author: Ciklin, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR HOME EQUITY ASSET TRUST 2004-6 HOME EQUITY PASS-THROUGH CERTIFICATES, SERIES 2004-6, Appellant, v. Jean KACHIK; Unknown Spouse of Jean Kachik; Bank of America, N.A.; Bank of America Successor by Merger to Barnett Bank of Broward County, N.A.; United States of America; any and all Unknown Parties Claiming by, through, under and against the Herein Named Individual Defendant(s) who are not known to be Dead or Alive, whether said Unknown Parties may Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants; Unknown Tenant #1; Unknown Tenant #2; Unknown Tenant #3; and Unknown Tenant #4, The Names Being Fictitious to Account for Parties In Possession, Appellee.
    No. 4D16-1776
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for appellant.
    Jonathan H. Kline of Jonathan Kline, P.A., Weston, for appellee.
   Ciklin, J.

' U.S. Bank National Association, as Trustee for Home Equity Asset Trust 2004-6 Home Equity Pass Through Certificates, Series 2004-6 (“the bank”), the plaintiff in the foreclosure proceedings below, appeals a final judgment in favor of Jean Kachik (“the homeowner”). Because the bank failed to file the original allonge to the subject note, we affirm.

A copy of the note on which the action was brought and a copy of a paper entitled “Endorsement and Assignment of Note” were attached to the bank’s single-count complaint for foreclosure. The endorsement and assignment stated in pertinent part, “I hereby transfer, endorse and assign to_the within Note and Deed of Trust securing the same, so far as the same pertains to said Note, without recourse.” At trial, the bank moved into evidence the original note but only a copy of the endorsement and assignment. After entertaining memoranda on the effect of the endorsement and assignment, the trial court entered judgment in favor of the homeowner.

On appeal, the bank argues that the endorsement and assignment was merely an assignment for which the original document was not required. The homeowner argues the subject document was an allonge and, as such, the bank was required to file the original. We agree with the homeowner.

“A promissory note is a negotiable instrument.” Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58, 60-61 (Fla. 4th DCA 2012). Where a document is a negotiable instrument, the best evidence rule, as codified, requires the production of the original. § 90.953(1), Fla. Stat. (2016) (“A duplicate is admissible to the same extent as an original, unless ... [t]he document or writing is a negotiable instrument .... ”). “Therefore, a party who seeks to foreclose on a mortgage must produce the original note.” Clarke, 87 So.3d at 61.

This court has explained the concept of an allonge as an addition to a negotiable instrument:

“An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” See Booker v. Sarasota, Inc., 707 So.2d 886, 887 n.1 (Fla. 1st DCA 1998). Although Florida’s Uniform Commercial Code does not specifically mention an allonge, the Code provides that “[f]or the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.” § 673.2041(1), Fla. Stat.

Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 496 n.1 (Fla. 4th DCA 2011) (alteration in original). Isaac also describes the effect of an allonge that does not identify a specific payee:

A promise or order is “payable to bearer” if it: “(a) [sjtates that it is payable to bearer ...; (b) [d]oes not state a payee; or (c) [sjtates that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.” § 673.1091(1), Fla. Stat. “If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.” § 673.2011(2), Fla. Stat.

Id. at 496 (alterations in original).

Since Isaac dictates that an allonge is part of the note, and an original note is required, it follows that an original allonge is required. Partially relying on Isaac, the Second District reached this conclusion in a similar case:

These documents are insufficient to show that U.S. Bank had standing to foreclose. Though the copy of the note and the allonge attached to the complaint indicate that the note was transferred to U.S. Bank, U.S. Bank never filed the original allonge. “In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so.” Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994). Because an allonge is essentially part of the note, see Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 496 n.1 (Fla. 4th DCA 2011), it was necessary for U.S. Bank to file the original allonge along with the original note.

Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So.3d 1044, 1045-46 (Fla. 2d DCA 2016).

Turning to the document at hand, the endorsement and assignment states “I hereby transfer, endorse and assign to _the within Note and Deed of Trust securing the same, so far as the same pertains to said Note, without recourse.” The paper’s reference to “the within Note” contemplates physical attachment to the note, indicating that the paper is effectively an allonge. Further, because the paper does not specify a payee, it is payable to bearer, and was thus negotiable by transfer alone, rendering it a negotiable instrument for which the original document was required.

Because the bank failed to produce the original allonge and did not plead a lost instrument count, we affirm the trial court’s judgment in favor of the homeowner.

Affirmed.

Taylor and May, JJ., concur.


source: Caselaw Access Project

author: Gross, J.

license: Public Domain

text:
    Michel WHISSELL, Appellant, v. Sherrone WHISSELL, Appellee.
    No. 4D15-4641
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Eddie Stephens of Ward, Damon, Pos-ner, Pheterson & Bleau, West Palm Beach, for appellant.
    Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, and Elizabeth J. Kates, Pompano Beach, for appellee.
   Gross, J.

We affirm all aspects of the amended final judgment of dissolution of marriage, save two. We reverse the judgment insofar as it failed to provide Former Husband with specific steps to reestablish contact with the minor child beyond supervised timesharing. We also reverse the alimony award to Former Wife as it was contrary to the parties’ intent in the prenuptial agreement, wherein they waived any right to alimony.

Timesharing

The trial court found that it would be contrary to the child’s best interests for Former Husband to enjoy unsupervised timesharing. This finding was supported by competent substantial evidence. However, the judgment fails to provide Former Husband with specific steps to obtain unsupervised timesharing. “The failure to ‘set forth any specific requirements or standards’ for the alleviation of timesharing restrictions is error.” Witt-Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016) (quoting Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004)). “This applies to both the prevention of timeshar-ing altogether and to restrictions.” Id. While the trial court need not “set out every minute detail of the steps to reestablish unsupervised timesharing,” the parent must leave the courtroom “knowing that if [they] satisfactorily accomplish ] relatively specific tasks, [they] will be able to reestablish unsupervised timesharing.” Id. at 39. Because the trial court did not set forth specific steps for Former Husband to alleviate the restriction on timesharing, this part of the judgment must be reversed,

Alimony

The parties waived their right to alimony in a prenuptial agreement. Notwithstanding the alimony waiver, the prenuptial agreement provided that upon the entry of a final judgment of dissolution of marriage, Former Husband or one of his companies would pay Former Wife a gross salary of $6,000 per month for twenty-four months from the date of the entry of the final judgment of dissolution. Although the trial court found the parties waived their right to alimony in the prenuptial agreement, it found the parties intended the salary payments “would be -a. form of alimony e.g. durational alimony.” This was error.

“Valid prenuptial agreements regarding post-dissolution support are contracts.” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla. 2005). “[Contracts are to be construed in order to give effect to the intent of the parties.” Burns v. Barfield, 732. So.2d 1202, 1205 (Fla. 4th DCA 1999). Neither party questioned the validity or enforceability of the prenuptial agreement.

In waiving the right to alimony, the parties intended to take the gross salary payments outside'chapter 61, Florida Statutes, and outside the power of the trial court to hold Former Husband in contempt in the event,he fails to pay. See English v. Galbreath, 462 So.2d 876, 877 (Fla. 2d DCA 1985) (“Alimony payments ,., are enforceable by contempt proceedings,”); Walters v. Walters, 96 So.3d 972, 976 (Fla. 4th DCA 2012) (recognizing the trial court’s ability to hold a payor “in contempt for failing to pay the amount of court-ordered alimony to, a payee.”). Instead of enforcement by contempt,.the employment prenuptial agreement contemplated that the non-payment of “salary” would be enforceable as any other employment contract, by a traditional breach of contract action. The trial court thus erred in failing to give the prenuptial agreement the effect intended by the parties. -

Conclusion

The judgment is reversed and remanded for the trial court to provide Former Husband with the steps required to lift the timesharing restrictions, “We believe that modification of the order is possible from the record alone and do not suggest that a new trial is necessary.” Witt-Bahls, 193 So.3d at 39. We also reverse paragraph 15 of the judgment, where the trial court erred by treating the gross salary payments set forth in the prenuptial agreement as a form of durational alimony. In all other respects, the judgment is affirmed.

Affirmed in part, reversed in part, and remanded. _

Gerber, O.J., and Kuntz, J., concur. .


author: Damoorgian, J.

text:
    Hermon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1720
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and James W. Mclntire, "Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

In this appeal, Appellant challenges three adjudications of direct criminal contempt imposed by the court after Appellant. went' on a vulgar and disrespectful tirade during a calendar call. We affirm the first adjudication of contempt, but reverse the second and third adjudications.

Although a defendant may lawfully be charged and convicted of multiple counts of contempt during the course of one proceeding, the basis for each charge must be sufficiently distinct. For example, in Tenorio v. State, 462 So.2d 880, 881 (Fla. 2d DCA 1985), the defendant earned four contempt convictions based on “the expression of an obscenity directed to the court at or near the courtroom’s doorway, the repetition of the obscenity when the appellant was brought into the courtroom, and two separate acts of kicking ‘buckets of files’ from the clerk’s desk.” The appellate court affirmed each conviction, holding that “four temporally distinct episodes of contumacious conduct occurred.” Id.

