author: EDWARDS, J.

text:
    Vincent Joseph KLAUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1079
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 12, 2018
    Rachael E. Bushey, of O'Brien Hatfield P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Vincent Klaus appeals the postconviction court's denial of his rule 3.850 motion for postconviction relief. Appellant argues that the court erred in denying seven claims of ineffective assistance of trial counsel. We affirm in part and reverse and remand in part for attachment of records or an evidentiary hearing.

Following a jury trial, Appellant was convicted of murdering Brian Jarrett. The facts adduced at trial showed that Appellant, John Mitchell, and Jarrett were doing drugs together at a party. When Jarrett repeatedly asked Mitchell for more drugs, Mitchell hit him in the face, knocking him out. Appellant and Mitchell then put Jarrett into the trunk of Appellant's car to scare him. After they had driven some distance, they pulled the car over, opened the trunk, and both Appellant and Mitchell struck Jarrett. According to Mitchell, Appellant kicked Jarrett in the chest and stabbed him several times with a knife. Prior to leaving him there, they removed some of Jarrett's clothing so that he would be humiliated if he tried walking along the road.

Mitchell testified that he and Appellant later purchased gasoline at a specific gas station and returned to the crime scene to burn the body. Mitchell said they then decided to simply hide the body by covering it with vegetation. Mitchell told the jury that at the time of the killing, Appellant's car had a back seat in place and a trunk liner installed. According to Mitchell, Appellant told him Jarrett had scratched his initials on the inside of the trunk, but Appellant had rubbed them out.

Mitchell's girlfriend, Lindsey Liebl, testified that she found Mitchell on the bed crying and he told her that he "thought we killed Jarrett." Liebl testified that she overheard Appellant and Mitchell discussing the idea of moving the body and heard Appellant talking about Jarrett's initials being scratched into the trunk lid. Liebl threw away the clothes Mitchell wore on the night of the murder.

According to the evidence, Jarrett's remains were located ten days after he was reported missing. His body had been concealed by vegetation and some of his clothes were missing. The medical examiner labeled Jarrett's death a homicide and confirmed that the victim had fractured ribs, but he was unable to determine what the cause of death was because the body was in an advanced stage of decomposition. When the police inspected Appellant's car, the back seat had been removed and there was no trunk liner. Appellant told police he had removed the seat in order to install a stereo. He admitted to police that he had been with Mitchell and Jarrett on the night in question but denied involvement in beating or killing Jarrett.

Mitchell pleaded guilty to manslaughter in return for testifying at Appellant's trial, and his sentence was to serve the time previously ordered for a prior drug conviction. Liebl pleaded guilty to charges of being an accessory after the fact and served forty-one months of incarceration in exchange for her testimony at trial. No other fact witnesses connected Appellant to the beating or murder.

As part of his second claim of ineffective assistance of counsel, Appellant asserts that trial counsel failed to conduct a proper factual investigation. Mitchell testified that he and Appellant went to a gas station where they bought gasoline with the intent to burn the victim's body. Appellant claims that if his lawyer had done a proper investigation, it would have been obvious that they did not purchase any gasoline, and in fact never even went to that particular gas station. Appellant argues that trial counsel could have used that information to effectively impeach Mitchell on an issue that certainly pointed to Appellant's guilt. The postconviction court denied relief as to this second claim, finding whether they had purchased gasoline to be inadmissible, collateral impeachment evidence because Jarrett's body had not been burned.

Section 90.608(5), Florida Statutes (2010), states that any party "may attack the credibility of a witness by ... [p]roof by other witnesses that material facts are not as testified to by the witness being impeached." Here, if Appellant's trial counsel had investigated Mitchell's claim that he and Appellant bought gasoline to burn Jarrett's body and found evidence to refute Mitchell's claim, counsel could have impeached Mitchell because whether he and Appellant bought gasoline with the intent to burn the body is a material fact. Cf. Parker v. State , 20 So.3d 966, 969-70 (Fla. 3d DCA 2009). This could have made a difference at trial because Mitchell was a key witness for the State, and thus, his "trustworthiness was critical to the State's case." Smith v. State , 185 So.3d 585, 585 (Fla. 2d DCA 2016) ; see also Gamble v. State , 685 So.2d 1310, 1311 (Fla. 2d DCA 1996).

The portions of the trial transcript the postconviction court attached to its order summarily denying this ground do not conclusively refute this part of Appellant's second claim. Therefore, we reverse and remand for the postconviction court to either attach portions of the record conclusively refuting this claim or conduct an evidentiary hearing.

In claim four, Appellant asserts that trial counsel failed to use available prior inconsistent statements given by Mitchell and Liebl to effectively impeach them. A criminal defendant raises a legally sufficient claim of ineffective assistance of counsel where he or she specifies what portion of a witness's testimony could have been impeached with a prior inconsistent statement and how counsel's failure to impeach prejudiced the defendant. See Delarosa v. State , 24 So.3d 741, 742 (Fla. 2d DCA 2009) ; see also Willich v. State , 79 So.3d 76 (Fla. 1st DCA 2011).

Here, Appellant cited several examples of prior inconsistent statements that could have been used to impeach Liebl. For example, Appellant explained that, in her first statement to law enforcement, Liebl told police that she never went in Appellant's car and did not know whether or when the back seats had been removed. However, at trial Liebl testified that Appellant's car had back seats before the murder but not after. Likewise, Appellant claims that Liebl originally told police, at least twice, that when Mitchell was crying on the bed, he told her that "he might've killed" Jarrett; whereas, at trial she testified that Mitchell said "we might've killed" him.

