). Displaying or exposing the male genitals was specifically included within the ordinance’s definition of appearing “nude.” Id. § 26—26(d)(2). A “public place” was defined to encompass

any location open to the common and general use, participation or enjoyment of the public where the public is present or likely to be present, or any location where the public is invited and is free to go upon special or implied invitation, or any location where a person may reasonably be expected to be observed by the public. A public place includes, but it is not limited to, a street, sidewalk, ... business or commercial establishment ... [or] restaurant ....

Id. § 26-26(d)(5). A violation of the ordinance was punishable by fine or imprisonment. Id. § 26-26(g); Orange County, Fla., Code of Ordinances § 1—9(c) (2016).

Police may conduct an investigatory stop if reasonable suspicion exists to believe that an individual “has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla. 1993) (citing § 901.151, Fla. Stat. (1991)). An investigatory stop requires “a well-founded, articulable suspicion of criminal activity.” Id. Here, the evidence presented at the suppression hearing re flected that Corporal Wasserman observed Harris exposing his penis in a restaurant parking lot at approximately 4:45 p.m. As a result, the officer had reasonable suspicion to believe that Harris had committed a crime by violating Orange County’s public nudity ordinance. Accordingly, the trial court erred in granting Harris’ motion to suppress.

REVERSED and REMANDED.

BERGER and WALLIS,' JJ, concur.

      . "[T]o a trained and experienced police officer, the smell of cannabis emanating from a person or a vehicle[ ] gives the police officer probable cause to search the person or the vehicle.” State v. Reed, 712 So.2d 458, 460 (Fla. 5th DCA 1998).

      . § 790.23, Fla. Stat. (2016).


text:
    Corey Samuel WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2290
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    Corey Samuel Wright, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Corey Samuel Wright, appeals the trial court’s denial of a rule 3.800(a) motion challenging his designation as a sexual predator. Fla. R. Crim. P. 3.800(a).

Appellant pled to one count of lewd or lascivious battery pursuant to section 800.04(4)(a), Florida Statutes (2016). The trial court sentenced Appellant according to the plea agreement to time served and five years of sex offender probation, and designated him a sexual predator.

A defendant will be designated a sexual predator pursuant to section 775.21(4), Florida Statutes, (1) if he or she was convicted of a capital, life, or first-degree felony violation of several enumerated statutory sections, or (2) if he or she was convicted of any qualifying felony and he or she has previously been convicted of any qualifying, violation listed in section 775.21(4)(a)1.b., Florida Statutes (2016).

Here, Appellant was not convicted of a capital, life, or first-degree felony. He was convicted of a second-degree felony under section 800.04(4)(a), which is a qualifying felony. However, the State properly concedes the record does not conclusively demonstrate that he has a previous qualifying conviction listed in ' section 775.21(4)(a)l.b., Florida Statutes (2016). Therefore, we reverse and remand for the trial court to attach record evidence demonstrating that Appellant qualifies for a sexual predator designation, or in the alternative, to strike the designation.

REVERSED and REMANDED.

SAWAYA, PALMER and EISNAUGLE, JJ., concur.


text:
    Nickesha REID, Appellant, v. Tachita SAUNDERS, Appellee.
    CASE NO. 1D16-4732
    District Court of Appeal of Florida, First District.
    Opinion filed December 19, 2017
    Nickesha Reid, pro se, Appellant.
    Tachita Saunders, pro se, Appellee.
   PER CURIAM.

Appellant, Nickesha Reid, appeals a permanent .injunction for protection against stalking that was. entered against her. Appellant argues, and we agree, that the injunction is not supported by competent, substantial evidence and must be . reversed. See § 784.048(2), Fla. Stat. (2016) (providing that stalking occurs when someone “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person”); Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (noting that incidents of stalking must be proyen by competent, substantial evidence). While Appellee, Tachita Saunders, claimed to have documentation of numerous phone calls, emails, and texts made and sent by Appellant, the record contains no such documentation, and .the hearing transcript provides no indication that Appellee provided any documentation to the trial court. See Murphy v. Reynolds, 55 So.3d 716, 716-17 (Fla. 1st DCA 2011) (noting that the appellee set out to prove cyberstalking as grounds for the injunction by alleging that the appellant sent her an offensive email, hacked into her email accounts, deleted all of her emails, and changed her email signature block to include disparaging remarks, “[b]ut [the ap-pellee] did not introduce evidence that linked [the appellant] to the cyberstalking incidents”). Without knowing what the alleged communications, were,- it was not possible for the trial court to determine whether Appellant engaged in stalking or whether the communications would have created substantial emotional distress under a reasonable person standard. See McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (noting that courts must use a reasonable person standard rather than a subjective standard in determining whether incidents create substantial emotional distress); see also Roach v. Brower, 180 So.3d 1142, 1144 (Fla. 2d DCA 2015) (noting that “without competent, substantial evidence that Ms; Brow-er, the petitioner, suffered substantial emotional distress, the circuit court could not enter an injunction against [the appellant] based upon the stalking statute”).

Accordingly, the injunction is REVERSED. ' '

LEWIS, OSTERHÁUS, and BILBREY, JJ., CONCUR.


text:
    Laurie GLISSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5170
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges her judgment and sentence for attempted first-degree murder and raises three issues.

The State properly concedes that the trial court reversibly erred in denying appellant’s. challenges for cause to three jurors. See Vega v. State, 182 So.3d 848 (Fla. 4th DCA 2016). We, therefore, reverse appellant’s conviction and sentence and remand for a new trial.

Appellant raises two other issues on appeal related to jury instructions. With respect to those issues, we find that error, if any, was not fundamental.

REVERSED and REMANDED.

WOLF, WINOKUR, and JAY, JJ., CONCUR.