Conversely, a defendant may not be. charged and convicted of multiple counts of contempt based on one continuous episode of contemptuous behavior. See B.M. v. State, 523 So.2d 1185, 1185-86 (Fla. 2d DCA 1988) (holding that .a defendant could not be held in, contempt for mocking the judge in reaction to being held in contempt for swearing at the judge because the entire.encounter was “a continuous episode of sparring” worthy of only a single contempt charge); Butler v. State, 330 So.2d 244, 244 (Fla. 2d DCA 1976) (holding that a “single outburst ... interrupted only by the court interjecting itself long enough to inform the appellant that he had committed yet another act of contempt” should. have resulted in one charge rather than six).

Illustrative of this point is this Court’s recent opinion in Swain v. State, — So.3d -, 42 Fla. L. Weekly D1118, 2017 WL 2131493 (Fla. 4th DCA May 17, 2017). There, a defendant was charged and convicted of contempt after he unleashed a stream of profanity at the court at a change of plea hearing. Id. After the court pronounced its sentence on the contempt charge, the defendant made an additional mocking statement which resulted in another contempt conviction. Id. On appeal, we reversed the second contempt conviction, holding that the underlying “statement was not sufficiently separate from the original stream of profanity to merit a second contempt charge.” Id. We reasoned that the episode was continuous because the additional mocking statement was reactionary to the judge’s imposition of the first contempt charge and was made by the defendant in an attempt to “lessen the court’s authority” and “simply get the last word into the argument.” Id. at-, at D1119.

The transcript of the calendar call here reflects that after the court explained that Appellant’s public defender could not ethically adopt his pro se motion, Appellant became irate and unleashed a stream of profanities at the court. The court interjected long enough to inform Appellant that he committed an act of contempt and in response, Appellant continued with his tirade. This pattern repeated itself several times until Appellant was eventually escorted out of the courtroom. All in all, the obscenities shouted by Appellant were part of the same continuous outburst and seem to best be read as an attempt to get the last word. Although we do not in any way condone Appellant’s disrespectful and vulgar behavior, under these circumstances, Appellant should have only been convicted of one count of contempt. Swain, — So.3d at -, 42 Fla. L. Weekly at D1118; B.M., 523 So.2d at 1185-86; Butler, 330 So.2d at 244. Therefore, we reverse Appellant’s second and third contempt convictions in their entirety.

Affirmed in part and reversed in part.

Ciklin and Levine, JJ., concur.


author: Hanzman, Michael A., Associate Judge.

text:
    CITY OF POMPANO BEACH, Florida, Appellant, v. Nancy C. BEATTY, As Trustee of the Nancy C. Beatty Revocable Living Trust, Dated October 26, 1990, and As Successor Co-Trustee of the William K. Beatty Revocable Living Trust, Dated October 26, 1990, and William K. Beatty, Jr., As Successor Co-Trustee of the William K. Beatty Revocable Living Trust, Dated October 26, 1990, Appellees.
    Nos. 4D16-2621
    4D16-3699
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Scott C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for ap-pellees.
   Hanzman, Michael A., Associate Judge.

I. INTRODUCTION

On May 1, 1974, Appellee, Nancy C. Beatty (and her husband William K. Beatty), as lessors, and Daniel L. Garnsey, as lessee, entered into a ninety-nine-year lease encumbering real property located in Broward County, In October 1989, Appellant, the City of Pompano Beach, assumed the lessee’s interest. The lease required specified rental payments for years one through five, with increases after the fifth year based on the cost of living index commencing “on the first (1st) day of the 61st month of the basic term of this Lease, and on every 37th month thereafter.” The contract also provided that:

Rental payments shall be subject to reappraisal every twenty (20) years by independent MAI of land and improvements at the option of the Lessors and at their expense to show return of 12% of land value, and 6% of improvements but in no event less than rental payment for the 19th year, 39th year, and 59th year, etc.

(Emphasis added).

Appellees first sought to exercise this reappraisal option in 2006—the thirty-third (33) year of the lease term. Based upon this reappraisal, Appellees then demanded increased rent. When Appellant failed to accede to this demand, Appellee filed suit for breach of contract. Appellant, as an affirmative defense, predictably insisted that the property was subject to reappraisal only in years twenty, forty, sixty, and eighty and, as a result, it was not in breach for failing to pay increased rent based upon a reappraisal that was done in year thirty-three.

Appellant eventually moved for summary judgment based upon what it maintained was the clear and unambiguous language of section 2.2(e) of the lease. Ap-pellees cross-motioned on the identical issue, arguing they were entitled to a rent increase because a first reappraisal was permitted at any time so long as twenty years had elapsed from the date the lease was executed (1974), and successive reappraisals were permitted so long as twenty years had elapsed since the most recent reappraisal.

The trial court granted the Appellees’ motion, agreeing with their interpretation of the contract. We do not, and conclude that § 2.2(e) of the lease clearly and unambiguously granted the lessor a right to reappraise the property at specified dates, and only those dates. We therefore reverse.

II. ANALYSIS

As this court has said before, “contracts are voluntary undertakings, and contracting parties are free to bargain for—and specify—the terms and conditions of their agreement.” Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So.3d 989, 993 (Fla. 4th DCA 2014). That freedom is indeed a constitutionally protected right. Nw. Nat’l Life Ins. Co. v. Riggs, 203 U.S. 243, 252-53, 27 S.Ct. 126, 51 L.Ed. 168 (1906); Hoffman v. Boyd, 698 So.2d 346, 348 (Fla. 4th DCA 1997). And when parties choose to agree upon certain terms and conditions of their contract, it is not the province of the court to second-guess their wisdom or “substitute [its] judgment for that of the parties in order to relieve one from an alleged hardship of an improvident bargain.” Int’l Expositions, Inc. v. City of Miami Beach, 274 So.2d 29, 30-31 (Fla. 3d DCA 1973). Rather, the court’s task is to apply the parties’ contract as written, not “rewrite” it under the guise of judicial construction. Gulliver Schs., Inc. v. Snay, 137 So.3d 1045, 1047 (Fla. 3d DCA 2014) (“Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning.”) (quoting Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000)); Pol v. Pol, 705 So.2d 51, 53 (Fla. 3d DCA 1997) (“[A] court cannot rewrite the clear and unambiguous terms of a voluntary contract.”).

The contract here could not be clearer. First, it says that the property is subject to reappraisal “every twenty years,” not any time the lessor desires “so long as” twenty years has passed since inception or a prior appraisal. And if that were not enough, it specifies that a reappraisal may not result in a rental obligation “less than [the] rental payment for the 19th year, 39th year, 59th year, etc.”— not less than the rental payment for the year “prior to reappraisal,” whatever year that may be. Thus, reading this provision as a whole we have no difficulty concluding that it clearly and unambiguously permits reappraisal only at years twenty, forty, sixty, and eighty.

Although the clarity of the provision in dispute ends the analysis, we also point out that Appellees’ tortured “interpretation” amounts to a rewrite of the lease on terms significantly more favorable to the lessor only. At the time this contract was entered into, neither party knew—or had any way to predict—what the condition of the real estate market would be at the time reappraisal was authorized (i.e., years twenty, forty, sixty, and eighty). So a reappraisal might benefit the lessor and it might not. The parties would simply have to accept the “market” as they found it. But under Appellees’ “interpretation” they could sit back and exercise the reappraisal option whenever the market would benefit them the most, so long as twenty years had elapsed since the execution of the lease. So if the market was weak in year twenty (or forty, sixty, or eighty), Appellees could just accept the cost of living increases, wait for the market to rise, and then—at the most opportune time—elect to reappraise. Of course if the market was strong in years twenty, forty, sixty, and eighty, the lessee would have no corresponding right to delay reappraisal.

The bottom line is that Appellees’ interpretation gives it something the contract does not—an “option” to reappraise when—in its view—to do so would be most advantageous. We will not sanction such a one way judicial re-write.

The trial court’s final judgment in favor of Appellees is reversed with directions to enter final judgment in favor of Appellant. Given our reversal of the final judgment, we likewise reverse the final judgment awarding Appellees’ attorney’s fees and costs. See City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006) (“[W]here an award of attorney’s fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award”).

Reversed and remanded.

Damoorgian and Ciklin, JJ., concur.