Mitchell told police during his interview that he had been drinking alcohol, smoking weed, and doing crack, Xanax, and other drugs on the night in question, whereas at trial he claimed only to have used marijuana and alcohol. Presenting that prior statement to the jury would have called into question his veracity and raised questions about the extent of his intoxication and ability to perceive and recall the events of that night. Appellant also pointed to several other inconsistent statements given by Liebl and Mitchell which, while not earthshattering, could have undermined their credibility. In this fourth claim, Appellant alleged that it was imperative that trial counsel impeach Mitchell's and Liebl's testimony as much as possible because their testimony was the only evidence that linked Appellant to Jarrett's murder.

The trial court's summary denial of this claim because "counsel conducted a thorough cross-examination of both witnesses, impeaching them on numerous matters" was error. The records the trial court attached do not conclusively refute Appellant's claim that trial counsel was ineffective for failing to impeach the State's two main witnesses, and thus, we reverse and remand for the trial court to either attach records that conclusively refute Appellant's fourth claim or conduct an evidentiary hearing.

In his sixth claim, Appellant argues that trial counsel was constitutionally ineffective for failing to call any defense witnesses. He asserts that his brother was available and would have confirmed that Appellant removed the back seat from his car to install a stereo, rather than to destroy evidence. Appellant also states that Stephanie Feehan observed the victim sitting in the back seat of Appellant's car, which would have contradicted Mitchell's testimony that they put him in the trunk.

In denying the sixth claim, the postconviction court stated:

At the conclusion of the trial, the Court asked [Appellant] whether he was satisfied with the services of his lawyers and whether there was anything they failed to do, which they should have done. He responded, "I think they did all right." When asked if there was anything they did not do, he admitted, "I don't know." He only offered a vague complaint: "There's a lot of things considering the law that I don't like that certain things can't be brought up, this and that. I feel like it's not fair, but I'm happy with my lawyer, you know."

In Law v. State , 847 So.2d 599 (Fla. 5th DCA 2003), the trial court summarily denied the defendant's motion for postconviction relief that argued trial counsel was ineffective for "failing to interview or call two alibi witnesses to testify on his behalf and support his defense of misidentification." 847 So.2d at 600. In its order, the trial court "point [ed] out that when the court questioned [the defendant] on his decision not to testify, [the defendant] indicated that the court should let defense counsel do his job and that he felt counsel was representing him 'in the best way he can.' " Id. "The trial court found that [the defendant] could have complained of counsel's failure to call witnesses at that point, but failed to do so." Id. We reversed the trial court's summary denial because the defendant's "statement indicating satisfaction, made after the state had rested, may have been based on his belief that it was too late to call witnesses" and failure to call alibi witnesses is a facially sufficient claim. Id. at 600-01.

Similarly, in the present case, Appellant made a facially sufficient claim. See Gutierrez v. State , 27 So.3d 192, 194 (Fla. 5th DCA 2010). Further, Appellant's "statement indicating satisfaction, made after the state had rested, may have been based on his belief that it was too late to call witnesses." Law , 847 So.2d at 600. This court has stated, "[A] statement of satisfaction with counsel alone is generally insufficient to conclusively refute a claim that counsel was ineffective for failing to call a witness." Evans v. State , 210 So.3d 704, 705 n.1 (Fla. 5th DCA 2017) (citing Law , 847 So.2d at 600-01 ). Therefore, because the court did not attach portions of the record to sufficiently rebut Appellant's claim nor did it grant an evidentiary hearing on this claim, we reverse and remand claim six of Appellant's motion for the postconviction court to either attach portions of the record to rebut Appellant's claim or grant an evidentiary hearing on the claim. See Kearse v. State , 876 So.2d 1291, 1292 (Fla. 5th DCA 2004) ; see also Evans , 210 So.3d at 705 n.1.

After a thorough review of the record, we affirm as to Appellant's other four claims. We reverse and remand the court's order denying Appellant's second, fourth, and sixth claims with instruction for the postconviction court to either attach records that conclusively refute the claims or to conduct an evidentiary hearing.

AFFIRMED IN PART, REVERSED IN PART WITH INSTRUCTIONS.

SAWAYA and BERGER, JJ., concur.

      Although Appellant raised eight claims in his amended motion for postconviction relief, he only addressed the first seven claims in his initial brief, thereby waiving the eighth. See Austin v. State , 968 So.2d 1049, 1049 (Fla. 5th DCA 2007).


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Everad Glen PINNOCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1711
    District Court of Appeal of Florida, Second District.
    January 12, 2018
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Everad Glen Pinnock appeals the revocation of his probation and resulting sentences. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). As explained below, we affirm the revocation of his probation and his sentences; however, we remand for the trial court to enter a corrected revocation order.

Background

Mr. Pinnock was serving five years' probation for use of a computer to seduce a minor, see § 847.0135(3), Fla. Stat. (2006), and attempted lewd or lascivious battery on a child, see §§ 777.04(1), 800.04(4)(a), Fla. Stat. (2006). As a term of his probation, the trial court ordered that Mr. Pinnock could not have access to the internet without a treatment safety plan in place. Mr. Pinnock's probation officer instructed him that he could not possess a phone that could access the internet.

Mr. Pinnock lived in sex offender housing where he was subject to annual searches. During one of those routine searches in January 2016, the probation officer learned that Mr. Pinnock owned a Samsung Galaxy S5 phone that contained applications for prohibited websites.

The State alleged that Mr. Pinnock willfully and substantially violated conditions 7 and 55 of his probation. Condition 7 required that Mr. Pinnock comply with all instructions from his probation officer. Condition 55 prohibited Mr. Pinnock from accessing the internet without a safety plan. At the conclusion of the hearing, the trial court revoked Mr. Pinnock's probation and sentenced him to sixty-nine months in prison. Unfortunately, in announcing its ruling, the trial court did not specify which conditions of probation Mr. Pinnock violated. Approximately three months later, the trial court entered a written revocation order finding Mr. Pinnock in violation of conditions 7 and 55.