      . Nor is the provision ambiguous simply because the litigants ascribe different meanings to the language employed—something that occurs every time the interpretation of a contract is litigated. Incorrect and even absurd interpretations of unambiguous contracts are often advanced in these types of disputes. But a true ambiguity exists only when the language at issue “is reasonably susceptible to more than one interpretation.” Lambert v. Berkley S. Condo. Ass'n, 680 So.2d 588, 590 (Fla, 4th DCA 1996); Campaniello v. Amici P'ship, 832 So.2d 870, 872 (Fla. 4th DCA 2002) ("[W]hen the terms of a written instrument are disputed and rationally susceptible to more than one construction, an issue of fact is presented ...."); Am. Med. Int'l, Inc. v. Scheller, 462 So.2d 1, 7 (Fla. 4th DCA 1984) (”[F]anciful, inconsistent, and absurd interpretations of plain language are always possible. It is the duty of the trial court to prevent such interpretations.”).


author: Per Curiam.

text:
    Errol STILLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0283
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]
    Errol Stilley, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The order summarily denying appellant’s motion for postconviction relief is affirmed. Appellant makes several claims regarding his plea and his inability to comprehend it because he was on medication. However, in his motion, he alleges defense counsel told him not to mention to the judge that he was taking psychotropic medication. He is not entitled to relief if he deliberately did not tell the trial court that his medication was affecting his understanding. See Iacono v. State, 930 So.2d 829, 830-31 (Fla. 4th DCA 2006). As to his other claims, most are conclusory or show no ineffective assistance. Moreover, his claims that he would not have taken such a favorable plea offer and would have gone to trial, given the evidence against him, are patently incredible. Appellant was facing mandatory life and thirty years in prison on four counts as a career criminal and a prison releasee reoffender. He entered a negotiated plea to a term of probation. “A postconviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic and which are inherently incredible.” Capalbo v. State, 73 So.3d 838, 840-41 (Fla. 4th DCA 2011) (recognizing a probability that defendant would not have accepted the plea offer must be objectively reasonable considering the totality of the circumstances, a mere possibility or bald allegations do not suffice, and if objectively unreasonable the claim can be summarily denied); see also Montero v. State, 996 So.2d 888, 891 (Fla. 4th DCA 2008).

Affirmed.

Gerber, C.J., Warner and Levine, JJ., concur.


text:
    Sadrac ISNORD, Appellant, v. Laurens Magloire ISNORD, Appellee.
    No. 4D16-2093
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]
    Sadrac Isnord, Fort Lauderdale, pro se.
    No brief filed for appellee.
   Per Curiam.

We withdraw our prior opinion in this appeal and substitute the following in its place. The trial court dismissed appellant’s petition for modification of a parenting plan because appellant failed to serve the former wife within 120 days, in accordance with Florida Rule of Civil Procedure 1.070(j). Appellant, however, served his former wife by publication, as her whereabouts were unknown. See § 49.011(4), Fla. Stat. (2016); see also Zuccarello v. Zuccarello, 280 So.2d 37, 38-40 (Fla. 3d DCA 1973) (holding that husband’s petition for modification of child support could be maintained against the non-resident wife upon service by publication where the petition was ancillary to and a continuation of a Florida proceeding). Service had been effectuated through publication and was complete before the trial court issued its order requiring service. The court thus erred in dismissing appellant’s complaint for lack of service. We therefore vacate the dismissal and order reinstatement of the ease.

Warner, Taylor and Levine, JJ., concur,


text:
    Kristina M. LAWHON-GRIFFIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3261
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]
    Kristina M. Lawhon-Griffis, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Kristina Lawhon-Griffis appeals the summary denial of her Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We conclude that the trial court erred in denying the motion as successive because appellant’s previous Florida Rule of Criminal Procedure 3.170 motion to withdraw her plea, which was untimely, should have been dismissed without prejudice to filing a proper rule 3.850 motion. See Watson v. State, 111 So.3d 205 (Fla. 4th DCA 2013). We therefore reverse and remand for the trial court to consider appellant’s second motion on the merits.

Reversed and remanded.

Warner, Gross and Levine, JJ., concur.


author: Metzger, Elizabeth A., Associate Judge.

text:
    DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, Appellant, v. Veletta M. WHITE, et al., Appellees.
    No. 4D16-3213
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Steven G. Hurley of Timothy D. Pad-gett, P.A., Tallahassee, for appellant.
    No appearance for appellees.
   Metzger, Elizabeth A., Associate Judge.

Ditech Financial, LLC, f/k/a Green Tree Servicing, LLC (“Bank”), appeals the final order of dismissal entered in favor of Val-etta White (“Homeowner”). The Bank asserts that the trial court improperly granted the Homeowner’s motion to dismiss the complaint for lack of subject matter jurisdiction. We agree and reverse.

The Homeowner executed a note and mortgage in favor of the lender. The note and mortgage were recorded in August 2006. The Bank filed a mortgage foreclosure action against the Homeowner and others in March 2015, due to non-payment on the note (the “Foreclosure Action”). The Courts of Inverrary Condominium Association, the homeowners’ association for the subject property (the “Association”), was a named defendant in the Foreclosure Action. A month earlier, in February 2015, the Association recorded a lis pendens and filed a separate lien foreclosure action against the Homeowner. The Bank was not a named party in the Association’s foreclosure action. In July 2015, a default was entered against the Homeowner in the Foreclosure Action. On March 23, 2016, a Final Judgment of Foreclosure was entered against the Homeowner and all named defendants. A foreclosure sale was set for April 27,2016.

On April 1, 2016, the Homeowner filed a pleading entitled “Verified Motion to Vacate Default, Dismiss Complaint for Lack of Subject Matter Jurisdiction, Vacate Judgment as Void” (the “Motion”). The Motion primarily relied upon section 48.23(l)(d), Florida Statutes (2016). Section 48.23(l)(d), Florida Statutes, provides in part that the recording of a notice of lis pendens “constitutes a bar to the enforcement .,, of all interests and liens ... unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice.” (Emphasis added). The Homeowner argued the trial court lacked subject matter jurisdiction over the Foreclosure Action inasmuch as the Bank improperly filed the Foreclosure Action versus intervening in the Association’s lien foreclosure action. It was the Homeowner’s position that section 48.23(l)(d), Florida Statutes, barred the Bank from separately filing the Foreclosure Action, and required the Bank to intervene in the Association’s lien foreclosure action to seek a foreclosure remedy against the Homeowner. The lower court agreed with the Homeowner’s argument, granted the Motion, and dismissed the Foreclosure Action.

We conclude the trial court erred when it found the court lacked subject matter jurisdiction over the Foreclosure Action. The lower court’s ruling was based upon a misinterpretation of section 48.23(l)(d), Florida Statutes. Section 48.23(l)(d), Florida Statutes, only acts to preclude enforcement of liens unrecorded at the time a lis pendens is recorded. It is undisputed that the Bank recorded its interest in the subject property years prior to the Association’s lis pendens filing/lien foreclosure action. The Bank was free to separately file the Foreclosure Action. The trial court did not lack subject matter jurisdiction.

Based upon the foregoing, we reverse the trial court’s final order of dismissal and order vacating default, and remand for further proceedings consistent with this opinion.

Ciklin and Klingensmith, JJ., concur.

      . The Homeowner did not challenge, either before the lower court or on appeal, the Bank’s standing to file the Foreclosure Action.

      . The Association voluntarily dismissed its lien foreclosure action on May 8, 2015.

      . The order dismissing the Foreclosure Action for lack of subject matter jurisdiction also stated "the motion to vacate default must likewise be granted.” It is clear the lower court vacated the default due to lack of subject matter jurisdiction versus any other finding.


author: Gerber, C.J.

text:
    Linda W. BOTTA, individually, Bethany B. Boyd, individually, and Nancy D. Colachicco, individually, Appellants, v. CIKLIN, LUBITZ & O’CONNELL, a Partnership of Professional Associations, and Brian M. O’Connell, Esq., individually, Appellees.
    No. 4D17-379
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Michael C. Sasso and Michael A. Sasso of Sasso & Sasso, Winter Park, for appellants.
    Brian M. O’Connell, Ashley Crispin Ackal, and Zachary Rothman of Ciklin Lubitz & O’Connell, West Palm Beach, for appel-lees.
   Gerber, C.J.

The appellant daughters appeal from the circuit court’s order denying their amended motion to transfer the underlying actions from Broward County to Seminole County based on forum non conveniens. The daughters argue the court erred because their evidence showed that Broward County was not a convenient forum while Seminole County was the most convenient forum. We agree with the daughters’ argument. We reverse and remand for transfer of all pending actions to Seminole County.

Procedural History

In 2000, the daughters’ mother executed a durable power of attorney which the appellee law firm drafted. The 2000 POA appointed all three daughters as co-agents. In 2001, the mother moved to Seminole County, where daughter Colachicco resided.

In 2002, the mother executed a new durable power of attorney which the law firm drafted. The 2002 POA appointed only daughter Colachicco as agent. When the mother executed the 2002 POA, she resided in Seminole County.

In 2014, the mother died in Seminole County. Her estate is in probate in Seminole County. After the mother’s estate went into probate, daughters Botta and Boyd alleged that the 2002 POA, appointing only daughter Colachicco as agent, was invalid.

The law firm, as the drafter of the 2002 POA, filed an action in Broward County seeking a declaratory judgment that the 2002 POA was valid as “freely and voluntarily executed” by the mother, with “the requisite capacity” and “free from duress, coercion and undue influence.” The law firm named all three daughters as defendants. The law firm alleged that daughter Botta resided in Connecticut, daughter Boyd resided in Broward County, and daughter Colachicco resided in Seminole County. The law firm alleged that it named all three daughters as defendants to the action based on their “antagonistic and adverse interests.”