Standard of Review

Our standard of review involves a two-step process. Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013). "[W]e first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence." Id. Then, we review the trial court's decision to revoke probation under an abuse of discretion standard. Id. at 623. "This standard of review rarely results in relief because it requires affirmance of the trial court order unless no reasonable judge could have reached the decision challenged on appeal." Clark v. State, 95 So.3d 986, 987 (Fla. 2d DCA 2012) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) ).

Analysis

Mr. Pinnock first argues that the State did not prove by the greater weight of the evidence that he accessed the internet on his phone. Thus, he disavows violating condition 55. The State presented no evidence to support its allegation. Accordingly, we are compelled to agree with Mr. Pinnock.

Mr. Pinnock's probation officer was the only witness called by the State at the revocation hearing. She admitted that there was no proof that Mr. Pinnock actually ever used his phone to access the internet. In his defense, Mr. Pinnock testified that he never utilized his phone for internet access. The State presented no other evidence or argument in support of this purported violation.

Rather, the State focused exclusively on Mr. Pinnock's failure to abide by his probation officer's instructions that he not possess a phone with internet access. To that end, Mr. Pinnock's probation officer testified that she reviewed the terms of probation with him and instructed him that "he was not to ... have a cell phone that had internet access or any other type of computer service." She stated that Mr. Pinnock's phone "contained apps, Gmail, Gmail addresses, T-Mobile chat on and clipboard hangouts."

Our record contains no competent substantial evidence that Mr. Pinnock willfully and substantially violated condition 55. Indeed, the trial court's questioning focused upon the alleged violation of condition 7. We conclude that there was no competent substantial evidence to support revocation based upon a violation of condition 55.

We next address Mr. Pinnock's contentions that the State did not prove a violation of condition 7, and that his probation officer imposed a new probation condition that he not possess a smartphone. See Ramirez v. State, 4 So.3d 752, 753 (Fla. 2d DCA 2009) ("[W]hile a probation officer may give routine, supervisory instructions to a 'probationer, the probation officer cannot prescribe new conditions of probation.' " (quoting Hutchinson v. State, 428 So.2d 739, 740 (Fla. 2d DCA 1983) )); see also Miller v. State, 958 So.2d 981, 984-85 (Fla. 2d DCA 2007) ("[A]n instruction that essentially imposes a new condition of probation is not a routine supervisory direction and cannot support a finding that the probationer is in violation." (citing Haynes v. State, 440 So.2d 661, 662 (Fla. 1st DCA 1983) )).

Condition 7 required Mr. Pinnock to comply with all instructions from his probation officer. He ignored her instructions and possessed a phone with internet access. We note that Mr. Pinnock did not raise this specific issue with the trial court. Accordingly, he did not preserve the matter for our review. See Chamberlain v. State, 881 So.2d 1087, 1100 (Fla. 2004) (explaining that it is well-settled that the specific legal ground upon which a claim is based must be raised at trial to be preserved on appeal); Spann v. State, 857 So.2d 845, 852 (Fla. 2003) ; Estate of Herrera v. Berlo Indus., Inc., 840 So.2d 272, 273 (Fla. 3d DCA 2003) ("[I]ssues not presented in the trial court cannot be raised for the first time on appeal." (citing Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So.2d 1056, 1057 (Fla. 3d DCA 1984) )).

Even if preserved, the argument lacks merit. Mr. Pinnock is a sex offender. The prohibition of possessing an internet accessible cellphone is reasonably related to the trial court's instruction barring him from accessing the internet without a treatment safety plan. See Odom v. State, 15 So.3d 672, 681 (Fla. 1st DCA 2009) (holding that the probation officer's instruction that Odom meet with her at her office within the first five days of each month was a reasonable and necessary procedure for implementing the meeting requirement clearly set forth in the written conditions of probation).In this case, it is reasonable that Mr. Pinnock's probation officer would instruct him not to possess a smartphone. Mr. Pinnock was convicted of using the internet to solicit sexual activities with a minor. Obviously, the probation officer's instruction was consistent with Odom and promoted effective supervision by the probation officer.

Conclusion

Despite the trial court's erroneous finding that Mr. Pinnock violated condition 55, the trial court properly revoked his probation based upon his violation of condition 7. See Carrington v. State, 168 So.3d 285, 288 (Fla. 2d DCA 2015) ("We also conclude that it is clear from the record that the trial court would have revoked probation even without its reliance on conditions (3) and (9)."). Because we find no abuse of discretion, we affirm the revocation of Mr. Pinnock's probation and his resulting sentences. However, we remand for the trial court to enter an amended revocation order excising its finding that Mr. Pinnock violated condition 55.

Affirmed; remanded with instructions.

MORRIS and SALARIO, JJ., Concur.


text:
    Dwanquel Antonio BRYANT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2677
    District Court of Appeal of Florida, Second District.
    Opinion filed January 17, 2018
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Dwanquel Antonio Bryant appeals his probation revocation and resulting sentence. The trial court found that he committed multiple probation violations. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm the trial court's revocation and Mr. Bryant's sentence. But, as the State properly concedes, there was insufficient evidence to support revocation based upon a violation of condition three. Accordingly, we remand for entry of a corrected revocation order.