However, by the time the law firm filed its lawsuit, the three daughters had resolved their differences. Daughters Botta and Boyd then filed a malpractice counterclaim/third-party complaint against the law firm and the attorney who drafted the POAs. Botta and Boyd claimed to be intended third party beneficiaries of the law firm’s and the attorney’s services for their mother. According to Botta and Boyd, but for the law firm’s and the attorney’s drafting of the 2002 POA, they would have withheld their consent to certain expenditures if they retained the “veto” power of the 2000 POA, and the removal of the “veto” power in the 2002 POA was the proximate cause of losses to them.

The three daughters also united to file an amended motion to transfer venue from Broward County to Seminole County. In them motion and affidavits, they alleged the following. Daughters Boyd and Cola-chicco reside in Seminole County, more than 200 miles from Broward County. Daughter Botta resides in Brevard County, more than 135 miles from Broward County. Round trip travel for all three daughters would require several hours and would be extremely inconvenient. The mother resided in Seminole County when she executed the 2002 POA. The mother’s affairs were managed in Seminole County until she died. The mother’s estate was in probate in Seminole County. Any property being probated was in Seminole County. No connection existed to Broward County.

The daughters also alleged in their motion and affidavits that Broward County was an inconvenient forum for other witnesses who could offer testimony regarding the mother’s condition when she executed the 2002 POA. Those witnesses included:

• The executive director of the living facility where the mother resided in Seminole County. She prepared written statements regarding the mother’s capacity to execute the 2002 POA. She witnessed and notarized the mother’s execution of the 2002 POA in Seminole County. She resides in Seminole County, more than 200 miles from Broward County. Round trip travel would require several hours and would be extremely inconvenient.
• Boyd’s adult children, who spent a significant amount of time with the mother, observing her physical and mental health. They reside in Seminole County, more than 200 miles from Broward County. Round trip travel would require several hours and would be extremely inconvenient.
• The neurological medical staff who treated the mother shortly before she executed the 2002 POA and in the years after. They are located in Orange County, only 19 miles from Seminole County, but more than 200 miles from Broward County. Round trip travel to Broward County would require several hours and would be extremely inconvenient.

The daughters argued that the “overwhelming majority of witnesses reside[ ] in Seminole County, where this cause of action should be transferred.” They also argued that the relevant events took place in Seminole County and that the “interests of justice” were not served by requiring a Broward County court to resolve the actions when it had no connection to the actions.

As for daughters Botta’s and Boyd’s malpractice action against the law firm and the attorney, the daughters argued that action accrued not where the legal services were provided in Palm Beach County, but rather where the resulting harm was suffered by them in Seminole County.

In response to the daughters’ amended motion to dismiss or transfer, the law firm filed an affidavit alleging that when the law firm filed the underlying action, daughter Boyd resided in Broward County.

The court held a hearing on the daughters’ amended motion to dismiss or transfer. No witnesses testified. The law firm’s attorney presented the court with property records indicating that daughter Boyd sold her homestead in Broward County three months after the law firm filed the declaratory judgment action. The daughters’ attorney responded that daughter Boyd was not served with the law firm’s declaratory judgment action until after she moved to Seminole County.

At the end of the hearing, the circuit court announced it was denying the daughters’ amended motion to transfer venue. The court first said that plaintiffs generally get to pick the venue as long as they have a basis for it, and here they had a basis for it in Broward County because daughter Boyd lived there when the law firm filed the complaint. The court also assumed that the law firm picked Broward County as the vehue because it was more convenient for the law firm. The court added: “Who am I now as the Judge to step in and say, ‘Wait a minute plaintiff, you have to go travel up to Brevard and take your witnesses up there and be inconvenienced up there.* It’s the plaintiffs choice as long as they have a reasonable basis for it and they do.” The court also said that the daughters could use video depositions to perpetuate testimony. The court then explained: “It’s going to be inconvenient for somebody, [the law-firm] picked [Broward County], it’s staying here, it’s discretionary with the Court. [The law firm] has a basis, the Court has jurisdiction[,] and half the people are here and half are up there, so that’s the way it is.”

The court immediately entered a written order stating simply that the daughters’ amended motion to transfer for improper venue or. forum non conveniens was denied.

This appeal followed. The daughters have limited their appeal to that portion of the circuit court’s order denying their amended motion to transfer based on forum non conveniens. The daughters argue the court erred because their evidence showed that Broward County was not a convenient forum while Seminole County would be a convenient forum.

Our Review

We have summarized the law governing our review of an order denying a motion to transfer venue for forum non- conveniens as follows:

This Court reviews orders denying motions to transfer venue for an abuse of discretion. ‘
Section 47.122[, Florida Statutes (2009),] governs the transfer of venue from, one Florida county to another on the basis of forum non conveniens. “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of. record in which it might have been brought.” § 47.122, Fla., Stat. (2009). There are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice.
Of the three factors, the convenience of the witnesses is probably the single most important consideration of the three statutory factors. The plaintiffs forum selection is no longer the factor of over-riding importance.
The third factor, that of the interests of justice, is a catch-all consideration including many considerations, and in some close cases this factor may be determinative. One consideration is the convenience of the attorneys which is usually accorded very little, if any, weight....
Other considerations include but are not limited to the avoidance of a crowded court docket and the imposition of jury duty on an uninvolved community.

Pep Boys v. Montilla, 62 So.3d 1162, 1165 (Fla. 4th DCA 2011) (internal alterations, citations, indentations, and some quotation marks omitted).

Applying the foregoing law to this case, we agree with the daughters that the circuit court erred because their evidence showed that Broward County was not a convenient forum while Seminole County was the most convenient forum. We address the three statutory factors in turn.

First, the convenience of the parties favors Seminole County. The daughters’ affidavits established that two of them reside in Seminole County, more than 200 miles from Broward County, and the third resides in adjacent Brevard County, more than 135 miles from Bro-ward County. Round trip travel would require several hours and would be extremely inconvenient. The law firm attempted to overcome the daughters’ agreement on this issue by alleging that when the law firm filed the declaratory judgment action, daughter Boyd resided in Broward County. While that allegation may have been relevant to whether Broward County was a proper forum in which to file the declaratory judgment action, that allegation was not relevant to whether Broward County was a convenient forum to dispose of the combined actions, especially given that, by the time daughter Boyd was served, she had moved to Seminole County. The law firm’s and the attorney’s location in Palm Beach County, near Broward County, is unpersuasive. Although the law firm and the attorney are parties in this case, they are also serving as their own counsel. As we stated in Pep Boys, “the convenience of the attorneys ... is usually accorded very little, if any, weight.” 62 So.3d at 1165.

Second, the convenience of the witnesses, “probably the single most important consideration of the three statutory factors,” id., favors Seminole County. The daughters’ affidavits established that the witnesses who would testify regarding the mother’s capacity to execute the 2002 POA—the executive director of the living facility where the mother resided; daughter Boyd’s adult children; and the neurological medical staff who treated the mother before and after she executed the 2002 POA—reside in or near Seminole County. Round trip travel to Broward County for these witnesses would require several hours and would be extremely inconvenient. The law firm and the attorney did not contest this evidence.

Third, the interests of justice favor Seminole County. The primary dispute pertains to the mother’s capacity when she executed the 2002 POA while residing in Seminole County. The mother’s affairs were managed in Seminole County until she died. The mother’s estate is in probate in Seminole County. Any property being probated is in Seminole County.

In light of the application of the three statutory factors to the instant case, the circuit court’s reasoning for denying the daughters’ motion lacks merit. The law firm’s selection of Broward County as the venue is unpersuasive given that, once a motion to transfer based on inconvenient forum is filed, “[t]he plaintiffs forum selection is no longer the factor of over-riding importance.” Id. Finally, the court’s finding that “half the people are here and half are up there” and “it’s inconvenient for everybody” is not supported by competent substantial evidence.

Based on the foregoing, we reverse the circuit court’s order denying the daughters’ amended motion to transfer venue on the ground of forum non conveniens. We remand for transfer of the subject pending actions between the parties from Broward County to Seminole County.

Reversed and remanded for proceedings consistent with this opinion.

May and Levine, JJ., concur.


author: MAY, J.

text:
    H. GREGORY 1, INC. d/b/a hgreg.com and/or d/b/a greg.com, Appellant, v. David COOK, Appellee.
    No. 4D17-929
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2017]

      Mark Atlas and Ryan Mosher of Litch-field Cavo, LLP, Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   MAY, J.

The defendant appeals an order denying its motion to transfer venue. It argues the sales order agreement contained a mandatory venue clause, requiring the action against it to be brought in Miami-Dade County. We agree and reverse and remand.

The buyer of a used car sued the dealer for violation of the Florida Unfair and Deceptive Trade Practices Act, alleging the dealer in Broward County improperly charged a service fee without the required disclosure. The dealer moved to stay proceedings and compel arbitration, and separately moved to stay proceedings. The trial court denied the motion to stay. The dealer then moved for reconsideration, or in the alternative, to transfer venue. The dealer relied on the following provision of the sales order agreement:

Dealer and Purchaser hereby mutually agree that for any controversy, claim, suit, demand, counterclaim, cross claim, or third party complaint, arising out of, or relating to this Order of the parties’ relationship, including but not limited to Purchaser’s efforts to purchase a vehicle (including obtaining financing for same) and to trade in a vehicle (whether statutory or otherwise and irrespective of whether the Necessary Approvals were obtained):
(b) Venue shall lie exclusively in Miami-Dade County, Florida[.]

The trial court denied the motion for reconsideration or in the alternative motion for transfer of venue without explanation. The dealer now appeals.

We have de novo review. R.S.B. Ventures, Inc. v. Berlowitz, 201 So.3d 719, 720 (Fla. 4th DCA 2016) (citing Am. Boxing & Athletic Ass’n v. Young, 911 So.2d 862, 864 (Fla. 2d DCA 2005)).

The venue clause in the sales order agreement employs the terms “exclusive” and “shall.” It is mandatory in nature by the use of its terms. Such a provision “must be honored by the trial court in the absence of a showing that the clause is unreasonable or unjust.” Michaluk v. Credorax (USA), Inc., 164 So.3d 719, 722-23 (Fla. 3d DCA 2015). Mere inconvenience or additional expense to an objecting party is not sufficient to warrant rejection of a mandatory venue clause. Farmers Grp., Inc. v. Madio & Co., 869 So.2d 581, 582-83 (Fla. 4th DCA 2004).

The dealer argues the complaint fails to allege proper venue in Broward County. The only exhibit attached to the complaint was the executed retail sales order that provided the dealer’s address in Doral, Florida. That location is in Miami-Dade County. It also contained the language quoted above. The dealer points out that the buyer neither filed a motion or other documentation in opposition to the dealer’s motion to transfer venue nor argued against the motion.

With nothing to show that the mandatory venue clause was unreasonable or unjust, and no apparent opposition to the motion to transfer, the trial court erred in denying the motion. We therefore reverse and remand the ease to be transferred to Miami-Dade County, Florida.

Reversed and Remanded.

Taylor and Forst, JJ., concur.


author: BLACK, Judge.

text:
    HARBORSIDE HEALTHCARE, LLC f/k/a Harborside Healthcare Corporation; Sun Healthcare Group, Inc.; and 2600 Highlands Boulevard North, LLC, Petitioners, v. Erick M. JACOBSON and Amanda N. Jacobson as co-personal representatives of the Estate of William F. Jacobson, deceased, Respondents.
    Case No. 2D16-3770
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017

      Thomas A. Valdez, Sheila K. Nicholson, and Alexis M. Connell of Quintairos, Prie-to, Wood & Boyer, P.A., Tampa, for Petitioners.
    Megan L. Gisclar and Joanna Greber Dettloff of Wilkes & McHugh, P.A., Tampa, for Respondents.
   BLACK, Judge.

Harborside Healthcare, LLC, f/k/a Har-borside Healthcare Corporation; Sun Healthcare Group, Inc.; and 2600 Highlands Boulevard North, LLC (collectively Harborside), challenge the order granting the motion to compel discovery filed by the Estate of William F. Jacobson, through co-personal representatives Erick M. Jacobson and Amanda N. Jacobson (the Estate). We grant the petition in part and deny it in part.

William F. Jacobson was a resident of Bay Tree Center, a nursing ■ facility licensed pursuant to chapter 400, Florida Statutes, from November 20, 2012, until February 4, 2013. After his discharge from Bay Tree Center, Mr. Jacobson passed away. In December 2014, the Estate filed the underlying lawsuit against Harborside, seeking damages for wrongful death, negligence, and violation of nursing home residents’ rights. In 2016, the Estate amended the complaint and served the requests for production at issue in this proceeding.

The Estate propounded a request for production and a request for production of electronic mail. The request for production included seventy-three paragraphs with subrequests. Harborside produced responsive documents to some of the requests and objected to others. The objections were tiered. Harborside initially objected to the requests as overly broad, unduly burdensome, vague, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. It also objected to various requests as subject to quality assurance, peer review, attorney-client, or work-product privileges; as proprietary documents; as violative of the privacy rights of Harborside’s employees; and as violative of the Health Insurance Portability and Accountability Act of 1996 (HI-PAA).

The request for production of electronic mail included all e-mails or other electronic communications sent or received by virtually any administrator, director, or supervisor for the period of time six months prior to Mr. Jacobson’s residency through nine months after his discharge and containing any one of a litany of words or their derivations. Harborside objected to the request as overly broad and—particularly as to those time periods outside of Mr. Jacobson’s residency—irrelevant. It further objected based on the e-mails being created for quality assurance purposes and protected by attorney-client or work-produet privileges and by HIPAA and chapter 400, Florida Statutes, because the information sought concerned the care and treatment of residents other than Mr. Jacobson. The request for production of electronic mail also included a request for Harborside’s electronic mail retention policy.

The Estate filed its motion to compel, along with a memorandum of law and a proposed order granting the motion. The court granted the motion without holding a hearing, executing the order prepared by the Estate. The order contains no findings and directs Harborside to produce all responsive documents. Harborside filed a motion for reconsideration, arguing in part that the trial court erred in overruling all of Harborside’s asserted objections without a hearing and requesting specific rulings on the asserted objections. That motion was denied without elaboration.

Harborside now seeks a writ of certiorari quashing the order compelling discovery as to nineteen of the requests for production and as to the request for electronic mail production. It contends that the trial court departed from the essential requirements of the law in multiple ways, including by determining that the discovery requests were relevant, by failing to conduct the necessary in camera review of certain responsive documents, and by failing to require the Estate to meet the requirements necessary to gain access to privileged or protected documents.

“Certiorari review of a discovery order is appropriate when it ‘departs from the essential requirements of law, .causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.”’ Bright House Networks, LLC v. Cassidy, 129 So.3d 501, 505 (Fla. 2d DCA 2014) (quoting Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So.2d 1205, 1207 (Fla. 2d DCA 2005)). Only if the challenged order causes irreparable harm to the petitioner, conferring jurisdiction to this court, do we consider whether the trial court departed from the essential requirements of the law in entering it. Bright House Networks, 129 So.3d at 505.

Although not every erroneous discovery order is remediable by certiora-ri, a writ of certiorari is “an appropriate remedy for discovery orders that depart from the essential requirements of the law by requiring patently overbroad discovery so extensive that compliance with the order will cause material injury to the affected party throughout the remainder of the proceeding, effectively leaving no adequate remedy on appeal.” Life Care Ctrs. of Am. v. Reese, 948 So.2d 830, 832 (Fla. 5th DCA 2007) (first citing Devereux Fla. Treatment Network, Inc. v. McIntosh, 940 So.2d 1202, 1205-06 (Fla. 5th DCA 2006); then citing Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006); and then citing Wooten, Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245, 1246 (Fla. 5th DCA 1990)). Similarly, “an order that entitles a party to carte blanche discovery of irrelevant material demonstrates the type of irreparable harm that may be remedied via petition for writ of certiorari.” Root v. Balfour Beatty Constr. LLC, 132 So.3d 867, 869 (Fla. 2d DCA 2014).

Certiorari relief is also appropriate in cases which allow discovery of privileged information because once such information is disclosed, there-is “no remedy for the destruction of the privilege available on direct appeal.” Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 506 (Fla. 2d DCA 2006) (quoting Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005)). The same is true of production of discovery implicating privacy rights, Root, 132 So.3d at 869, requiring disclosure of trade secrets or other proprietary information, Bright House Networks, 129 So.3d at 505, and requiring production of documents subject to peer review privilege, Beverly Enters.-Fla., Inc. v. Ives, 832 So.2d 161, 164 (Fla. 5th DCA 2002).

Moreover, it may be a departure from the essential requirements of the law when the trial court requires production of documents—without explanation—despite objections that statutory protections apply. Bartow HMA, LLC v. Kirkland, 171 So.3d 783, 785 (Fla. 2d DCA 2015). That is, where the trial, court fails to specifically address whether claimed statutory privileges apply, leaving this court “to guess at the basis for the discovery of each document” and as to whether the trial • court even considered the objection, certiorari relief may be warranted. Id. at 786-87.

For these reasons, we quash the order to the extent it requires production of documents responsive to paragraphs 10, 11, 16, 27, 28, 29, 30, 31, 32, 34, 35, 39, 40, 50, 61, 62, 65, and 66 of the Estate’s request for production. We also quash the order to the extent that it requires production of documents responsive to paragraph 1 of the Estate’s request for electronic communications. The order as it relates to the remaining , paragraphs of the request for production and request for production of electronic communications remains in effect. “Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery.” Root, 132 So.3d at 870-71. '

Petition granted in part and denied in part; order quashed in part.

SILBE,RMAN and MORRIS, JJ., Concur.

      . As alleged by the Estate, Bay Tree Center is operated by 2600 Highlands Boulevard North. Harborside Healthcare Corporation and Sun Healthcare Group are involved in the ownership, leasing, operation, or management of Bay Tree Center.

      . The request was directed to the electronic communications of the “Administrator, Director of Nursing, Business Office Manager, Clinical Reimbursement Director/Supervisor, Director of Rehabilitation, Admissions/Marketing Director, Regional Director of Operations, Regional Admissions/Marketing Director, Regional Nurse Consultant, Regional Vice President, any and all members of any Board of Directors, any officers or managers of [Harborside], President, CEO, COO, and/or CFO,” It sought electronic communications containing any one of thirty identified words or terms, including: Jacobson, staffing, labor, budget, census, Medicare, Medicaid, infection, return to hospital, and discharge.