Condition three prohibited Mr. Bryant from changing residences without first obtaining his probation officer's consent. At the revocation hearing, Mr. Bryant's probation officer, Derrell Steven, testified that on two separate occasions he unsuccessfully tried to contact Mr. Bryant at his residence. Mr. Steven also testified that following his fruitless attempts to contact Mr. Bryant, he learned that deputies from the Hillsborough County Sheriff's Office had also previously attempted in vain to serve an arrest warrant on Mr. Bryant at the same address. The State offered no other evidence to prove a violation of condition three.

In determining whether a probationer willfully and substantially violated probation, the trial court must determine whether the State proved the allegations by the greater weight of the evidence. Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013). In reviewing the revocation order on appeal, "we first assess whether the finding of a willful and substantial violation is supported by competent substantial evidence." Id.

The evidence before us does not reach that threshold. In Gary v. State, 987 So.2d 180, 181 (Fla. 2d DCA 2008), the probation officer testified that she visited Ms. Gary's residence several times, that Ms. Gary was not present, and that Ms. Gary's adult daughter, who also lived at the home, reported that Ms. Gary had moved away. We held that "[t]he fact that the probation officer did not find Gary at home when she visited did not prove that Gary had moved"; the hearsay evidence from Ms. Gary's daughter, standing alone, was insufficient to support the finding of a violation. Id.; see also Crawford v. State, 982 So.2d 1, 2 (Fla. 2d DCA 2008) (stating that hearsay testimony from Crawford's sister that he no longer resided with her at his approved residence was legally insufficient to support probation revocation). Similarly, the trial court's basis for finding a violation of condition three was Mr. Steven's testimony that Mr. Bryant was not at his residence when he visited, coupled with hearsay evidence concerning the sheriff's office's efforts to serve an arrest warrant.

We find no error in the trial court's finding that Mr. Bryant violated conditions one, five, nine, and special condition eight. Nor do we conclude that these violations were not willful and substantial. Therefore, we affirm the revocation of Mr. Bryant's probation based on these violations. However, we remand for entry of a corrected order of revocation that omits any reference to a violation of condition three. Cf. Bernier v. State, 951 So.2d 21, 22 (Fla. 2d DCA 2007) (upholding order of revocation where record was "clear that the trial court would have revoked Bernier's probation based solely on the violation of [a single condition of probation]").

Further, we note that there is a scrivener's error in the revocation order, indicating two violations of condition one. One of these violations is actually a violation of special condition one, for which the State established a violation by competent, substantial evidence. Upon remand, the trial court shall enter an amended revocation order stating that Mr. Bryant violated conditions one, five, nine, and special conditions one and eight.

Affirmed; remanded with instructions.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Bilbrey, J.

text:
    Patrick FERRANDINO and Maria Forrero, Appellants, v. Cynthia RILEY, Appellee.
    No. 1D17-1187
    District Court of Appeal of Florida, First District.
    January 22, 2018
    Thomas Erskine Ice of Ice Appellate, Lake Worth, for Appellants.
    Elliot B. Kula of Kula & Associates, P.A., Miami; Jonathan M. Weiss, pro hac vice, Los Angles, CA, for Appellee.
   Bilbrey, J.

Appellants challenge the circuit court's order quashing their subpoena duces tecum for deposition and granting Appellee's motion for a protective order. See Fla. R. Civ. P. 1.280(c). Finding no abuse of the circuit court's broad discretion to regulate discovery, particularly the court's finding that enforcement of the subpoena would subject Appellee to an undue burden and harassment, we affirm. See Waite v. Wellington Boats, Inc. , 459 So.2d 425, 426 (Fla. 1st DCA 1984) ("Trial courts must be accorded broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by rule 1.280."); Mathews v. Kant , 427 So.2d 369, 370 (Fla. 2d DCA 1983) (requiring "some facts before the court tending to show the unreasonableness and oppressiveness" to support the quashing of a subpoena).

Appellants challenge the sufficiency of the evidence to support the circuit court's conclusion that the subpoena subjected the non-party witness to "an undue burden and harassment." However, the circuit court's factual findings of Appellee's dates of employment by a non-party company, her capacity to indorse the promissory note at issue in the foreign state litigation, and the timing of the service of the subpoena so late in the long-pending foreign lawsuit are supported by the appellate record including Appellee's affidavit and other documents. And while the circuit court held a hearing on the motion to quash and for protective order, Appellants did not provide a transcript of this hearing for the record. Accordingly, we must presume that any deficiency in the documentary evidence to support the circuit court's decision was cured "based 'on evidence adduced at the hearing.' " Snowden v. Wells Fargo Bank , 172 So.3d 506, 508 (Fla. 1st DCA 2015) (quoting J. P. Morgan Chase Bank v. Combee , 883 So.2d 330, 333 (Fla. 1st DCA 2004) ); see also Banks v. Banks , 168 So.3d 273 (Fla. 2d DCA 2015).

Although reasonable fact-finders could differ on the weight and credibility to assign Appellee's affidavit and the other record documentation for the determination of whether a protective order was warranted under rule 1.280, such possibility does not render the trial court's order an abuse of discretion. See Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980) ("If reasonable [people] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.").

AFFIRMED .

Lewis and Osterhaus, JJ., concur.

      The action in the Florida circuit court was filed by the Appellants, who are the defendants in a civil case pending in Connecticut, for the purpose of deposing the non-party witness who resides in Florida. See § 92.251(2), Fla. Stat. Florida law governs the enforcement of, and the witness' objections to, the deposition proceedings. See Greenlight Fin. Servs., Inc. v. Union Am. Mortg., Inc. , 971 So.2d 983 (Fla. 3d DCA 2008).


author: LAMBERT, J.

text:
    PENTON BUSINESS MEDIA HOLDINGS, LLC f/k/a Prism Business Media, Inc., Appellant, v. ORANGE COUNTY, Florida, AFX Special Effects, Inc. d/b/a Art F/X and Ultratec Special Effects, Inc., Appellees.
    Case No. 5D16-3935
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 26, 2018
    G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant.
    Jeffrey J. Newton, County Attorney and William C. Turner, Jr. Assistant County Attorney, of Orange County Attorney's Office, Orlando, for Appellee Orange County Florida.
    No appearance for Appellees AFX Special Effects, Inc. and Ultratec Special Effects, Inc.
   LAMBERT, J.