      . Pursuant to an administrative order of the circuit court, the trial court was not required to hold a hearing on the motion. See Re: Motions decided on written submissions— Civil Division, Admin. Order No. 2015-056 (Oct. 23, 2015), http://www.jud6.org/Legal Community/LegalPractice/AOSAndRules/aos/ 2015% 20PDF% 20Files/2015-05 6.pdf. However, Harborside had requested oral argument on the motion to compel; no ruling appears to have been made on that request.

      . It is also a departure from the essential requirements of the law to require "the disclosure of confidential medical information of nonparties without notice to those parties ... and without adequate protections to protect the privacy rights of those nonparties under the Florida Constitution.” Graham v. Dacheikh, 991 So.2d 932, 934 (Fla. 2d DCA 2008). Such protections include the redaction of identifying information. Age Inst. of Fla., Inc. v. McGriff, 884 So.2d 512, 514 (Fla. 2d DCA 2004). Additionally, when the trial coürt orders the "wholesale disclosure of personnel files containing confidential information of employees not related to the pending case,” it departs from the essential requirements of the law. Seta Corp. of Boca, Inc. v. Office of the Att'y Gen., 756 So.2d 1093, 1094 (Fla. 4th DCA 2000) (quoting CAC-Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434, 435 (Fla. 3d DCA 1994)). Producing employees’ complete files "would reveal extensive personal information which is not reasonably calculated to lead to the’discovery of admissible, evidence.” CAC-Ramsay, 641 So.2d at 435.


author: PER CURIAM. MAKAR, J.,

text:
    Clyde LITTLEMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-1642
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017

      Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee,
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In the early morning hours of October 13, 2013, Appellant, age 31, engaged in sexiially-explicit online communications with an undercover officer posing as a 14-year-old girl and her uncle. Among other things, Appellant told the officer posing as the girl that he was going to use his tongue on her “private area”, and then “slowly put [himjself inside [her] and .,. do that [until he’s] done and [she’s] satisfied.” That evening, Appellant traveled to what he thought was the girl’s house in order to have sex with her. Appellant was arrested. upon his arrival at the house.

Appellant was charged with four offenses, only three of which are at issue in this appeal: Count 1, traveling to meet a person believed to be a minor to engage in sexual conduct in violation of section 847.0135(4), Florida Statutes (2013); Count 3, using a computer service to solicit a person believed to be a minor to engage in sexual conduct in violation of section 847.0135(3)(a); and Count 4, using a computer service to solicit a person believed to be a minor’s guardian to allow sexual conduct with the minor in violation of section 847.0135(3)(b). Appellant pled guilty, to Count 1 and no contest to Counts 3 and 4. He was adjudicated guilty on all counts and sentenced to concurrent five-year prison terms, followed by five years of sexual offender probation.

Appellant’s five-year prison sentence was a slight downward departure from the lowest permissible sentence of 65.7 months reflected on his scoresheet. However, the trial judge expressly rejected Appellant’s request for an even lower sentence, explaining that Appellant’s sentence would be “based on what [ ] record [he] has, [his] age, and the type of communication that brought [him] down here, not necessarily how many different charges the State could put on [him] .for the same activity.” The judge also emphasized that even though the multiple solicitation offenses “may have added to the guidelines they’re not going to add to what I’m going to do.”

On appeal, after his counsel filed an Anders brief, Appellant filed a pro se brief arguing that his solicitation convictions in Counts 3 and 4 violated the prohibition against double jeopardy because those offenses were subsumed within the traveling offense in Count 1, and that his sentence was based on an erroneous sentencing scoresheet because it included both solicitation convictions. We rejected these arguments and affirmed Appellant’s judgment and sentence in Littleman v. State, 159 So.3d 975 (Fla. 1st DCA 2015) (Littleman I). Appellant, through counsel, sought review of Littleman I in the Florida Supreme Court, and in Littleman v. State, 2016 WL 1664985 (Fla. Apr. 27, 2016), the Court quashed Littleman I and remanded for reconsideration in light of State v. Shelley, 176 So.3d 914 (Fla. 2015).

On remand, we ordered the State to show cause why Appellant’s convictions and sentences for the two solicitation offenses should not be vacated based on Shelley. The State filed a response arguing that Shelley is not controlling here because the solicitations were two separate and distinct acts, and that even if Shelley controlled, the remedy would be to vacate only one of the two solicitation convictions. Appellant, through counsel, filed a reply arguing that both of the solicitation convictions should be vacated pursuant to Shelley. We agree with the State as to the appropriate remedy under the circumstances of this case.

Shelley held that because the statutory elements of solicitation are subsumed within the statutory elements of traveling after solicitation, double jeopardy principles prohibit separate convictions for solicitation and traveling when the offenses are “based on the same conduct.” See 176 So.3d at 919. However, where the offenses are not based on the same conduct, Shelley does not prohibit convictions for both solicitation and traveling after solicitation. See, e.g., Lee v. State, Case Nos. 1D15-943 & 1D15-945 (Fla. 1st DCA June 1, 2017) (en banc); McCarter v. State, 204 So.3d 529 (Fla. 1st DCA 2016); McCarthy v. State, 193 So.3d 1059 (Fla. 1st DCA 2016); Anderson v. State, 190 So.3d 1120, 1121 (Fla. 1st DCA 2016); Stapler v. State, 190 So.3d 162 (Fla. 5th DCA 2016); Meythaler v. State, 175 So.3d 918, 919 (Fla. 2d DCA 2015).

Here, Appellant was separately charged with and pled to solicitations involving two different victims and modes of communication: (1) text messages with the officer posing as a 14-year old girl, and (2) email with the officer posing as the girl’s uncle. Because the offenses were based on different conduct, only one of the resulting solicitation convictions was necessarily subsumed in the traveling offense. Thus, Shelley only requires one of the solicitation convictions to be vacated.

Accordingly, we reverse and remand for the trial court to vacate one of Appellant’s solicitation convictions. In all other respects, we affirm Appellant’s judgment and sentence.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

WETHERELL and ROWE, JJ., CONCUR; MAKAR, J., CONCURS SPECIALLY WITH OPINION.

MAKAR, J.,

concurring specially.

Around midnight, Clyde Littleman, Jr., sent an email response to a Craigslist personal ad (entitled “Don’t waste our time and we won’t waste yours”), the recipient being a detective pretending to be an uncle seeking someone to have sex with his 14-year-old niece. After bantering with Little-man about his fictitious niece’s availability, the detective told Littleman the niece wanted him to text her, which Littleman did, unaware that his texts (which became sexually explicit) were to the dual-role-playing detective. The record doesn’t reflect any significant break in time between the emails and texts. Later that day, Lit-tleman was arrested at a pre-arranged location where he was to meet the fictitious niece for sex, the relevant charges being (1) traveling to meet a person believed to be a minor to engage in sexual conduct after soliciting the minor or the person believed to be the minor’s guardian using a computer service (§ 847.0135(4), Fla. Stat. (2002)), and (2) two solicitation counts, one being the use of a computer service to solicit a person believed- to be a minor to engage in sexual conduct and the other doing so to solicit a person believed to be the guardian of the minor for such purpose (§ 847.0135(3)(a) & (b), Fla. Stat. (2002)).

We initially held that Littleman’s convictions did not violate double jeopardy, but in light of State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), our holding was incorrect because solicitation charges are subsumed in traveling charges. No dispute, therefore, exists that at least one of the two solicitation charges must be vacated. The question is whether both should be vacated because they formed a single criminal episode or, alternatively, whether they are two separate offenses, only one of which is to be vacated. Compare Hammel v. State, 934 So.2d 634, 635-36 (Fla. 2d DCA 2006) (double jeopardy violation where “[tjhere was no temporal break in the conversation or a change in circumstances to warrant separate charges”) with Hartley v. State, 129 So.3d 486, 490-91 (Fla. 4th DCA 2014) (no double jeopardy “where there were separations of time between each of the crimes charged”).

On this record, which includes only the charging document, it is dubious that the two solicitation charges are part of anything other than a single criminal episode due to their temporal propinquity. See Hughes v. State, 201 So.3d 1230 (Fla. 5th DCA Oct. 21, 2016) (compiling cases). The arrest report presents the email and text exchanges as one continuous communication occurring around and just after midnight; Littleman traveled hours later to the location at which the liaison was to occur.