Appellant, Penton Business Media Holdings, LLC ("Penton"), appeals the final summary judgment awarding damages in favor of appellee, Orange County, Florida ("County"), on the sole count of breach of the lease agreement entered into between the parties. Although we do not necessarily agree with the one aspect of the trial court's analysis finding that Penton is liable to County based upon the breach of an allegedly implied covenant that the court concluded was running with the land, we otherwise affirm the final judgment determining liability in favor of County without further discussion. However, we reverse the judgment on the issue of damages because genuine issues of material fact remain.

Penton entered into a lease agreement with County to lease certain premises located at the Orange County Convention Center for the purpose of hosting a trade show. Penton agreed to be responsible for damage to the premises caused by Penton or its "employees, agents or guests" during the term of the lease. Penton invited and secured sponsors and exhibitors to appear at its trade show. One of its exhibitors advised Penton that it desired to perform a flame effect demonstration at the trade show. This exhibitor was required to perform a pre-trade-show test of its flame effect devices before being allowed to display the flame effect demonstration in front of the general public. During this pre-show demonstration, County's fire safety sprinklers activated, causing extensive water damage to that portion of the leased premises.

In one of its affirmative defenses, Penton alleged that County's damages to its property were either "created or enhanced" by its failing to shut down or disengage the sprinkler system as soon as reasonably possible. Although this defense is sometimes mistakenly identified as invoking a "duty to mitigate," the defense is actually based on the doctrine of avoidable consequences, which simply "prevents a party from recovering those damages inflicted by a wrongdoer that the injured party could have reasonably avoided." Sys. Components Corp. v. Fla. Dep't of Transp. , 14 So.3d 967, 982 (Fla. 2009) (quoting The Florida Bar, Florida Civil Practice Damages § 2.43, at 2-30 (6th ed. 2005) ). This doctrine does not reduce damages "based on what 'could have been avoided' through Herculean efforts." Id. (citing Thompson v. Fla. Drum Co. , 651 So.2d 180, 182 (Fla. 1st DCA 1995) ). Instead, a plaintiff is responsible only for those damages that it could have avoided had it exercised "ordinary and reasonable care." Id.

As the party moving for summary judgment, County bears the burden of establishing that, based on the "pleadings, depositions, answers to interrogatories, admissions, affidavits, and other material as would be admissible in evidence on file," there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC , 209 So.3d 622, 624 (Fla. 5th DCA 2017) (quoting Taylor v. Bayview Loan Servicing, LLC , 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011) ). Summary judgment evidence must be considered in the light most favorable to the non-moving party, id. at 625 (citing Sierra v. Shevin , 767 So.2d 524, 525 (Fla. 3d DCA 2000) ), and if the record raises the possibility of any genuine issue of material fact or "even the slightest doubt that an issue might exist," summary judgment is improper. Lin v. Demings , 219 So.3d 124, 125 (Fla. 5th DCA 2017) ; accord Snyder v. Cheezem Dev. Corp. , 373 So.2d 719, 720 (Fla. 2d DCA 1979). In ruling on a summary judgment motion, the trial court may not weigh the evidence or determine the credibility of witnesses. Lin , 219 So.3d at 125 (citing Jones v. Stoutenburgh , 91 So.2d 299, 302 (Fla. 1956) ). Finally, "[t]he moving party must also disprove the affirmative defenses or establish that they are insufficient as a matter of law." T-Quip of Fla. , Inc. v. Tietig , 207 So.3d 958, 960 (Fla. 5th DCA 2016) (citing Stop & Shoppe Mart, Inc. v. Mehdi , 854 So.2d 784, 786 (Fla. 5th DCA 2003) ).

We apply a de novo standard of review to the final summary judgment. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). Having reviewed the record, including the transcript of the summary judgment hearing, and applying the aforementioned familiar standards, we conclude that County has not conclusively refuted Penton's affirmative defense that County failed to exercise ordinary and reasonable care in disconnecting the sprinkler system and that if it had done so, the water damage incurred by County could have been avoided. Accordingly, we reverse that part of the final summary judgment awarding damages and remand to the trial court for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA and EVANDER, JJ., concur.


author: Winsor, J.

text:
    Chad Eric SPEEGLE, Appellant, v. Lauren A. RHODEN, Appellee.
    No. 1D17-596
    District Court of Appeal of Florida, First District.
    January 26, 2018
    James P. Hill and Nelson E. Sierra, Jacksonville, for Appellant.
    No appearance for Appellee.
   Winsor, J.

After Chad Speegle severely beat Lauren Rhoden, two legal proceedings followed: the State charged Speegle with battery, and Rhoden petitioned for an injunction against dating violence. Speegle pleaded no contest in the criminal case, and the court granted a permanent injunction in the civil case.

After Rhoden petitioned for an injunction, the trial court promptly entered a temporary injunction and scheduled a hearing to consider a permanent injunction. Then, the day before the scheduled hearing, Speegle moved to stay the proceedings until his related criminal case concluded. He argued that defending himself in the injunction case would jeopardize his Fifth Amendment right against self-incrimination. He also argued that a stay would not prejudice Rhoden, because he agreed that the temporary injunction could remain effective in the meantime. The hearing went ahead, and Speegle again moved for a stay. Rhoden objected, and the court denied the motion. After the hearing, during which Rhoden (but not Speegle) testified, the court entered a permanent injunction. Later, Speegle pleaded no contest to the criminal charge and was placed on probation.

Speegle asks us to reverse the permanent injunction, claiming the lower court should have granted a stay. As he did below, Speegle argues that the court was obligated to stay the injunction proceedings to protect his Fifth Amendment right. See § 741.30(5)(c), Fla. Stat. (2016) (providing that a court may grant a continuance of the final injunction hearing "for good cause shown by any party"). More specifically, he argues that he could not effectively defend himself in the injunction proceeding without testifying, and he could not testify without risking self-incrimination.

Although a number of judges faced with Speegle's request might have granted it, we cannot say Speegle's judge abused his wide discretion in doing otherwise. See Everett v. Everett , 196 So.3d 483, 484 (Fla. 1st DCA 2016) (reviewing the lower court's decision on a motion to stay under the "highly deferential" abuse of discretion standard and noting that "the court most familiar with the controversy is in the best posture to determine the appropriateness and conditions of a stay" (citations omitted) ). Speegle essentially asks us to announce a per se rule requiring a stay in civil proceedings when related criminal matters are pending. But there is no such rule. See Urquiza v. Kendall Healthcare Grp., Ltd. , 994 So.2d 476, 478 (Fla. 3d DCA 2008) ("Although under certain circumstances, a trial court may grant a stay in a civil proceeding for a limited time during the pendency of a concurrent criminal proceeding, such a stay is not constitutionally required."); see also United States v. Lot 5, Fox Grove, Alachua County, Fla. , 23 F.3d 359, 364 (11th Cir. 1994) ("[A] court must stay a civil proceeding pending resolution of a related criminal prosecution only when special circumstances so require in the interests of justice .... The court may deny a stay so long as the privilege's invocation does not compel an adverse judgment against the claimant." (marks and citation omitted) ); United States v. Little Al , 712 F.2d 133, 136 (5th Cir. 1983) ("The very fact of a parallel criminal proceeding ... did not alone undercut [defendant's] privilege against self-incrimination, even though the pendency of the criminal action forced him to choose between preserving his privilege against self-incrimination and losing the civil suit." (marks and citation omitted) ). And although Speegle argues there would be no harm in delay, that is not always the case-and it is not necessarily the case here. Trial judges consider any number of factors in deciding whether to grant a stay: among other things, the availability of witnesses and the fading memories associated with delay.

The trial court had broad discretion in deciding whether to delay Speegle's case, and we cannot conclude that the court abused that discretion.

AFFIRMED .

Wolf and Rowe, JJ., concur.


author: PER CURIAM.

text:
    Jose Ismael TORRES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4395
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Jose Ismael Torres, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Torres' judgment and sentence without further comment but remand for correction of a scrivener's error. Pursuant to section 775.087(2)(a)1.p., Florida Statutes (2015), the ten-year minimum mandatory sentence should have been imposed for the crime of possession of a firearm during the commission of a trafficking offense. Instead, the trial judge inadvertently applied it to the drug trafficking charge pursuant to section 893.135(1), Florida Statutes (2015). We, therefore, remand for the trial court to make the correction in the written sentence.

AFFIRMED; REMANDED for correction of scrivener's error.

BERGER, WALLIS, and EISNAUGLE, JJ., concur.


author: Wetherell, J.

text:
    Ryan Erick CHENEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2443
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Ryan Erick Cheney was convicted of armed robbery and sentenced to life in prison. His sole claim on appeal is that the trial court erred by failing to conduct a complete Faretta inquiry after he made an unequivocal request to represent himself. We affirm because the record establishes that Cheney abandoned his request for self-representation.

I

Cheney was charged with armed robbery of a convenience store. The robbery was captured by the store's security camera and the video showed Cheney pointing a handgun at the store clerk, demanding and receiving money from the register, and discharging the gun into the floor during the robbery. Cheney admitted in a post- Miranda interview with police that he committed the robbery, but he claimed that the gun discharged accidentally.

At a pre-trial hearing, Cheney made an unequivocal request to represent himself. He explained that he wanted to represent himself so he could pursue an insanity defense that his court-appointed counsel had refused to raise. Cheney's counsel told the judge that he did not believe there was a good faith basis to raise this defense and that he was concerned that asserting the defense would allow the state to bring in evidence of another robbery committed by Cheney a week or so before the offense in this case. The judge expressed concerns about Cheney's ability to represent himself, but nevertheless dutifully commenced a Faretta inquiry.

During the course of the inquiry, the judge decided sua sponte to order an evaluation to determine whether Cheney was insane at the time of the offense. The judge recommended that Cheney proceed with counsel pending the evaluation, but he made clear to Cheney that "I can't make you do that" and "[i]f you want to represent yourself, you can." Then, after further explaining the dangers and disadvantages of self-representation, the judge asked Cheney whether he was "willing to allow [his court-appointed counsel] to continue to represent you while you explore [the insanity defense]." Cheney responded, "Yes, Your Honor." The court then directed Cheney's counsel to prepare an order for the evaluation.

The evaluation concluded that, although Cheney's capacity to appreciate the criminal nature of his conduct "was likely greatly impaired," he was not insane at the time of the armed robbery in this case. The case thereafter proceeded to a nonjury trial at which Cheney was represented by his court-appointed counsel. Cheney did not at any point after the evaluation object to counsel's continued representation, nor did he again request to represent himself.

The judge found Cheney guilty as charged. Then, after a sentencing hearing at which Cheney's counsel relied on the insanity evaluation report for mitigation, the judge sentenced Cheney to life in prison with a 20-year mandatory minimum term under the 10-20-life statute.