But the constitution doesn’t prohibit “multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments.” McKinney v. State, 66 So.3d 852, 854 (Fla. 2011). In light of this principle, the legislative tie-breaker in this case is the sentence at the end of section 847.0135(3), which states: “Each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.” Though the import of this sentence is to authorize punishment for each separately charged offense, it is unclear whether it applies to both subsections (a) (soliciting minors) and (b) (soliciting parent/guardian/custodian) or to only subsection (b) to which it is directly attached. The Second District in its .Shelley decision implied the latter, saying that the sentence “is an explicit statement of the legislature’s intent to authorize multiple punishments for each violation of section 847.0135(3)(⅞).” Shelley v. State, 134 So.3d 1138, 1140 (Fla. 2d. DCA 2014) (emphasis added), approved, 176 So.3d 914 (Fla. 2015). The Florida Supreme Court in Shelley, however, did not explicitly, limit the sentence to subsection (b), but likewise did not explicitly include, subsection (a); instead, it said that the “statement pertains only to charging solicitation offenses” in subsection (3) without further elucidation. 176 So.3d at 919. Of course, this statement does not apply to traveling violations under subsection (4), which has no similar statement as to the viability of separate offenses. Id.

The most reasonable conclusion, based on the structure of subsection (3), is that the statement applies to both (a) and (b), thereby providing legislative authorization for separate punishments for persons who solicit children (or those believed. to be children) and who solicit parent/guardian/custodian (or those believed to be a parent/guardian/custodian), even if the solicitations are part of a single criminal episode—as they appear to be here. Even though Littleman’s two electronic communications were .a part of single criminal episode with a detective playing the roles of a child and her uncle, the legislature has determined that both are separately punishable, one of which must be vacated under Shelley.

      . The State did not object to the downward departure.

      . Although the text messages referred to multiple distinct unlawful sexual acts, the State did not take the position in this case that the text messages could support multiple solicitation convictions. Accordingly, for purposes of analyzing Appellant’s double jeopardy claim, we treat all of the text messages as a single act of solicitation.

      . It does not matter which one of the solicitation convictions the trial court vacates because they were both scored the same on Appellant’s scoresheet and it is clear from the trial court’s comments at the sentencing hearing that Appellant was going to receive the same overall sentence irrespective of the number of solicitation convictions. Cf. Brooks v. State, 969 So.2d 238, 241-42 (Fla. 2007) (scoresheet error is harmless on direct appeal when the record conclusively shows that trial court would have imposed the same sentence).


author: PER CURIAM.

text:
    Jonathan WRIGHT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0872
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017
    Jonathan Wright, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathan Wright appeals the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging an entitlement to additional jail and prison credit. For the reason discussed below, we reverse and remand.

In 1985, Appellant was convicted of numerous crimes and sentenced to consecutive terms of 150 years’ imprisonment. In 2007, he was resentenced in response to a motion to correct illegal sentence. See Wright v. State, 941 So.2d 538 (Fla. 1st DCA 2006). He filed the instant motion for postconvietion relief in July 2013, alleging an entitlement to additional credit for time spent in the Duval County Jail and for time spent in prison prior to being resen-tenced.

The trial court denied the motion on the ground that Appellant has unsuccessfully raised the issues numerous times. See Fla. R. Crim. P. 3.801(d) (“No successive motions for jail credit will be considered.”); State v. McBride, 848 So.2d 287, 290 (Fla. 2003) (although there is no ban on filing successive 3.800(a) motions, collateral es-toppel prohibits a defendant from raising the same illegal sentencing claim which has already been raised in a prior postcon-viction motion and decided against him on the merits). However, the trial court failed to attach any documents indicating the issues raised in the motion were previously determined to be meritless. See Fla. R. Crim. P. 3.801(e) (incorporating portions of rule 3.850, including subsection (f)); Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”); Arnold v. State, 949 So.2d 1141 (Fla. 1st DCA 2007) (reversing denial of rule 3.800(a) motion because trial court failed to attach portions of the record that demonstrate the motion was successive).

In response to this Court’s Toler order, the State properly concedes that we must reverse and remand for the trial court to attach documents proving Appellant’s claims are successive, or to address the claims for prison and jail credit on the merits.

REVERSED and REMANDED.

WETHERELL, RAY, and MAKAR, JJ., concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).

      . To the extent Appellant seeks county jail credit, his motion should be analyzed under Florida Rule of Criminal Procedure 3.801, which became effective on July 1, 2013, and applies to all claims for county jail credit. That rule states that a motion seeking jail credit must be under oath and include a number of required allegations. To the extent he seeks jail credit, appellant's motion is facially insufficient as it is not under oath and is missing almost every required allegation. If the trial court does not deny the motion as successive or refuted by the record, it should give Appellant an opportunity to amend his claim for jail credit. See Fla, R. Crim. P. 3.850(f)(2).


author: WOLF, J.

text:
    Florzell Antonio Dewayne FAULK, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5428
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017

      Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, who was convicted of burglary with a battery, raises a number of issues on appeal. We find one to be dispos-itive: appellant alleges the trial court’s failure to instruct the jury on his affirmative defense of consent to enter the victim’s vehicle amounted to fundamental error. We agree with appellant and reverse and remand for a new trial.

The prosecution asserted during appellant’s trial that the victim was waiting in her vehicle on New Year’s Eve outside of a club to pick up a friend when appellant, uninvited, jumped into the passenger seat of her vehicle, demanded money from her, and proceeded to batter her when she failed to comply with his demands.

Appellant testified in his own defense and stated that the victim invited him into her car because she knew he was a neighborhood drug dealer and wanted to purchase drugs from him. Appellant stated he gave her some cocaine and requested cash in return; when she refused to pay right away as requested, appellant admitted that he did batter her. Thus, appellant’s theory of defense was that he could not have committed the crime of burglary because the victim invited him into her vehicle.

Burglary, as defined by section 810.02(l)(b)(l), Florida Statutes (2015), means “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” (Emphasis added).

The standard jury instructions for burglary include two requisite elements: (1) that the defendant entered a conveyance owned by or in the possession of the victim; and (2) at the time of entering the conveyance, the defendant had the intent to commit an offense other than burglary or trespass. Fla. Std. Jury Instr. (Crim.) 13.1. The standard jury instructions also include an optional third element, that the defendant was not licensed to enter the conveyance, which should be given “only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public.” Fla. Std. Jury Instr. (Crim.) 13.1. This third element amounts to an instruction on the affirmative defense of consent. Petrucelli v. State, 855 So.2d 150, 154 (Fla. 2d DCA 2003) (“Consent to enter a premises is an affirmative defense to the charge of burglary.”),

Appellant alleges the trial court’s failure to instruct the jury on this third element was fundamental error, correctly noting that because trial counsel failed to preserve this issue below, it can only be reviewed for fundamental error. Martinez v. State, 981 So.2d 449, 455 (Fla. 2008).

Typically, when a court fails to instruct on a disputed essential element of a charged crime, fundamental error occurs. Id. Here, though, the “third element” of consent noted in the standard jury instructions is not actually an essential element of the crime of burglary, but rather, an affirmative defense to the crime of burglary. State v. Hicks, 421 So.2d 510, 511 (Fla. 1982). “Where the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’” Martinez, 981 So.2d at 455 (quoting Smith v. State, 521 So.2d 106, 108 (Fla. 1988)); see also Woods v. State, 95 So.3d 925, 927 (Fla. 5th DCA 2012). The lack of a jury instruction on an affirmative defense only amounts to fundamental error when “a defendant is deprived of his or her sole or primary defense strategy, and that defense is supported by evidence adduced at trial not otherwise characterized as weak.” Woods, 95 So.3d at 927.

Here, the failure to instruct the jury on the defense of consent did deprive appellant of his sole theory of defense, and, therefore, amounted to fundamental error. Both parties noted that consent was a central issue in the case; for example, the prosecutor, during closing arguments, stated, “It is going to come down to whether the defendant was in the vehicle rightfully. Whether he had permission to be in there.”

Not only was consent a central issue, it was appellant’s only viable defense to the crime of burglary. In his own testimony, appellant admitted that he intended to commit an offense when he entered the victim’s vehicle; he intended to sell the victim cocaine. Further, appellant also admitted to battering the victim within the vehicle; although he claimed he did not form the intent to batter her until after he had already entered her car, the jury had the ability to weigh appellant’s credibility and in turn, disbelieve his testimony. Because appellant admitted both to intending to sell the victim drugs and to battering the victim, his only viable defense against the charge of burglary in this case was that he had consent to enter the victim’s vehicle.

Finally, the tidal court’s failure to instruct the jury on appellant’s defense of consent amounted to fundamental error because it is clear from the record that the jurors struggled with the issue of consent. The jury indicated confusion on this issue by requesting clarification during deliberations as to whether the definition of “entered” in the burglary charge encompassed all entry, “whether invited or not?” In response to the jurors’ question, the trial court informed the jury that it had to rely on the jury instructions; however, no instruction on the issue of consent or invitation to enter had been provided to the jury.

Thus, we conclude that the failure of the trial court to instruct the jury on appellant’s sole defense of consent amounted to fundamental error, and we REVERSE and REMAND this case for a new trial.

MAKAR and M.K. THOMAS, JJ., CONCUR.

      . The failure of defense counsel to request the jury instruction on the affirmative defense of consent in this case also amounted to ineffective assistance of trial counsel on the face of the record. Where consent to enter was appellant’s only viable defense to the charge of burglary, there was no conceivable strategic reason to fail to request that the jury be instructed on that defense.