This appeal followed.

II

A criminal defendant has a Sixth Amendment right to waive court-appointed counsel and represent himself. Faretta , 422 U.S. at 819, 95 S.Ct. 2525. Where, as here, the defendant makes an unequivocal request to represent himself, the trial court is required to conduct an inquiry to determine whether the defendant's waiver of the right to court-appointed counsel is knowing and intelligent. Id. at 835, 95 S.Ct. 2525 (explaining that the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open' " (quoting Adams v. U.S. ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) )); see also Neal v. State , 132 So.3d 949, 950 (Fla. 1st DCA 2014) (explaining that "it is error to deny a defendant's unequivocal request to represent himself, regardless of his legal skills or the complexity of the case, if the trial court determines that the defendant made a knowing and intelligent waiver of the right to counsel and 'does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself' " (quoting Fla. R. Crim. P. 3.111(d)(3) )).

Here, the judge commenced the required inquiry to rule on Cheney's request to represent himself. However, the judge did not complete the inquiry or definitively rule on the request because, after the judge sua sponte ordered the evaluation that would be needed for Cheney to raise an insanity defense, Cheney unequivocally told the judge that he was willing to allow defense counsel to continue to represent him. By doing so, Cheney abandoned his then-pending request to represent himself. See Brown v. Wainwright , 665 F.2d 607, 611 (5th Cir. 1982) (en banc ) ("Even if defendant requests to represent himself, however, the right may be waived through defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether."); Kearse v. State , 605 So.2d 534, 537 (Fla. 1st DCA 1992), ("Waiver may appear if it is reasonably shown that the defendant has abandoned an initial request for self-representation.").

Cheney contends that he did not abandon his request to represent himself, and in support of this argument, he relies exclusively on Kearse and Lindsey v. State , 69 So.3d 363 (Fla. 5th DCA 2011). However, that reliance is misplaced because those cases are distinguishable.

In Kearse , the state argued that the defendant waived his right to self-representation by requesting continuances to speak with his court-appointed attorney and by proceeding to trial with the attorney. 605 So.2d at 538. This Court rejected that argument "because the [trial] court had previously denied [the defendant's] motion for self-representation." Id. ; see also Brown , 665 F.2d at 612 (explaining that a defendant need not "continually renew his request to represent himself even after it is conclusively denied by the trial court"). Here, by contrast, the trial court did not conclusively deny Cheney's request for self-representation, nor was there any need for the court to rule on the request after Cheney expressly agreed to allow his court-appointed counsel to continue to represent him. See Lowe v. State , 650 So.2d 969, 975 (Fla. 1994) (rejecting defendant's claim that trial court erred in failing to conduct a Nelson inquiry when the defendant told the trial court "[n]ever mind ... [j]ust forget it" while the court was questioning the defendant about his concerns with his counsel).

In Lindsey , the state argued that the defendant waived his request to represent himself when he proceeded to trial with court-appointed counsel after the trial court denied his request to discharge counsel. 69 So.3d at 365-66. The Fifth District rejected this argument because the defendant "never agreed to have his appointed counsel continue to represent him, nor was there any indication that [he] and his counsel had resolved their differences." Id. at 365. Here, by contrast, Cheney specifically agreed to allow his court-appointed counsel to continue to represent him while exploring the insanity defense that he wanted to pursue, and at no point after the evaluation did Cheney reassert his request to represent himself or object to counsel continuing to represent him.

This case is more like Brown in which the en banc Fifth Circuit affirmed the denial of federal habeas relief to a defendant who claimed that the state trial court had denied his right to represent himself. 665 F.2d at 609. The defendant in Brown made an unequivocal request to represent himself, which was presented to the trial court in a motion for leave to withdraw filed by counsel. Id. The trial court deferred ruling on the motion because of concerns about the defendant's ability to conduct his defense. Id. Then, after defense counsel informed the trial court that he and the defendant resolved their difficulties and that the defendant changed his mind and wanted counsel to continue to represent him, the court "denied the motion to withdraw or considered it abandoned." Id. The federal district court denied the defendant's petition for habeas relief, and on appeal, the Fifth Circuit affirmed because the record established that the defendant waived his previously-asserted right to represent himself when, after counsel informed the trial court that the defendant wanted counsel to continue to represent him, the defendant never informed the court that he still wanted to represent himself. Id. at 612 ("More importantly, at no time subsequent to counsel's assertions was the judge informed by defendant that he still desired to represent himself ...."). The same is true here because at no point after Cheney agreed to allow his court-appointed counsel to continue to represent him did he inform the trial court that he still wanted to represent himself.

III

In sum, the trial court did not err by failing to conduct a complete Faretta inquiry because Cheney abandoned his request to represent himself when he expressly agreed to allow his court-appointed counsel to continue to represent him. Accordingly, we affirm Cheney's judgment and sentence.

AFFIRMED.

Rowe and Jay, JJ., concur.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      § 775.087(2)(a)2., Fla. Stat. (2016).

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


text:
    Elton Lee BAKER, Sr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-4116
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Elton Lee Baker, Sr., Lowell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 21, 2017 order denying Petitioner's petition for writ of habeas corpus, filed pursuant to Florida Rule of Criminal Procedure 3.850(m), in Case No. 2017-CA-69 in the Circuit Court in and for Sumter County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Tracey MACKEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3760
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Tracey Mackey, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Tracey Mackey, appeals the summary denial of his amended motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. In his amended motion, he raised four claims, one of which was that his trial counsel was ineffective for failing to call a witness who would have offered key testimony supporting his defense at trial. The trial court denied this claim, reasoning that it was successive. On appeal, Appellant argues this was error. We agree and reverse as to that claim only. We otherwise affirm.