      . The failure of defense counsel to request this instruction at the time of the jury’s inquiry also demonstrated ineffectiveness on the face of the record.


author: Ciklin, C.J.

text:
    James SAINT-FORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4708
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, C.J.

James Saint-Fort (“the defendant”) challenges his conviction for trespass while armed with a dangerous weapon. He argues that the rock he raised up and aimed—but did not throw—at a security guard could not constitute a dangerous weapon under section 810.09(2)(c), Florida Statutes (2016), and thus his motion for a judgment of acquittal should have been granted and a judgment of guilt entered on the lesser included offense of trespass. We disagree and affirm.

The evidence adduced at trial established that the defendant became involved in a heated argument with a security guard at a grocery store regarding the defendant’s trespass on the commercial property. The defendant threatened to hit the guard over the head with a brick. The defendant then walked across the street where he retrieved a rock from a construction site. The rock was “big enough that [the security guard] could see it from across the street.” The defendant ran back toward the guard, who yelled, “Don’t come onto the property, don’t cross.” Instead of heeding the command, the defendant “hurdled the bushes” and came within six feet of the security guard. The defendant lifted his arm and drew it back as if to throw the rock at the guard. When the guard unhol-stered his gun, the defendant fled. Upon his arrest, the rock was recovered. It was ultimately entered into evidence at trial.

Section 810.09(2)(c) provides that the offense of trespass is a felony of the third degree “[i]f the offender is armed with a firearm or other dangerous weapon during the commission of the offense.” The term “dangerous weapon” is not defined in chapter 810, which governs burglary and trespass. See § 810.011, Fla. Stat. (2015). However, the standard jury instruction for trespass on property other than a structure or conveyance defines “dangerous weapon” as “any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 13.4. Our courts have thus looked to whether a weapon has been used in a manner likely to cause great bodily harm or death in determining whether a weapon is a dangerous weapon. See Brown v. State, 896 So.2d 808, 810 (Fla. 5th DCA 2005) (finding an antique firearm the defendant stole during the course of a burglary was not a dangerous weapon); McCoy v. State, 789 So.2d 489, 490 (Fla. 2d DCA 2001) (holding that a pocketknife used to cut a porch screen during a burglary was not a dangerous weapon); Arroyo v. State, 564 So.2d 1153, 1154-55 (Fla. 4th DCA 1990) (holding that a pocketknife found on a burglar was not a dangerous weapon where the burglar did not make any threatening gestures with the knife).

Additionally, because our courts have viewed the terms “dangerous weapon” and “deadly weapon” as having the same meaning, see Jones v. State, 885 So.2d 466, 468 (Fla. 4th DCA 2004); King v. State, 779 So,2d 466, 467 (Fla. 2d DCA 2000), opinions involving the classification of a weapon as a deadly weapon provide guidance. This court has explained that whether a weapon is deadly “ ‘is a question of fact to be determined by the jury from the evidence, taking into consideration its size, shape and material and the manner in which it was used or was capable of being used.’ ” Simmons v. State, 780 So.2d 263, 265 (Fla. 4th DCA 2001) (quoting Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984)). Further, “a simple threat with an item does not, alone, render that item deadly for the purpose of sentence enhancement.” Suit v. State, 901 So.2d 986, 988 (Fla. 4th DCA 2005).

Under certain circumstances, a rock can be a dangerous or deadly weapon. Compare J.P. v. State, 128 So.3d 61, 61-62 (Fla. 3d DCA 2013) (finding that quarter-sized rocks the child was “merely flick[ing]” at the victim did not constitute deadly weapons (alteration in original)), with A.H. v. State, 577 So.2d 699, 700 (Fla. 3d DCA 1991) (finding a rock was a deadly weapon where it was the size of a baseball and was thrown at the victim but “hit[ ] a nearby wall with a loud ‘boom’ five to ten feet from where the [victim] was standing”).

The defendant argues that the rock in this case did not constitute a deadly weapon because the defendant merely displayed it and caused no harm. Opinions of this court have held that the threatened use of an object in a manner likely to cause death or great bodily harm may transform the object into a deadly or dangerous weapon.

In McCoy v. State, 493 So.2d 1093, 1094 (Fla. 4th DCA 1986), a suspected shoplifter broke away from store employees and pulled a small pocketknife out of his pocket. With his back to the wall, he waved it at the employees and warned them to leave him alone. Id. The employees testified that the defendant did not attempt to hurt them. Id. On appeal of his conviction for multiple counts of aggravated assault with a deadly weapon, this court affirmed, reasoning that “there was sufficient evidence from which the jury could have concluded the manner in which appellant used the small pocketknife constituted an assault with a deadly weapon.” Id. at 1095.

In another case, this court found that an unknown object constituted a deadly weapon where the defendant walked up to a drive-through window of a restaurant, displayed what appeared to be a bomb, and threatened to “blow that bitch up” if someone didn’t open the cash drawer and give him money. Suit, 901 So.2d at 987-88. The court noted that the fact that the object was not recovered was not dispositive. Id. at 988.

In a third case, this court implied that behavior indicating the planned use of a pocketknife would have established that it was a dangerous weapon for purposes of enhancement under the burglary statute. J.W. v. State, 849 So.2d 1111, 1111-12 (Fla. 4th DCA 2003) (finding that a pocketknife was not a dangerous weapon where the defendant forcibly entered a home with the pocketknife in his hand but “did not threaten the resident with it or wave it at her”); see also Santiago v. State, 900 So.2d 710, 712 (Fla. 3d DCA 2005) (“[A] jury may conclude that a weapon is either a dangerous or a deadly weapon where the defendant’s words or his actions imply that the weapon is dangerous or deadly.”).

Had the defendant thrown the rock in a manner that was not likely to cause death or great bodily harm, the rock could not be classified as a dangerous weapon. See J.P., 128 So.3d at 61-62 (finding small rocks that were “toss[ed] ... softly” and “merely flick[ed]” at victim were not deadly weapons); E.J. v. State, 554 So.2d 578, 579 (Fla. 3d DCA 1989) (concluding that an unknown object—either a skateboard or rock—thrown at a vehicle and denting it was not a deadly weapon); Forchion v. State, 214 So.2d 751, 752 (Fla. 3d DCA 1968) (finding that a two-foot long piece of a broom handle thrown from twelve to fifteen feet away and inflicting only minor harm was not a deadly weapon). That is not what happened here. Instead, the defendant threatened to hit the guard over the head with a heavy object. He then went and found one, took aim, and retreated only when the guard drew his gun.

This is not a case involving a “simple threat” or a threat it was not clear the defendant could carry, out. The rock was entered into evidence, giving the jury the opportunity to assess its size and weight and whether it was capable of inflicting the great bodily harm that was threatened. Based on the foregoing, we find the trial court did not err in denying the motion for judgment of acquittal and we affirm.

Affirmed.

Gross and Kuntz, JJ., concur.


author: Kuntz, J.

text:
    D.B., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D15-1553, 4D15-1555, 4D15-1556 and 4D15-1557
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

D.B. (“Child”) appeals the circuit court’s adjudication of delinquency in four consolidated delinquency proceedings. He raises two issues on appeal. First, he argues the court erred in denying his motion for dismissal because, as he asserts, there was insufficient evidence to prove he had the specific intent to strike a school employee. Second, he argues the court erred in failing to make any findings regarding his competency even after it ordered a competency evaluation. We affirm as to the first issue without further discussion. However, we agree with the Child as to his second issue, vacate the court’s adjudication of delinquency, and remand for further proceedings.

During the proceedings, the Child’s . counsel moved for a determination of competency. The court found “reasonable grounds” to believe that the Child was not mentally competent to proceed, and appointed two experts to evaluate him. The Department of Juvenile Justice presented the competency evaluations at a “status” hearing; However, the Child contends, and the State agrees, that the court did not make any.findings regarding his competency—oral or written—after the evaluations from the DJJ were presented. This was error. ,

After the court ' found reasonable grounds to question the Child’s competency, it was required to hold a hearing and make findings of competency before it could proceed. Fla. R: Juv. Proc. 8.095(2), (3).

Generally, failing to find a defendant competent after previously finding reasonable grounds to question his competency would entitle the “defendant to receive a new trial, if deemed competent to proceed on remand.” Dougherty v. State, 149 So.3d 672, 678-79 (Fla. 2014). However, “a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the [juvenile] contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing,” A.L.Y. v. State, 212 So.3d 399, 404 (Fla. 4th DCA 2017) (citation omitted); see also Bain v. State, 211 So.3d 139, 140 (Fla. 4th DCA 2017).

We therefore vacate the court’s adjudication of delinquency. Oh remand the court should determine whether a nunc pro tunc competency determination can be made in a manner that comports with due process. If the court determines that a nunc pro tunc competency determination can be done, the court should do so in a written order and, if the Child is found competent, should subsequently re-impose the adjudication of delinquency. However, if the court determines that it is unable to make a nunc pro tunc competency determination in a manner that protects the due process rights of the Child, the court must adjudicate the Child’s current competency and may conduct a new adjudicatory proceeding only after the Child is determined to be competent.

Vacated and remanded for further proceedings.

Gross and Conner, JJ., concur.