The record reflects that the trial court summarily denied Appellant's original rule 3.850 motion (the "original motion") on the merits, after addressing this same claim that trial counsel was ineffective for failing to call the key witness. Appellant appealed that denial, and this court reversed, finding that his original motion was facially insufficient, and that Appellant was entitled to an opportunity to amend. Mackey v. State , 219 So.3d 1009, 1009 (Fla. 5th DCA 2017). On remand, Appellant filed the instant amended motion for postconviction relief.

Although the trial court denied Appellant's original motion on the merits, this court reversed that order based on the facial insufficiency of Appellant's motion, providing Appellant the opportunity to file an amended motion. Thus, the original motion was not decided on the merits, and therefore Appellant's key witness claim in the amended motion cannot be considered. See Crescenzo v. State , 987 So.2d 150, 151 (Fla. 2d DCA 2008) ("[A] successive motion that raises the same grounds as a prior motion may not be dismissed if those grounds were not previously adjudicated on their merits." (citation omitted) ); see also Rosenkrantz v. Hall , 172 So.2d 518, 519 (Fla. 3d DCA 1965) ("[A]n order which is reversed must be treated as though the order had never been rendered." (citing, inter alia , S. Fla. Lumber & Supply Co. v. Read , 65 Fla. 61, 61 So. 125 (1913) ) ). Further, we find that the amended motion is facially sufficient as to this claim. We therefore reverse the summary denial and remand for the trial court to either attach records conclusively refuting Appellant's key witness claim, or to hold an evidentiary hearing. We affirm as to Appellant's other claims.

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Ritchy BIENAIME, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3643
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Ritchy Bienaime, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca R. McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. We affirm the postconviction court's dismissal of Appellant's rule 3.850 motion. We do so without prejudice for Appellant to file a motion for postconviction relief, if appropriate, upon issuance of the mandate in his previously filed direct appeal, case number 5D17-3164.

EVANDER, LAMBERT, and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    Cleveland FERGUSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3700
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Cleveland Ferguson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    Eric SCHRAMM, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D15-5913
    District Court of Appeal of Florida, First District.
    February 19, 2018
    Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   Per Curiam.

AFFIRMED . See Novaton v. State , 634 So.2d 607, 609 (Fla. 1994) (holding that a double-jeopardy claim is waived when the defendant enters into a negotiated plea agreement).

Ray, Makar, and Winsor, JJ., concur.


author: WALLIS, J.

text:
    David NEWMAN, Petitioner, v. Glenn HIRST and Werner Enterprises, Inc., Respondents.
    Case No. 5D17-2482
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 16, 2018
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Petitioner.
    Brian D. Stokes and Brandon M. Smith, of Alvarez, Winthrop, Thompson & Storey, P.A., Orlando, for Respondents.
   WALLIS, J.

David Newman petitions this court for a writ of certiorari, seeking to quash the trial court's order finding that he expressly waived all privilege objections to the respondents' Boecher interrogatories. We find that the trial court departed from the essential requirements of the law by determining that Newman's agreement to "answer" discovery requests constituted an express waiver of all privileges. See Paradise Divers, Inc. v. Upmal, 943 So.2d 812, 814 (Fla. 3d DCA 2006) ; Liberty Mut. Ins. v. Lease Am., Inc., 735 So.2d 560, 561-62 (Fla. 4th DCA 1999). We grant the petition, quash the order, and remand to the trial court for further proceedings.

PETITION GRANTED.

PALMER and EDWARDS, JJ., concur.

      Allstate Ins. v. Boecher, 733 So.2d 993 (Fla. 1999).


text:
    Derek HIGHT, Appellant, v. Linda CAMPBELL, Roderick Campbell, Ivy Renee Webb, Ricky Campbell, Reginald Campbell, Ronald Campbell and Toronto Campbell, In re: Estate of Kelly W. Campbell, Appellees.
    No. 1D17-2396
    District Court of Appeal of Florida, First District.
    February 22, 2018
    Taso M. Milonas of Taso M. Milonas, P.A., Sarasota and Judy-Ann Smith of Judy-Ann Smith Law Firm, P.A., Jacksonville, for Appellant.
    Jordan Hammer and Jeffrey H. Skatoff of Clark Skatoff P.A., Palm Beach Gardens, for Appellees Roderick Campbell, Ivy Renee Webb, Ricky Campbell, Reginald Campbell, Ronald Campbell, and Toronto Campbell.
   PER CURIAM.

AFFIRMED . See Rose v. Sonson , 208 So.3d 136 (Fla. 3d DCA 2016).

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    Raymond Lamont CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4167
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Andy Thomas, Public Defender, and Brenda L. Roman, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, for Appellee.
   Per Curiam.

Appellant pleaded no contest to several drug charges and resisting an officer. He had been a passenger in a car stopped by police, and he gave a false name, disobeyed instructions to stay in the car, and ran off. Officers apprehended him and found drugs.

In pleading no contest, Appellant reserved his right to appeal the trial court's order denying his motion to suppress. His sole argument on appeal is that officers had no basis to detain him when they stopped the vehicle in which he was riding. But as he acknowledges in his reply brief, the recent Florida Supreme Court decision in Presley v. State forecloses this argument. 227 So.3d 95 (Fla. 2017), cert. denied , No. 17-7139, 583 U.S. ----, 138 S.Ct. 1007, --- L.Ed.2d ---- (Feb. 20, 2018).

AFFIRMED .

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    Eddie James MOULTRIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-2575
    District Court of Appeal of Florida, First District.
    February 19, 2018
    Eddie James Moultrie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002).

Ray, Bilbrey, and Winokur, JJ., concur.